Coyote Blog

First, congrats to many millions of people who can remain in this country, a status they should have always have had.  We can argue whether anyone who makes his or her way over the border should be able to vote or draw benefits, but there is no doubt in my mind that they should be able to live anywhere they can pay the rent and work anywhere that there is an employer willing to pay them.

I am willing to accept the analysis of folks like Ilya Somin who say that the President's non-enforcement decision on immigration laws is legal.  But I think his concept of "precedent" when he says there are precedents for this sort of thing is way too narrow.  This is an important, dangerous new precedent.

What I think folks are missing who make this argument about precedent is that while many examples exist of the Executive Branch excercising proprietorial discretion, the circumstances are without precedent in both scale and well as in its explicit defiance of legislative intent.  One can argue that Reagan's executive actions vis a vis immigration provide a precedent, for example, but Reagan was essentially following the intent of then-recent Congressional legislation, arguably just fixing flaws with executive orders in the way that legislation was written.  What he did was what Congress wanted.

The reason I think Tiberius Gracchus is a good analog is that Gracchus too took actions that were technically legal.  Tribunes always technically had the legal power to bypass the Senate, but in hundreds of years had never done so.  Despite their technical legality, his actions were seen at the time as extremely aggressive and plowing new Constitutional ground, ground that would soon become a fertile field for authoritarians to enhance their power.

Somin includes the following, which I think is an example of where defenders of the President's process (as different from the outcomes) are missing reality.  He writes:

I would add that the part of the president’s new policy offering work permits to some of those whose deportation is deferred in no way changes the analysis above. The work permits are merely a formalization of the the president’s exercise of prosecutorial discretion here, which indicates that the administration will not attempt to deport these people merely for being present in the United States and attempting to find jobs here. They do not purport to legalize their status, and the policy of nondeportation can be reversed at any time by the president or his successor.

This is one of those statements that are technically true, but totally obtuse at the same time.   Issuing formal get-out-of-jail-free cards to 5 million people is unprecedented.  Think of it this way:  Imagine a Republican President who is opposed to the minimum wage.  The Executive branch is tasked with enforcing that law, so wold the folks defending the President's methods also argue hat the government can issue permits to 5 million businesses allowing them to  ignore labor law?  Or emissions standards?  Or insider trading laws?

People are just being blinded by what they rightly see as a positive goal (helping millions of people) if they fail to see that the President issuing licenses to not be prosecuted for certain crimes is a huge new precedent.  Proprietorial discretion is supposed to be used to avoid patent unfairness in certain cases (e.g. the situation in Colorado with conflicting state and Federal laws on marijuana).  It is not meant to be a veto power for the President over any law on the books.  But I can tell you one thing -- it is going to be seen by future Presidents as just this.  Presidents and parties change, and for those of you swearing this is a totally legal, normal, fully-precedented action, be aware that the next time 5 million wavers are issued, it may well be for a law you DO want enforced.  Then what?

Update:  Libertarians are making the case that the Constitution never gave Congress the power to restrict immigration.  I could not agree more.  However, I fear that will have zero impact on the precedent that will be inferred from all this.  Because what matters is how the political community as a whole interprets a precedent, and I think that this will be interpreted as "the president may issue mass waivers from any law he does not like."  Now, since I dislike a hell of a lot of the laws on the books, perhaps over time I will like this precedent.  But the way things work is that expansive new executive powers seldom work in favor of liberty in the long run, so I am skeptical.

You would have to be a Coyote Blog old-timer to remember back in January of 2007 when I asked

Is there any state where a college men's football or basketball coach is not the highest paid state official?

Robert Fischer-Baum, via Ilya Somin, has the answer.  In forty states, the highest paid state employee is a university football or basketball coach.  In all fifty states, the highest paid public employee works for a state university.   Which brings us back to my post earlier today.   Government student loans are to university payrolls as quantitative easing is to stock prices.

Gary Becker via Ilya Somin:

The toughest competition for basketball and football players occurs at the Division I level. These sports have both large attendances at games-sometimes, more than 100,000 persons attend college football games– and widespread television coverage.... Absent the rules enforced by the NCAA, the competition for players would stiffen, especially for the big stars...

To avoid that outcome, the NCAA sharply limits the number of athletic scholarships, and even more importantly, limits the size of the scholarships that schools can offer the best players....

It is impossible for an outsider to look at these rules without concluding that their main aim is to make the NCAA an effective cartel that severely constrains competition among schools for players. The NCAA defends these rules by claiming that their main purpose is to prevent exploitation of student-athletes, to provide a more equitable system of recruitment that enables many colleges to maintain football and basketball programs and actively search for athletes, and to insure that the athletes become students as well as athletes.

Unfortunately for the NCAA, the facts are blatantly inconsistent with these defenses....

I expressed many of the same thoughts in this article at Forbes.  In addition to making the same points as Becker, I slammed on the whole concept of the "amateur athlete" as an outdated holdover from the British aristocracy and their disdain for commerce:

University presidents with lucrative athletic programs will do about anything to distract attention from just how much money their Universities are making off of essentially unpaid labor.  Their favorite mantra is to claim they are holding up an ideal of “amateurism.”

The whole amateur ideal is just a tired holdover from the British aristocracy, the blue-blooded notion that a true “gentleman” did not actually work for a living but sponged off the locals while perfecting his golf or polo game.  These ideas permeated British universities like Oxford and Cambridge, which in turn served as the model for many US colleges.  Even the Olympics, though,  finally gave up the stupid distinction of amateur status years ago, allowing the best athletes to compete whether or not someone has ever paid them for anything.

In fact, were we to try to impose this same notion of “amateurism” in any other part of society, or even any other corner of university life, it would be considered absurd.  Do we make an amateur distinction with engineers?  Economists?  Poets?

When Brooke Shields was at Princeton, she still was able to perform in the “amateur” school shows despite the fact she had already been paid as an actress.   Engineering students are still allowed to study engineering at a university even if a private party pays them for their labor over the summer.  Students don’t get kicked out of the school glee club just because they make money at night singing in a bar.  The student council president isn’t going to be suspended by her school if she makes money over the summer at a policy think tank.

In fact, of all the activities on campus, the only one a student cannot pursue while simultaneously getting paid is athletics.  I am sure that it is just coincidence that athletics happens to be, by orders of magnitude, far more lucrative to universities than all the other student activities combined.

Ilya Shapiro:

Well of course they aren't "” but that's constitutionally irrelevant:  Corporations aren't "real people" in the sense that the Constitution's protection of sexual privacy or prohibition on slavery make no sense in this context, but that doesn't mean that corporate entities also lack, say, Fourth Amendment rights.  Or would the "no rights for corporations" crowd be okay with the police storming their employers' offices and carting off their (employer-owned) computers for no particular reason? "” or to chill criticism of some government policy.

Or how about Fifth Amendment rights?  Can the mayor of New York exercise eminent domain over Rockefeller Center by fiat and without compensation if he decides he'd like to move his office there?

So corporations have to have some constitutional rights or nobody would form them in the first place.  The reason they have these rights isn't because they're "legal" persons, however "” though much of the doctrine builds on that technical point "” but instead because corporations are merely one of the ways in which rights-bearing individuals associate to better engage in a whole host of constitutionally protected activity.

That is, the Constitution protects these groups of rights-bearing individuals. The proposition that only human beings, standing alone, with no group affiliation whatsoever, are entitled to First Amendment protection "” that "real people" lose some of their rights when they join together in groups of two or ten or fifty or 100,000 "” is legally baseless and has no grounding in the Constitution. George Mason law professor Ilya Somin, also a Cato adjunct scholar, discusses this point here.

One aspect of the recent debate about the Supreme Court's Citizen's United decision that really irritates me is the notion, propounded by the NY Times among others, that corporations and the individuals assembled in them do not have free speech rights because corporations are "state-created entities."

This is wildly untrue, or alternatively, if you accept the logic, then nearly every aspect of our lives is state-created.  Take your pick.  Basically, the argument is that because the government has set the rules for corporate incorporation, and that these incorporations require state approval, that makes corporate entities "state-created."  But corporations are nothing more than a structure by which people can assemble and aggregate their capital and share ownership of an enterprise that employs that capital.  If government incorporation law did not exist, individuals still would have the incentive to assemble in some sort of entity.

I don't know of anything in the corporate structure that could not be duplicated with contract terms.  People point to the liability limitation as some sort of government gift to the corporate world, but that could easily be written in to every contract of, say, a partnership  (certain torts are an exception I would have to think about).  Vendors might choose not to accept such contracts, preferring to be able to pierce the partnership to go after individual owners to settle debts, but that choice exists today.  I have many, many vendor contracts in my corporation, and nearly all of my bank loans, that require the personal guarantee of all the owners, effectively waiving the liability limitation for those transactions.

My point, though, is that corporate forms have evolved as they are because that is what the sum of investors and business people were working towards on their own, and government merely enshrined these forms into law.  In fact, this basic rules-setting of the contracts playing field is one of the few arguably useful things government has done.  If we allow government rules-setting over certain activities to be the test of whether it can further restrict our Constitutional rights, then nearly every aspect of our lives would be subject to such restrictions.

At its heart, this is the classic "heads I win, tails you lose" argument of statists.  They claim that individuals must petition the state to register their corporation and license their business, and then use the fact of these required registrations to argue that the business is a "state-created entity" and that individuals give up their ability to exercise their rights when assembled into these entities.  By the same logic, the fact that every commercial transaction is subject to license and taxation by the state would make our every transaction a "government-created exchange."  Think I am exaggerating?  Just look at this from our Arizona state web site:

The Arizona transaction privilege tax is commonly referred to as a sales tax; however, the tax is on the privilege of doing business in Arizona and is not a true sales tax. Although the transaction privilege tax is usually passed on to the consumer, it is actually a tax on the vendor.

Rights, like the ability of free exchange between individuals, supposedly can't be revoked, but privileges can.   Thus the name.   For folks who treasure individual liberty, we have already lost the battle when we allow the state this kind of language.

Anyway, I feel like I am having a failure of eloquence over this issue.  Ilya Somin got me started thinking about these issues, so I will turn it over to him here.

Third, it's important to consider what is meant by "state-created entity." If the term refers only to institutions that literally would not exist absent state authorization, it does not accurately characterize many, perhaps most corporations. If the federal government passed a statute abolishing corporate status tomorrow, most actual corporations would still exist and still continue to engage in the same business or nonprofit activities. They just would do so under different and perhaps less efficient legal rules (maybe as LLCs, partnerships, or sole proprietorships). But they wouldn't all just collapse or go away. There would still be a demand for most of the products produced by corporations.

If "state-created entity" doesn't refer to the mere existence of organizations currently defined as corporations but to the particular bundle of legal rights currently attached to the corporate form, then it turns out that virtually all other organizations are state-created entities as well. Universities, schools, charities, churches, political parties, partnerships, sole proprietorships, and many other private organizations all have official definitions under state and federal law. And all have special government-created privileges and obligations that don't apply to other types of organizations.

Even individual citizens might be considered "state-created" entities under this logic. After all, the status of "citizen" is a government-created legal entitlement that carries various rights and privileges, many of which the government could alter by legislation, just as it can with those of corporations (e.g. "” the right to receive Social Security benefits, which the Supreme Court has ruled can be altered by legislation any time Congress wants). In that sense, "citizens" are no less "state-created" entities than corporations are.

By the way, in case I was not careful with my language, I offer the same proviso as does Somin:

I should clarify that in this post, as before, I'm not arguing that corporations themselves are "persons" with constitutional rights. Rather, I'm asserting that their owners and employees are such persons and that that status enables them to use corporations to exercise their constitutional rights. Similarly, partnerships, universities, schools, and sole proprietorships aren't people either. But people can use them to exercise their constitutional rights, and the government can't forbid it on the sole ground that they are using assets assets assigned to "state-created entities." This distinction was unfortunately obscured in the current post by my shorthand references to "corporations'" rights. I only used that terminology because it's cumbersome to always write something like "people exercising their constitutional rights through corporations."

Steve Chapman via Ilya Somin:

Watching Washington policymakers in action, I sometimes think they make mistakes because of unrealistic goals, flawed thinking, blind obedience to party, or dubious information. And sometimes I think they make mistakes because they are"”how to put this?"”clinically insane.

There is no other way to explain what is going on at the Federal Housing Administration, which provides federal guarantees for home mortgages. Given the collapse in real estate prices, the weak economy, and the epidemic of foreclosures, banks are acting with more caution than before. They now commonly require home buyers to make down payments of 20 percent to qualify for a loan. But the FHA often requires only 3.5 percent.

That's the equivalent of playing pool with a guy named Snake, and it's had two predictable effects. The first is that the agency is insuring about four times as many home loans as it did just three years ago. The other is that the number of FHA-approved borrowers who are not repaying their loans is climbing. Since last year, the default rate has jumped by 76 percent.

Another likely consequence looms: you and I eating the losses. A former executive of mortgage giant Fannie Mae told a congressional subcommittee that the FHA "appears destined for a taxpayer bailout in the next 24 to 36 months." Commissioner David Stevens had to assure the subcommittee that it would not need help"”well, unless there is a "catastrophic home price decline." But who says there won't be? It's not as though anyone at the FHA foresaw the housing bubble or the housing bust. Yet now it feels confident betting its $30 billion cash reserve that prices won't fall.

Somin comments:

Unlike Chapman, I don't think the policymakers are "insane." They are responding rationally to perverse incentives. If another mortgage crisis occurs, they hope to shift the blame to a supposedly insufficiently regulated private sector "“ which is more or less how many of them managed to escape blame the last time around. The public did punish the Republican Party in the 2008 presidential election. But most of the members of Congress and federal bureaucrats who supported the GSEs got off scott-free. Moreover, the full negative effects of risky government-backed lending may not become evident for years to come "“ perhaps at a time when some other administration and Congress will be in office. In the meantime, the administration, the FHA, and key members of Congress can reap the political benefits of getting support from grateful borrowers, real estate developers, and other interest groups that benefit from easy credit.

Ilya Somin wonders why some top universities don't have law schools:

It recently occurred to me that there are several big-name
universities that don't have law schools, even though a law school
established at any of those institutions would probably do well.
Princeton arguably heads this list, along with Brown, Johns Hopkins,
Rice, and Tufts. Brandeis University also doesn't have a law school
(ironically, for a prominent university named after a Supreme Court
justice).

Why these universities haven't established law schools is a bit of a
mystery (at least to me). Law schools tend to bring in net revenue for
the university. This is even more likely to be true at a big-name
institution that can quickly attract good faculty and students. If
Princeton were to establish a law school tommorrow, appoint a credible
dean, and provide adequate initial financial backing, they could very
quickly turn it into a highly successful (and profitable) enterprise.
Many good students would come just because of the Princeton name, and
most outstanding scholars who are not already at top 20 or top 30
institutions might well be willing to move to Princeton if asked.

Princeton, by the way, does not have a law school or business school or medical school.  It really tries to hold itself up as primarily and undergraduate institution, and works hard to be the premier undergraduate school in the country.  It has graduate schools only in disciplines for which there is an undergraduate degree (e.g. math, economics, chemistry, history).  I have always suspected that they maintain these graduate programs mainly because they have to to attract top academic talent to be available for their undergraduates.  Unlike any other university with which I am familiar, and certainly unlike Harvard where I also attended, graduate students at Princeton feel themselves to be second class citizens.

Somin acknowledges this a bit when he says:

Various commenters suggest that these universities choose not to
have a law school because of their desire to focus on undergraduate
education. That may indeed be the right explanation, though several of
these institutions (including Johns Hopkins, Tufts, and Rice) have
other professional schools on campus. But it doesn't strike me as a
very compelling reason not to establish a law school. If the law school
were to drain resources away form undergrad education, there might
indeed be a conflict between the two. In fact, however, a law school is
likely to bring in net revenue that could be used to improve
undergraduate education. Moreover, some law school professors
(especially at elite schools) teach courses that undergraduates might
be interested in taking, as sometimes happened at Yale, when I was a
law student there.

Even if a law school adds resources to undergrad education instead
of draining them, it's possible that its presence could detract from
undergraduate education in some other, more subtle way. But it's hard
for me to see how. If Yale Law School were closed down tomorrow, would
undergraduate education at Yale improve? Are undergraduates at Yale
currently worse off than at Princeton in some way traceable to the fact
that Yale has a law school and Princeton doesn't? Possibly. But I
remain skeptical.

I would argue that there is an important difference that you can't just get at through incremental analysis.  That is, that the management and faculty of Princeton have a culture and focus on undergraduates that universities like Harvard do not have.  Somin is right that grad schools bring in lots of money -- and so the sum of a med school and a law school and a business school and all that tuition and grant and consulting money (not to mention resultant faculty egos) is hugely distracting for an institution.  Particularly in the case of Princeton where it does not really need incremental money anyway.  Take my word for it, having attended both Harvard and Princeton, there are enormous differences in their institutional foci which have real impacts, both substantial and subtle, on undergraduate life. 

I would love to do a poll.  Ask the faculty of both Harvard and Princeton, "Which would you give up first, your university's graduate program or undergraduate program,"  I bet I know what the answer would be.

But what do I know - we Princeton grads are all nuts, anyway.

I am a little late on this, but Ilya Somin has a nice post on Joel Waldfogel's book on capitalism and serving niche markets. 

University of Pennsylvania business Professor Joel Waldfogel argues that markets give us too few choices because
they often fail to provide products that satisfy minority preferences.
This is the opposite of Barry Schwartz's argument that markets are bad
because they give people too many choices, which I criticized here.
In one sense, Waldfogel's point is irrefutable: due to high startup
costs or fixed costs and just to the general scarcity of resources in
the world, there are some minority preferences that the market won't
satisfy. The market is undoubtedly inferior to a hypothetical world in
which all preferences, no matter how unusual, could be satisfied at
zero cost. Not even the most hard-core of libertarian thinkers denies
this. That, however, says little about the question of whether
government could satisfy such minority preferences better, or whether
it is even a good thing to provide products whose costs are greater
than their benefits.

He makes a number of good points, including the one that first comes to my mind -- that in most cases, it is the government that tends to limit choice.

the relative lack of diversity of programming on radio stations - one
of Waldfogel's principle examples of the inability of the market to
satisfy minority interests - is actually a failure of government
regulation. As Jesse Walker documents in this book,
the FCC has for decades colluded with big broadcasters in suppressing
alternative and "microradio" broadcasters, thereby greatly reducing the
number of stations and making it very difficult to run a station that
caters primarily to the interests of a small minority. Even a
completely free broadcasting market would not satisfy all potential
listeners. But it would have a great deal more diversity than is
currently permitted by the FCC.

I called for the end of broadcast licensing here.  By the way, the author also ignores Sirius and XM, which have some incredibly niche offerings, and which happen to be in the least regulated part of broadcasting.  Why Sirius would have more niche choices than Clear Channel is explained here.

I could add many other examples onto this.  The FCC's regulation of the cell phone market creates the stupid environment we have today, arguing about locked iPhones.  In a previous post, I demonstrated how new government "a la carte pricing' regulation will lead to more homogenization and less focus on niche viewing audiences in the cable TV industry:

I can add a million examples.  Hair braiders are stepped on by the government in collusion with licensed beauticians.  Taxi companies get the government to quash low-cost or innovative shuttle transportation.  Discount casket companies are banned by government in collusion with undertakers.  Take dentistry.  Why do I need to go to an expensive dentist when 99% of my dental needs could be served by a hygienist alone?  Because the government colludes with dentists to make it so.  And don't even get me started on medicine.  My guess is a huge percentage of the conditions people come into emergency rooms with are treatable by someone without a 4 year medical degree and 6 years of internship.  Does one really need a full medical education to stitch up a kids cut knee?  Well, yes, you do today, because doctors collude with the government to make it so.  Why can't people specialize, with less than 10 years of education, on just, say, setting bones and closing cuts?  Why can't someone specialize in simple wills or divorces without a full law degree?

Every business where the government has licensing is an industry where the government is limiting consumer choice.  It is limiting the number of competitors, and it is specifying a narrow subset of ways in which a company can compete, eliminating service or product innovation.  In Colorado, my employees needs a license to take our customers fishing on a lake.  In Phoenix, you need a license to paint street numbers on a curb.  In Scottsdale you need a license to work out of your own home, a license to valet park cars, and a license to give massages.  And, of course, there are our tremendously dated liquor licensing laws.

Per Milton Friedman:

The justification offered is always the same: to protect the consumer. However, the reason
is demonstrated by observing who lobbies at the state legislature for
the imposition or strengthening of licensure. The lobbyists are
invariably representatives of the occupation in question rather than of
the customers. True enough, plumbers presumably know better than anyone
else what their customers need to be protected against. However, it is
hard to regard altruistic concern for their customers as the primary
motive behind their determined efforts to get legal power to decide who
may be a plumber.

Update:  Just for fun, I sat here and came up with 10 business ideas that would provide better service for customers, would reduce costs in notoriously high cost industries (e.g. medicine, dentistry, law) and which would make me a pile of money. which are all illegal due to licensing requirements that are set in collusion with current industry incumbents.

Frequent readers of this blog will know that this quote from Milton Friedman on licensing is one of my favorites:

The justification offered is always the same: to protect the consumer. However, the reason
is demonstrated by observing who lobbies at the state legislature for
the imposition or strengthening of licensure. The lobbyists are
invariably representatives of the occupation in question rather than of
the customers. True enough, plumbers presumably know better than anyone
else what their customers need to be protected against. However, it is
hard to regard altruistic concern for their customers as the primary
motive behind their determined efforts to get legal power to decide who
may be a plumber.

Ilya Somin at Volokh has an interesting post (though right this moment their site seems to be down) about the American Bar Associations (ABA) role in accrediting colleges.

To my mind, the problem goes beyond the shortcomings of specific ABA standards.
The real mistake is allowing an organization with a blatant conflict of interest
to take over the accreditation role in the first place. As an interest group
representing lawyers, the ABA has an obvious stake in limiting entry into the
profession so as to decrease the competition faced by its members. One way of
doing so is by restricting the number of accredited law schools, at least in the
vast majority of states that require all or most aspiring lawyers to attend an
ABA-accredited school in order to take the bar exam.  We would not allow an
organization run by Chrysler, GM, and Ford to set regulatory standards
determining who has the right to sell cars in the United States. Requiring ABA
accreditation for law schools is the exact equivalent in our industry....

To be completely clear, I am NOT arguing that the ABA should be prevented from
certifying schools as meeting what it considers to be appropriate standards. I
am merely suggesting that ABA accreditation should not be required by law as a
prerequisite for allowing a school's graduates to take the bar. If ABA
accreditation really is a sign of school quality, then applicants can take that
into account in making their decisions on what school to attend, just as they
currently consider US News rankings and other data. If some form of legally
mandated accreditation is needed (and I highly doubt that it is), the system
should be run by an independent agency insulated as much as possible from
control by the ABA and other interest groups representing practicing lawyers.
There should be similar insulation, by the way, from influence by established
law schools, since we too have an obvious self-interest in limiting competition
by preventing new entry into the legal education market.