Posts tagged ‘supreme court’

As I Predicted 15 Years Ago, Indefinite Detentions at Gitmo Continue in the War that Never Ends

Sigh -- here is your update:  Human beings are still being detained by the US government in Guantanamo without any due process.  I was writing about this 15 years ago, but with the loss of some of my early content the earliest I can find is this from 2006.  The problem always was our using US POW rules from past wars in this very different war.  In the past, wars actually ran for what now seems like a limited time (though folks living through WWII would be surprised at that perspective).  POW's for most part were captured in uniform and on a battlefield (or floating in the water after their ship sank).  Nobody really had due process concerns as a) being in a German uniform in a Normandy pillbox on June 7 was pretty persuasive evidence one was an enemy combatant; b) the detained combatant was likely headed to Arkansas to harvest crops for a year or two, which was a FAR better place to be than where they were captured; c) when the war unambiguously ended, they went home.

But in our current AUMF and the "war on terror," where does it end?   There are no uniforms.  The battlefield as defined is the entire world.  The power to detain human beings for the duration of the war allows the Administration to detain roughly anyone they way, without having to defend that decision, and keep them however long they want because only the Administration (or perhaps Congress if it had a spine) decides when the "war" is over.

I had hoped that the Supreme Court would take the opportunity to review this practice after so many years had passed.  I think there were real reasons to ban this practice in 2004 when the Court reviewed this the first time, but at that time the war was relatively fresh and the detentions still shorter than other wartime POW internments.  But what about now?  Unfortunately, the Court declined to rethink their earlier position, despite hints in the original decision that matters might change if the "war" dragged on.

Today the Supreme Court declined an opportunity to examine whether it's still acceptable to hold enemy combatants in Guantanamo Bay at a time when Washington's interventions in Afghanistan and Iraq no longer resemble anything the U.S. was doing in the direct wake of 9/11.

Moath Hamza Ahmed al-Alwi, a Yemeni citizen, has been imprisoned in Guantanamo Bay since January 2002, when he was captured in Pakistan fleeing Afghanistan. He was initially accused of being a veteran terrorist combatant and a former Osama bin Laden bodyguard. Much later, in 2015, officials concluded he was most likely not a former bodyguard; while he was affiliated with Al Qaeda and the Taliban, it's unclear whether he was engaged in any sort of combat against the United States. He's one of 40 prisoners still detained there.

He's been sitting in Guantanamo Bay for 17 years, but the U.S. government has not charged him with any crimes. It doesn't appear to intend to charge him with anything, but it also refuses to release him, because the Authorization for Use of Military Force (AUMF) to wage war in Afghanistan and against the Taliban and al Qaeda remains in force.

In 2004's Hamdi v. Rumsfeld decision, the Supreme Court ruled that the AUMF authorized such detentions with an understanding that this authorization ended at the conclusion of the war. But even in 2004, the majority was cognizant of the possibility that this amorphous "war on terror" was likely to change over time. In the ruling, written by then-Justice Sandra Day O'Connor, it notes: "If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel. But that is not the situation we face as of this date."

I find Conservative support for these detentions frustrating in light of recent events.  People across the political spectrum, but particularly Conservatives, were outraged that Harvard would terminate a dean merely because as a lawyer he chose to represent an unpopular client (Harvey Weinstein).  They rightly argued that due process demands representation of every client, and that to make that work an attorney's moral standing can't be conflated with that of his clients.  Or put another way, what a defendant allegedly did or did not do is irrelevant to  what we owe them for due process.  I think the same can be said of the folks left to die in Guantanamo.

But Coyote, they aren't American citizens!  We don't owe them due process.  Wrong.  We do.  Read the first words of the Declaration of Independence.  Rights belong to all human beings -- they are not grudgingly granted by the Constitution to US Citizens only.  There is nothing in what I call the extended Bill of Rights (including 13-15) that does not apply to everyone who walks the Earth and interacts with the US Government.  Otherwise, as an extreme example, grabbing Africans and enslaving them would still be Constitutional.

But Coyote, no one wants these guys.  Well, that is a different point and is NOT the current legal underpinning of their detention.  I do understand it is politically impossible, and perhaps even unethical, to drop these folks in the US.  If we free them all and no one will take them, then they may stay as our guests to try to live some kind of life at Guantanamo.  But that is not the status they have today.

But Coyote, one of these guys may kill again.  In general, the argument in favor of confining or keeping at a distance any group that probably contains future criminals is bankrupt.  The argument exploded in popularity on the Right a while back with the whole Skittles meme.  The meme said something like if you had a thousand Skittles and new one was poisoned, would you eat from the bag?  And if not, why would you let in immigrant populations that likely include some future criminals.  The problem with this is that if this argument really had moral weight, we would be equally required to ban sex or at least all births since some percentage of babies born will be criminals.  At a higher level, our whole legal system is based on the presumption that it is better to err on the side of not punishing an actual criminal than on the side of punishing the innocent (which we still do a lot of nevertheless).  This presumption of innocence is one of the key markers that separate us from totalitarian governments.

Congress Needs to Act on Internet Sales Taxes

Yes, I know, the "Congress needs to act" subject line is an unusual one for this blog.  But great damage is being done on the tax front to businesses and only Congress can mitigate some of the harm.

The taxes in question are sales taxes, and the problem results from a Supreme Court decision that allows states to start collecting sales taxes on interstate internet sales.  Eric Boehm of Reason writes:

Heitman and his wife, Carla, have been running Pegasus Auto Racing Supplies since they founded the company back in 1980, out of a two-story building in New Berlin, Wisconsin. Until last year, that meant Heitman was responsible for collecting and paying sales taxes to exactly one place: the Wisconsin Department of Revenue. But thanks to an under-the-radar ruling from the U.S. Supreme Court in June, he's now receiving letters, phone calls, and emails from revenue officials across the country, each wanting a piece of his business

The source of Heitman's frustrations is Wayfair v. South Dakota,which allowed states to collect sales taxes from online businesses located beyond their borders. Many states view the Wayfair ruling as a potential tax revenue windfall in which the taxes are paid by non-residents who can't vote against them. That's why businesses like Heitman's are now facing the chilling prospect of owing taxes in dozens, and possibly hundreds, of different jurisdictions—while being hounded by out-of-state tax collectors.

Since the Supreme Court issued its ruling in June, Heitman has been scrambling to become compliant with tax commissions and revenue departments from coast to coast. He's spent thousands of dollars on new software to help navigate the complexities of state sales tax law, but that's only been so much help. "It almost seems like I have another full time job dumped on me with this sales tax thing," he says. "It's burning me out."

Like most writes, Mr. Boehm actually understates the problem.  Because the potential exists not to have 50 new taxing authorities for every sales, but thousands.  I have to deal with this every day. I wrote a while back:

Take Arizona, which seems from my experience to be roughly average.  The sales tax rate table is 18 pages long in a small font.  There are 29 separate rate categories which each have different rates in each of Arizona's 15 counties.    My business is in 6 counties and we have 3 rate categories that apply, or 4 if you consider items with no tax as another rate category.  This is 24 different state/county sales tax rates we charge.  But that is the easy part.  Because then there are, in addition to county taxes, 92 different towns and cities that have their own rate tables with up to 29 different rate categories that add to the base state/county rate.  Other states such as Washington (rule of thumb -- if the state has no income tax then it has a LABYRINTHIAN sales and business tax systems) have additional overlay taxes such as for transit and stadium districts.

When my company opens a new location, we have to spend hours on the Internet and with maps trying to figure out what sales taxes to collect, and even with good due diligence we sometimes get it wrong and find in an audit we are actually just inside or outside some line where the rate changes (we once had a location 30 miles outside of Seattle on a long dirt road where we found we had to collect the Seattle Rapid Transit tax).  Thatcher, AZ is a town of like 4000 people but has its own special sales tax rates -- do you know where the town line is?  Well neither do they, because last time I checked they did not have any sort of online lookup system to tell one automatically if the address is inside or outside the town and its sales tax district....

But even after registering in all 50 states, you are STILL not done, because many states don't have a fully unified sales tax collection system.  In Arizona, for example, the larger cities require their own registration and monthly reporting.  Each of these towns in AZ require a separate registration and monthly report:

Apache Junction, Avondale, Chandler, Douglas, Flagstaff, Glendale, Mesa, Nogales, Peoria, Phoenix, Prescott,Scottsdale, Sedona, Tempe, Tucson

Douglas, Arizona is a town of freaking 16,000 people but make sales there and you have to have a separate local registration and reporting.  And this list is for one not-very-urban state.  Currently my company does business in 9 states but we are registered and pay sales taxes to about 25 different authorities -- and we are mostly a rural business, so we are not in the larger urban areas that are more likely to have their own sales tax systems.

Apparently Congress is considering legislation to pre-empt this tax burden for all but the largest (read: Amazon) retailers

One potential vehicle for resolving problems created by Wayfair is a bill sponsored by Rep. Jim Sensenbrenner (R-Wisc.), first introduced in October and likely to be re-introduced to the new session of Congress within the coming weeks. His bill, the Online Sales Simplicity and Small Business Relief Act, would add important specifics like prohibiting states from collecting out-of-state sales taxes on transactions that occurred before January 1, 2019, essentially giving businesses much-needed time to get up to speed on the new requirements without suddenly being hit with tax bills they weren't expecting.

Most important of all, the bill would create a $10 million sales tax exemption for all small businesses that do not have a physical presence in a given state. That means upping the $100,000 threshold in the South Dakota law that triggered the Wayfaircase to a level far in excess of what a small business would have in sales—effectively removing the ability of states to target all but the largest of remote sellers.

"Small business owners, in particular, have shared fears that they will be unable to bear the new compliance burdens and may have to shutter their businesses," Sensenbrenner says. "I've heard from online sellers in Wisconsin and across the country who are concerned with the complexity of the post-Wayfair tax regime."

The bill is likely to have bipartisan support in the House this year, with Reps. Anna Eshoo (D-Calif.) and Zoe Lofgren (D-Calif.) lined up as co-sponsors, along with Rep. Jeff Duncan (R-S.C.).

This is actually good news if this law has support.  I actually thought that there would be no solution short of a federal sales tax on interstate sales that pre-empts the state rates, and whose proceeds would get shared with the states on some kind of pro rata basis.  I didn't think politicians would walk away from money, and I still think that if the Sensenbrenner bill is to pass it needs to do it this year before states get used to the new money and refuse to part with it.

 

Wow, I Thought Our State Government Was Messed Up

Via Overlawyered, check out this story unfolding in West Virginia:

Last year’s attempt by the West Virginia legislature to impeach and remove from office several members of the state’s supreme court effectively ended when the state supreme court ruled the impeachment proceedings were unconstitutional. (State ex. rel. Workman v. Carmichael) Now members of the legislature have moved to withhold judicial retirement benefits unless that decision is overturned.

Hat tip to WV Clean Elections for the news article

Under SB 398 as amended yesterday by the House Judiciary committee, the payments for retirement benefits would cease unless Workman v. Carmichael is overturned.

 

The 5 Worst Supreme Court Rulings of the Past 50 Years

I am not an expert, but each and every one of these seem pretty bad.

For example:

1. Smith v. Maryland (1979)

The Fourth Amendment guarantees "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." But according to the Supreme Court's 1979 decision in Smith v. Maryland, "a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties."

Lawyers call this the third-party doctrine. Prosecutors and police call it the gift that keeps on giving. Let's say the cops want to know what websites you've been reading. The third party doctrine lets them get that information from your internet service provider without obtaining a search warrant first. So much for that pesky Fourth Amendment and the privacy rights it was designed to protect.

The Democrats' Complaints About the Senate Being Undemocratic Are Pure Whining and Excuse-Making: Here's Why

The Democrats' issue du jour seems to be that the Senate is undemocratic and needs to be abolished.  The argument is that it is not fair that states get two seats each in the Senate regardless of their population, so that the tiny population of Wyoming has the same number of Senate votes as the huge population of California.  These concerns are related to Democrats' frustration with the electoral college, whose votes do not strictly match population because each state gets delegates equal to their number of representatives plus their number of Senators. These are small state protections that evolved as part of a compromise between the 13 states in the original Republic.  A few thoughts on this:

  1. This is an oddly-new concern from Democrats.  They controlled as many as 60 Senate seats as recently as a decade ago.
  2. The non-democratic nature of the Senate is in its very DNA.  Until the late 19th century Senators were not even elected by popular vote, but by a selection process in the state legislature.
  3. For those who treat politics as the be-all-end-all of their lives, this provides an outstanding arbitrage opportunity -- move from California to Wyoming and immediately greatly increase the power of your vote.  I lived in Wyoming for a bit on a ranch south of Glenrock (30 minutes by dirt road from a town of 2000).  Hipsters are warned that they might find it difficult to locate a starbucks or good sushi there.
  4. I am not sure one would design a Senate today the way it was designed 200+ years ago.  But, it has mostly worked.  I am not a Burkean Conservative, but I do think that there needs to be a little more reason than a lost Presidential election and one loss on a Supreme Court confirmation to modify a system that has worked for a long time.
  5. It would be an interesting discussion as to whether the structure of the Senate were positive or negative in the runup to the Civil War.  The obvious answer is that it was bad, in that it forced odious compromises with slavery since the South controlled half the Senate despite its much lower population.  On the flip side, though, one might argue that things could have even been worse had the North not been forced to engage the South for so long to make any legislative progress.  What if the South had left the union 20 years earlier, would the North have had the strength or will to defeat them in 1840?

But here is the real reason that the allocation method of Senators (and Electoral College delegates) is absolutely NOT going to change so that this whole discussion is pointless:  Changing these rules in any way requires a Constitutional amendment.  Such an amendment, to become law, must be ratified by 3/4 of the state legislatures or 38 as things stand now.  But at least half (and probably a bit more since a few states are so damn big) of states will see their power decrease under such rule changes.  Is Wyoming going to vote yes?  Montana?  I am pretty sure there are at least 13 no votes on this.

So stop whining and deal with it Democrats -- you had a filibuster-proof majority in the Senate just over 10 years ago, win some elections and get it back.

Should Republicans Thank Michael Avenatti For Kavenaugh's Confirmation?

Ten days ago, I told my wife that if Brett Kavanaugh is confirmed, he can probably thank Michael Avenatti and his client.  Julie Swetnick's accusations of mass gang rapes held week after week after week were so batsh*t crazy -- and completely unconfirmed by any witnesses when the behavior she described was so public and affected so many people that confirmation should have been easy -- that the Democrats' argument that women never lie and always should be believed was shown to be false to all reasonable observers.  It became too easy for Republicans to convince themselves that all of the women accusing Kavanaugh, not just Swetnick and the other last-minute copycats, were a put-up job by Democrats (a conclusion that was more easy to reach given DiFi's hamfisted attempt to be "tricky" and withhold the Ford accusations to the last minute).  In a well-reasoned world, the veracity of the Swetnick accusations should have had no bearing on the evaluation of Ford's believably, but in the real world of politics it had a huge effect.

I honestly believe that an earlier reveal of the Ford accusations early in the process, without all the nutty copycat allegations, could easily have resulted in Kavanaugh being withdrawn. First, it would have allowed Republicans and Kavanaugh himself to escape early in the process before so many chips were on the table.  Further, if we take Collins's speech at face value, her yes vote really resulted from the Swetnick accusations and I think she might easily have voted the other way with a different process.

A lot of people have come around to this point of view.  One is Robby Soave of Reason:

Democrats, the left, and various other anti-Kavanaugh persons can thank attorney Michael Avenatti for this outcome, at least in part.

The spotlight-stealing lawyer, who also represented Stormy Daniels, is responsible for drawing the media's attention to Julie Swetnick, an alleged victim of Kavanaugh who told an inconsistent and unpersuasive story. Swetnick's wild accusation provided cover for fence-sitting senators to overlook the more plausible allegation leveled by psychology professor Christine Blasey Ford, and to declare that Kavanaugh was being subjected to false smears.

Update:  Michael Avenatti has responded to such criticism on Twitter by saying, essentially, "what was I supposed to do, just ignore the needs of my client?"  No.  What he should have done is honestly thought about the needs of his client rather than just his need for self-promotion ahead of the Democratic primaries.  It is very much a part of a lawyer's job to confirm his client's story and evaluate whether he thinks they have a good case, and then to counsel them on whether or not it makes sense for them given the cost in dollars and public harassment to try to bring the case.  I have had a batsh*t crazy woman who was an ex-employee (who I have never met face to face) decide that I was doing all sorts of crazy things like running an Al Quaeda training camp, organizing a narcotics ring, and stalking her across every Indian casino in the state.  The poor woman has mental health issues and imagines all kinds of weird stuff, and I can be sympathetic now that she is no longer actively threatening me and I don't have to maintain protective orders against her.  At the time she took her crazed stories to any number of lawyers trying to mount a case against me on all kinds of odd bases, and you know what - no lawyer took the case, because pursuing this sort of madness in the legal system would not have done anyone, especially this woman, any good at all.

Hunting Through The Jungle to Eliminate the Last Surviving Soldier in the Culture War

Those of you as old as I am may remember in the 1970's when a few last surviving Japanese soldiers from WWII were discovered or coaxed to surrender after hiding for decades in some Pacific jungle.  No one was looking to punish these guys -- the war was won and over -- we were just trying to get them to come out and try to live a normal life.

I am reminded of these stories upon reading that Colorado is yet again going after the same baker for not baking someone a cake:

On the same day the high court agreed to review the Masterpiece case, an attorney named Autumn Scardina called Phillips’ shop and asked him to create a cake celebrating a sex transition. The caller asked that the cake include a blue exterior and a pink interior, a reflection of Scardina’s transgender identity. Phillips declined to create the cake, given his religious conviction that sex is immutable, while offering to sell the caller other pre-made baked goods.

In the months that followed, the bakery received requests for cakes featuring marijuana use, sexually explicit messages, and Satanic symbols. One solicitation submitted by email asked the cake shop to create a three-tiered white cake depicting Satan licking a functional 9 inch dildo. Phillips believes Scardina made all these requests.

Scardina filed a complaint with the civil rights commission, alleging discrimination on the basis of gender identity. The matter was held in abeyance while the Supreme Court adjudicated the Masterpiece case.

I have supported gay rights for as long as I can remember and briefly ran an Arizona campaign to legalize gay marriage.  But this looks to me like sending an entire army into the jungle to try to hunt down and kill that last Japanese soldier.  Isn't it enough that we have complete legal tolerance of homosexuality, de facto tolerance by the majority of Americans, and commercial tolerance in that 99+% of all businesses gratefully accept business from gays?  There can't be that many businesses denying accommodation to gays and trans-gendered when they have to keep harping on the same one example of non-conformity.  One of the features Hannah Arendt used to distinguish totalitarianism from run-of-the-mill authoritarianism was that in the latter, authorities need everyone to act in accordance with their wishes, in totalitarian governments they require people to believe in accordance with their wishes.  This need to seek out and harshly punish tiny infractions against social justice strikes me as totalitarian.

As an aside, I would challenge anyone to say that there is no message they would refuse to put on a cake.  I can think of a number I would say no to, starting with this one.

Mandated accommodation laws are a tough thing.  Libertarians tend to be suspicious of them because they tend to tread on several first amendment rights (speech, association).  But I could envision cases where I would support them, for example in the 1960's South during the dismantling of Jim Crow.  I really do not think we are there for gay wedding cakes.

 

Ideological Turing Test Fail

Kevin Drum claims to want to really understand the Trump voter.  I will let you read it to see what you think, but here was my comment:

I am all for promoting understanding between our two great national tribes. But you ruin your attempt by whipping out a statement like this: "There are plenty of people who are simply beyond reach for liberals. They’re either racist or sexist or they love guns or maybe they’re just plain mean" Seriously? Back to the old "if you don't agree with me you must be racist?"

Further, you execute the classic tribal maneuver of choosing to take on one of the opposition's silliest niches, rather than their best. This is the equivalent of a Conservative making blanket statements about liberals and environmentalists based on a few of silly folks caught on video signing a petition to ban dihydrogen monoxide.

This does pretty much zero to promote understanding, and in fact is smug arrogance and virtue signalling masquerading as an attempt at understanding.

I think the high minimum wages in California are misguided and actually hurt the poor and unskilled, and I have written about why I think so. But you know what? I can sure as hell publish a one or two paragraph defense of minimum wages that you would never know was written by anyone but a hardcore progressive or Bernie Bro. As another example, I am pro-choice but I have really engaged with anti-abortion folks enough in social settings to infer that they really, truly think that abortion is killing human beings. We pro-choicers like to make ourselves feel better by saying that the anti-abortion folks are anti-women or religious fascists or something, because it is much easier to hate those folks. But it is much harder to hate someone who really, honestly thinks a baby is dying, even if we think they are misguided.

A lot of hate in this country would disappear if people really tried to understand their opponents in terms other than crude smears, like they are racist or sexist or fascist or snowflakes or whatever. So much so that if I were a professor, I think that every day in a class discussion at the halfway mark I would make everyone reverse positions and try to credibly argue the opposite side of the question. When I run my once a year high school economics class, I do exactly this. And I did that for years in high school debate. For a whole year, despite being an ardent free trader, in every other debate I had to argue in favor of protectionism. I think it was good for my soul.

I post this because there seems to always be a 50/50 chance that I will get banned after every comment on Mother Jones.  I never use profanity, and always try to be reasonable, but I am on my 3rd or 4th ID at Mother Jones because they keep banning me.  I still will always treasure the first time they banned me -- the comment that got me banned is below.  I am pretty sure they thought I was promoting the National Rifle Association in my comment, when in fact I was referring to the National Industrial Recovery Act and the NRA blue eagle of the New Deal.

The authors portray this (at least in the quoted material) as an anti-trust issue, but I suspect a bigger problem is the cronyist certificate of need process. In many locations, new hospitals, or hospital expansions (even things as small as buying a new cat scanner) require government permission in the form of a certificate of need. As one may imagine, entrenched incumbents are pretty good at managing this process to make sure they get no new competition. This, by the way, is a product of classic progressive thinking, which in its economic ignorance saw competition as duplicative and wasteful. We are lucky the Supreme Court shot down FDR's NRA or we would have this sort of mess in every industry.

The Sales Tax Problem for Small Businesses

I am, perhaps surprisingly to many readers, NOT going to go on a rant about the Supreme Court's decision yesterday that states can collect sales tax on interstate sales over the Internet, at least I am not going to rant about taxing internet sales per se.  Realistically, it was never realistic to think the government would keep its hands off this piggy bank, especially as Internet sales have skyrocketed.  However, this decision creates absolutely enormous practical problems for small businesses and Congress needs to act quickly to mitigate some of these.

The problem is the management problem this presents, particularly for many small retailers, and I don't think most consumers understand this.  Sales taxes seem simple from the consumer point of view -- say your sales tax rate is 7%, the cash register collects 7% and it all seems to be handled automatically.  But even at your local store, things can get complicated.  Your food purchases may well be taxed at a different rate (perhaps even 0%) than your other purchases.  You probably don't notice, but if you go over the city limits into a neighboring town or unincorporated area, the rates may suddenly be different.

Take Arizona, which seems from my experience to be roughly average.  The sales tax rate table is 18 pages long in a small font.  There are 29 separate rate categories which each have different rates in each of Arizona's 15 counties.    My business is in 6 counties and we have 3 rate categories that apply, or 4 if you consider items with no tax as another rate category.  This is 24 different state/county sales tax rates we charge.  But that is the easy part.  Because then there are, in addition to county taxes, 92 different towns and cities that have their own rate tables with up to 29 different rate categories that add to the base state/county rate.  Other states such as Washington (rule of thumb -- if the state has no income tax then it has a LABYRINTHIAN sales and business tax systems) have additional overlay taxes such as for transit and stadium districts.

When my company opens a new location, we have to spend hours on the Internet and with maps trying to figure out what sales taxes to collect, and even with good due diligence we sometimes get it wrong and find in an audit we are actually just inside or outside some line where the rate changes (we once had a location 30 miles outside of Seattle on a long dirt road where we found we had to collect the Seattle Rapid Transit tax).  Thatcher, AZ is a town of like 4000 people but has its own special sales tax rates -- do you know where the town line is?  Well neither do they, because last time I checked they did not have any sort of online lookup system to tell one automatically if the address is inside or outside the town and its sales tax district.

So it's a hassle for my business, but a one time hassle when we open a new location.  Now imagine that you are a small retailer on the internet selling fruit cakes.  You don't go out and establish sales tax locations, in some sense the location comes to you.  John Smith wants to buy a fruitcake and has an address that says Thatcher, AZ, but in the rural world one can easily have a town's name in your address but live outside of the town  (we have a campground with a Grant, Alabama address that is well outside of the city and tax limits of Grant but the town fathers come after us every year or so trying to see why we are not collecting their sales tax).  What sales tax do I collect from this customer?  Is there even a tax on food in that location?  If there is, there might be separate rates (as in California, for example) for prepared vs. packaged food.  What kind of food is my fruitcake?

But it actually gets even worse.  Because now all I have done is collect some amount of tax.  That is the easy part!  The hard part is registering with all the sales tax authorities to collect and pay the tax.  Well, you say, I guess I have to grit my teeth and register 50 times, which I can tell you is a gigantic pain in the ass because every state manages the process differently.

But even after registering in all 50 states, you are STILL not done, because many states don't have a fully unified sales tax collection system.  In Arizona, for example, the larger cities require their own registration and monthly reporting.  Each of these towns in AZ require a separate registration and monthly report:

Apache Junction,
Avondale,
Chandler,
Douglas,
Flagstaff,
Glendale,
Mesa,
Nogales,
Peoria,
Phoenix,
Prescott,
Scottsdale,
Sedona,
Tempe,
Tucson

Douglas, Arizona is a town of freaking 16,000 people but make sales there and you have to have a separate local registration and reporting.  And this list is for one not-very-urban state.  Currently my company does business in 9 states but we are registered and pay sales taxes to about 25 different authorities -- and we are mostly a rural business, so we are not in the larger urban areas that are more likely to have their own sales tax systems.

By the way, you might be thinking, "well, if I am a small business, I can just file with such and such authority in the months I have a sale there." Wrong.  Once you register and file once, you will be expected to file every time, even if they are zero reports.  The one source of relief is some states allow less frequent reporting.  It used to be there were states where I had low volume we filed once a year, but that seems to be a thing of the past.   Most states seem to have a minimum of quarterly reporting, no matter the volume.  Politicians want their money NOW (last sentence should be pronounced using Veruca Salt voice).

This is why businesses tend to have to sign up for very expensive sales tax management services.  But even that is not the end of difficulties, because registering for sales tax in an authority also forces one to register and pay other taxes and fees.  For example, Tennessee has another tax called the state and county business tax, which is essentially a revenue tax.  Even if you are an out of state company, you must file and pay this tax on any revenues.  If you sell in all of TN, that is one additional state registration and 95 different county registrations and 95 different county tax forms  (our company has to do about 8).  But wait, there is more!  Because a business also has to register with any of about 200+ cities in TN for payment of city business tax.  If you are selling all over TN, that is another 200+ registrations and 200+ annual reports (if this seems all very complex in TN, remember that TN has no income tax and note what I said earlier about the sales and business tax systems of states with no income tax).

I have written many times that regulation tends to benefit larger companies at the expense of smaller companies.  Who is more likely to be able to comply in this world I have described, Amazon or the fruitcake company?  Jeff Bezos is turning handsprings today because a) this kills a lot of his competition and b) to survive, many small venders will have to move to larger retailing platforms that can do some of the sales tax work, of which the largest and best is.... Amazon.

Congress needs to act.  It is going to have to be a compromise, because states are going to be putting a lot of pressure to let this situation stand because they want the money.  I would propose a national sales tax system on interstate retail sales that preempts any state sales taxes.  It will be hard to keep it from growing out of hand but it would be nice to establish a principal in law that the tax would be some sort of weighted average of the states' internal sales taxes.  The Feds would add a percent or two for themselves and there would be one registration for all -- as easy for me to do as it is for Bezos.  Yes, I know all the problems with this, but I don't think the status quo is tenable and I don't think Congress has the votes to go back to the old untaxed system, so this is the best we can expect.

Topology Question

Is there some sort of metric for the complexity of a boundary like this one for PA Distric 7, among those invalidated in PA (in a decision the Supreme Court today refused to review)?

I keep wondering whether there is an objective standard we can set, rather just the sort of "I know it when I see it" one that everyone seems to use.

One way I can imagine testing is to do it Monte Carlo style by drawing a series of lines from one random point in the shape to another random point in the shape and calculating which percentage of the lines cross the boundary at least once.  That metric for a circle or a rectangle would be zero, but would be very high for this shape.

 

One Argument for Old Age Is That I Won't Live Long Enough to See These Morons Do Their Full Measure of Damage

It it were just Evergreen College, which was always a sort of Antioch / Hampshire College nuthouse anyway, I could write it off.  But this is going on at Yale and Wesleyan and Amherst and Middlebury and the Claremont colleges.  The list goes on and on.  Ken White, who has been on the front lines of free speech defense for years, has recently said there are many reasons to be optimistic.  In particular, the Supreme Court has been virtually absolutist in its defense of free speech over the past decades.  But someone said something to me that I have never forgotten -- the Supreme Court tends to reflect the values of college kids two generations earlier.  Without massive new medical interventions (which are unlikely under the coming Sanders-Warren socialized medicine regime) I don't expect to be around to see it.

Too bad Dante is not around because he might have written a nice circle of hell for Evergreen President George Sumner Bridges.  I can't tell if this guy is a complete idiot or if everything we hear from him is some sort of hostage video with him speaking under duress, perhaps with SJW's hiding in his office closet to enforce conformity.

Wow, With This Level of Understanding of How Government Works, It's Hard To Believe We Struggle to Have Meaningful Public Discourse

I don't have any particular comment on the Supreme Court decision in Voisine v. United States, but I have to highlight the headline that was just shared with me on Facebook:

Another Big Win: SCOTUS Just Banned Domestic Abusers From Owning Firearms

Um, pretty sure that is not what happened.

First, convicted domestic abusers generally are already banned from owning firearms.

Second, I am fairly certain that SCOTUS did not ban anything (not surprising since they don't have a Constitutional power to ban anything).  There was some legal uncertainty in the definitions of certain terms in a law (passed by Congress and signed by the President) that restricted gun ownership based on certain crimes.  This dispute over the meaning of these terms bounced back and forth in the courts until the Supreme Court took the case and provided the final word on how the terms should be interpreted by the judicial system.

This decision strikes me as a pretty routine sort of legal result fixing a niche issue in the interpretation of terms of the law.  How niche?  Well apparently Voisine was convicted (multiple times) of "“intentionally, knowingly, or recklessly” hurting his girlfriend.  The facts of the case made it pretty clear that he was beating on her on purpose, but he argued that due to the "or" in the wording of the crime he was convicted of, as far as the law is concerned he might have only been convicted of recklessness which shouldn't be covered under the gun ownership ban.  Really, this silliness should never have reached the Supreme Court, and did (in my interpretation) only because second amendment questions were involved, questions stripped off by SCOTUS.  Freed on any Second Amendment implications, SCOTUS rightly slapped his argument down as stupid and said he was subject to the ban.  Seems sensible to me, and this sort of thing happens literally constantly in the courts -- the only oddball thing in my mind was how this incredibly arcane niche issue made it to the SCOTUS.

Instead, the article is breathless about describing this incredibly niche case as closing a "gaping loophole."  It is written as if it is some seminal event that overturns a horror just one-notch short of concentration camps  -- "This is a win for feminism, equality in the home, and in finally making movements on reigning in this country’s insane, libertarian approach to gun-owning."    And then of course the article bounces around in social media, making everyone who encounters it just a little bit dumber.

Citizens United Haters, Is This Really What You Want? John Oliver Brexit Segment Forced to Air After Vote

A lot of folks, particularly on the Left, despise the Citizens United decision that said it was unconstitutional to limit third party political speech, particularly prior to an election (even if that speech was made by nasty old corporations).  The case was specifically about whether the government could prevent the airing of a third-party produced and funded documentary about one of the candidates just before an election.  The Supreme Court said that the government could not put in place such limits (ie "Congress shall make no law...") but Britain has no such restrictions so we can see exactly what we would get in such a regime.  Is this what you want?

As Britain gears up to vote in the EU referendum later this week, broadcasters are constantly working to ensure their coverage remains impartial. One such company is Sky, which has this week been forced to delay the latest instalment of John Oliver's Last Week Tonight HBO show. Why? Because it contains a 15-minute diatribe on why the UK should remain part of Europe.

Instead of airing the programme after Game of Thrones on Sky Atlantic on Monday night, like it does usually, Sky has pushed it back until 10:10pm on Thursday, just after the polls close. Social media users are up in arms about the decision, but in reality, Sky appears to be playing everything by the book.

Sky's decision allows it to adhere to Ofcom rules that come into effect during elections and referendums. "Sky have complied with the Ofcom broadcasting restrictions at times of elections and referendums that prohibit us showing this section of the programme at this moment in time. We will be able to show it once the polls close have closed on Thursday," a Sky spokesperson told Engadget.

In March, the regulator warned broadcasters that they'd need to take care when covering May's local elections and the subsequent Brexit vote. Section Five (which focuses on Due Impartiality) and Section Six (covering Elections and Referendums) of Ofcom's Code contain guidelines that are designed stop companies like Sky from influencing the public vote. Satirical content is allowed on UK TV networks during these times, but Oliver's delivery is very much political opinion based on facts, rather than straight humour.

By the way, the fact vs. satire distinction strikes me as particularly bizarre and arbitrary.

When will folks realize that such speech limitations are crafted by politicians to cravenly protect themselves from criticism.  Take that Citizens United decision.  Hillary Clinton has perhaps been most vociferous in her opposition to it, saying that if President she will appoint Supreme Court judges that will overturn it.  But note the specific Citizens United case was about whether a documentary critical of .... Hillary Clinton could be aired.  So Clinton is campaigning that when she takes power, she will change the Constitution so that she personally cannot be criticized.  And the sheeple on the Left nod and cheer as if shielding politicians from accountability is somehow "progressive."

 

Huh? Punishment for Taking Out A Loan You Couldn't Afford is... You Don't Have To Pay the Loan Back?

I really was not going to blog this week but this article exceeded by fury threshold, which is pretty hard to do nowadays.

The report, shared with MarketWatch, states that some of Puerto Rico’s debt may have been issued illegally, allowing the government to potentially declare the bonds invalid and courts to then decide that creditors’ claims are unenforceable. The scope of the audit report, issued by the island’s Public Credit Comprehensive Audit Commission, covers the two most recent full-faith-and-credit debt issues of the commonwealth: Puerto Rico’s 2014 $3.5 billion general-obligation bond offering and a $900 million issuance in 2015 of Tax Refund Anticipation Notes to a syndicate of banks led by J.P Morgan

So government officials break the law by taking out a loan they shouldn't have taken out, and the punishment is that they get to keep the money and not pay it back?  This is absolutely absurd.  That means that completely innocent third parties are essentially being fined $4.4 billion for the malfeasance of Puerto Rico's government officials.  Were the creditors truly innocent?  Well, the same report goes on to further criticize the government officials for not telling their creditors that what the government was asking for was illegal

Puerto Rico did not inform bondholders that its constitution forbids it from using debt to finance deficits. That, the commission’s report says suggests “substantive” noncompliance with the letter of the constitution

So in fact, incredibly, the creditors' very innocence is used as part of the proof that the debt was illegal, and thus that creditors should be expropriated.

I thought that this couldn't possibly be the law, except that the Supreme Court has already upheld the same outcome in other cases:

The U.S. Supreme Court has said in the Litchfield v. Ballou case and, more recently, in litigation related to Detroit’s bankruptcy that borrowing above a debt ceiling may allow the issuer to declare debt invalid and, therefore, unpayable. Detroit went to court to invalidate $1.45 billion in certificates of participation, debt issued by two shell companies called “service corporations.” The parties settled before the case went to trial, but, while refusing two initial proposed settlements, the judge stated that Detroit’s argument had “substantial merit” and that the suit would have had a “reasonable likelihood of success.”

This is they type of thing that occurs in banana republics.  No honest nation with a strong rule of law operates this way.  And what is to prevent other distressed government bodies with limited ethics (e.g. the State of Illinois) from carefully borrowing money in a way that is subtly illegal and then repudiate it a few years later?

Democratic Socialism

Not sure where this came from:

bernie sanders democratic socialism

Thomas Sowell writes:

What President Obama has been pushing for, and moving toward, is more insidious: government control of the economy, while leaving ownership in private hands. That way, politicians get to call the shots but, when their bright ideas lead to disaster, they can always blame those who own businesses in the private sector.

What President Obama has been pushing for, and moving toward, is more insidious: government control of the economy, while leaving ownership in private hands. That way, politicians get to call the shots but, when their bright ideas lead to disaster, they can always blame those who own businesses in the private sector.Politically, it is heads-I-win when things go right, and tails-you-lose when things go wrong. This is far preferable, from Obama's point of view, since it gives him a variety of scapegoats for all his failed policies, without having to use President Bush as a scapegoat all the time.

Back in the 1920s, however, when fascism was a new political development, it was widely -- and correctly -- regarded as being on the political left. ....Mussolini, the originator of fascism, was lionized by the left, both in Europe and in America, during the 1920s. Even Hitler, who adopted fascist ideas in the 1920s, was seen by some, including W.E.B. Du Bois, as a man of the left.

People get blinded (probably for good reason, given the heinousness) by Hitler's rounding people up in camps and can't really get beyond that in thinking about fascism.  Which is why I sometimes find it helpful to use the term "Mussolini-style fascism".   And the US Left, led by FDR, was very much in thrall with portions of Mussolini-style fascism, so much so that the National Industrial Recovery Act was a modelled on Mussolini's economic management of command and control by corporatist boards.   Here is one description:

The image of a strong leader taking direct charge of an economy during hard times fascinated observers abroad. Italy was one of the places that Franklin Roosevelt looked to for ideas in 1933. Roosevelt's National Recovery Act (NRA) attempted to cartelize the American economy just as Mussolini had cartelized Italy's. Under the NRA Roosevelt established industry-wide boards with the power to set and enforce prices, wages, and other terms of employment, production, and distribution for all companies in an industry. Through the Agricultural Adjustment Act the government exercised similar control over farmers. Interestingly, Mussolini viewed Roosevelt's New Deal as "boldly... interventionist in the field of economics." Hitler's nazism also shared many features with Italian fascism, including the syndicalist front. Nazism, too, featured complete government control of industry, agriculture, finance, and investment.

The NRA has to be in the top 10 best overturn decisions by the Supreme Court.  Thought experiment -- do you think you could buy a Honda, Toyota, Tesla, Nissan or Kia in the US today if GM and the UAW were running the automotive board?

Advice and Consent

I will begin by saying that I am the last one in the world to bemoan Congressional "gridlock".  I have this argument all the time, but I just don't see that we Americans are facing some imminent shortage of laws and so lack of productive lawmaking by Congress doesn't pose any great problem for me.  And gridlock certainly is not an adequate reason for rule by Presidential fiat, as I have seen argued a number of times in the past couple of years.  There is no Constitutional clause allowing Executive action if Congress won't pass the President's preferred legislation.  The narrow party split in Congress is a reflection of a real split in American voters --  gridlock on particular issues in Congress will pass, as it always has, when the electorate coalesces into a majority on the issue.

All that being said, I have always thought that the Senate's advice and consent functions should be exempt from the filibuster.  Presidential appointments need to get an up or down vote in some reasonable amount of time.  It is fine if the Senate wants to say "no" to a particular judge or appointment, but there needs to be a vote.  I say this obviously in the context of the current Supreme Court vacancy.  I am almost certain not to like Obama's appointment, so I say this now before I get tempted to move off my principles here in the exigency of politics.  But not voting on a Supreme Court nominee for a full year is just stupid  (btw Republicans, for all your love of the Constitution, show me anywhere in the document where it says "lame duck" presidents have less power).   If Republicans want to run out the clock by voting down one candidate after another, then they can of course do that, and suffer the political consequences -- positive or negative -- of doing so.  And suffer the future precedent as well (if a one year wait is the precedent now, what about 2, or 4, next time?)   If Republicans wanted to pick Supreme Court nominees in 2016, they should have won the last Presidential election.

Politics is a multi-round game that goes on for decades and centuries.  This is one reason the filibuster still exists.  Both parties have come achingly close to eliminating it when they had slim majorities in the Senate, but both walked away in part because this was a move that worked for one round of the game (whatever vote was at hand) but has downsides in a multi-round game (where one's party will be in the Senate minority again and will want the filibuster back).  It just infuriates me that the current participants in this game seem bent on making decisions that seem indifferent to future rounds of the game.  GWB and Obama have both done this with expansions of executive power - the Left is cheering Obama on to govern by fiat but will they really be happy with these precedents in a, for example, Cruz administration?  Ditto now with the Republicans and trying to run a full year off the clock on a Supreme Court nomination.

Postscript:  By the way, the very fact a Supreme Court nomination is so politically radioactive is a sign of a basic governmental failure in and of itself.  The libertarian argument is that by giving the government so much power to intervene in so many ways that creates winners and losers by legislative diktat, we have raised the stakes of minutes points of law to previously unimaginable levels.  In a world where the government is not empowered to micro-manage our lives, a Supreme Court nomination would be as interesting as naming the postmaster general.

More Evidence Against My Least Favorite Legislation of the 20th Century

I have written about the National Industrial Recovery Act many times, a love-note from FDR to Mussolini's fascist economic system that was thankfully overturned by the Supreme Court.  Its intent was to make the corporate-crony state the default economic system of the US.

Essentially, the NIRA cartelized the US economy, creating government-sponsored cartels in every industry that would set prices and wages as well as output and quality.  You can imagine exactly how well upstart competitors would have fared under this system.  I am pretty sure, for example, that the government mainframe cartel would never have let apply, or even DEC, see the light of day.

Now, a couple of academics have laid the blame for the long duration of the Great Depression at the NIRA's doorstep.

"President Roosevelt believed that excessive competition was responsible for the Depression by reducing prices and wages, and by extension reducing employment and demand for goods and services," said Cole, also a UCLA professor of economics. "So he came up with a recovery package that would be unimaginable today, allowing businesses in every industry to collude without the threat of antitrust prosecution and workers to demand salaries about 25 percent above where they ought to have been, given market forces. The economy was poised for a beautiful recovery, but that recovery was stalled by these misguided policies."

Using data collected in 1929 by the Conference Board and the Bureau of Labor Statistics, Cole and Ohanian were able to establish average wages and prices across a range of industries just prior to the Depression. By adjusting for annual increases in productivity, they were able to use the 1929 benchmark to figure out what prices and wages would have been during every year of the Depression had Roosevelt's policies not gone into effect. They then compared those figures with actual prices and wages as reflected in the Conference Board data.
In the three years following the implementation of Roosevelt's policies, wages in 11 key industries averaged 25 percent higher than they otherwise would have done, the economists calculate. But unemployment was also 25 percent higher than it should have been, given gains in productivity.

Meanwhile, prices across 19 industries averaged 23 percent above where they should have been, given the state of the economy. With goods and services that much harder for consumers to afford, demand stalled and the gross national product floundered at 27 percent below where it otherwise might have been.

"High wages and high prices in an economic slump run contrary to everything we know about market forces in economic downturns," Ohanian said. "As we've seen in the past several years, salaries and prices fall when unemployment is high. By artificially inflating both, the New Deal policies short-circuited the market's self-correcting forces."

The policies were contained in the National Industrial Recovery Act (NIRA), which exempted industries from antitrust prosecution if they agreed to enter into collective bargaining agreements that significantly raised wages. Because protection from antitrust prosecution all but ensured higher prices for goods and services, a wide range of industries took the bait, Cole and Ohanian found. By 1934 more than 500 industries, which accounted for nearly 80 percent of private, non-agricultural employment, had entered into the collective bargaining agreements called for under NIRA.

Hmm.  Certainly wages and prices are going to be especially "sticky" if the government creates cartels to keep them that way.

Achievement Unlocked: Banned by Mother Jones

Not really sure what I did to reach this achievement, but somehow I got banned in the last 2 days by Mother Jones, and probably by Kevin Drum.   My comment history is here, and I am totally perplexed what led to this.  My last comment was on a post of Drum's about hospital price competition, where I wrote:

The authors portray this (at least in the quoted material) as an anti-trust issue, but I suspect a bigger problem is the cronyist certificate of need process. In many locations, new hospitals, or hospital expansions (even things as small as buying a new cat scanner) require government permission in the form of a certificate of need. As one may imagine, entrenched incumbents are pretty good at managing this process to make sure they get no new competition. This, by the way, is a product of classic progressive thinking, which in its economic ignorance saw competition as duplicative and wasteful. We are lucky the Supreme Court shot down FDR's NRA or we would have this sort of mess in every industry.

Hard to believe this got me banned, unless Mother Jones has gotten really thin-skinned.   The second to last comment I made there was actually in support of Mother Jones, congratulating them on winning a libel suit against them.   The most recent one before that was over 2 months ago.  This leads me to believe the comment above had to have gotten me banned, but the mind boggles -- did I run into some secret National Industrial Recovery Act fetishist?

Update:  Mr. Drum, who I respect while disagreeing with frequently, was nice enough to write me back and said he didn't ban me, it had to come from Mother Jones staff somewhere.  Which leaves me even more confused.   Not sure why this comment among all the flotsam that washes ashore in the totality of Mother Jones comment sections would earn the ire of some intern.

Why It Is Particularly Unseemly That Hillary Clinton Keeps Attacking the Citizens United Decision

I think any opposition to free speech, particularly as exercised in an election, is unseemly, but Hillary Clinton's attacks on the Supreme Court's Citizens United decision are particularly so.

Why?  Well to understand, we have to remember what the Citizens United case actually was.  Over time, the decision has been shorthanded as the one that allows free corporate spending in elections, but this was not actually the situation at hand in the case.   I could probably find a better source, but I am lazy and the Wikipedia summary is fine for my purposes:

In the case, the conservative lobbying group Citizens United wanted to air a film critical of Hillary Clinton and to advertise the film during television broadcasts in apparent violation of the 2002 Bipartisan Campaign Reform Act (commonly known as the McCain–Feingold Act or "BCRA").[2] Section 203 of BCRA defined an "electioneering communication" as a broadcast, cable, or satellite communication that mentioned a candidate within 60 days of a general election or 30 days of a primary, and prohibited such expenditures by corporations and unions.

Yes, the Supreme Court generalized the decision to all corporations and unions (good for them) but the narrow issue in the case was whether an independent non-profit group could air a negative film about Hillary Clinton in the run-up to an election in which she was a candidate.

So when Hillary Clinton derides the Citizens United decision, she is arguing that the government should have used its powers to suppress a film critical of her personally.   She is trying to protect herself from criticism.

Why Large Corporations Often Secretly Embrace Regulation

I wrote the other day about how Kevin Drum was confused at why broadband stocks might be rising in the wake of news that the government would regulate broadband companies as utilities.  I argued the reason was likely because investors know that such regulation blocks most innovation-based competition and tends to guarantee companies a minimum profit -- nothing to sneeze at in the Internet world where previous giants like AOL, Earthlink, and Mindspring are mostly toast.

James Taranto pointed today to an interesting Richard Eptstein quote along the same lines (though he was referring to hospitals under Obamacare):

Traditional public utility regulation applies to such services as gas, electric and water, which were supplied by natural monopolists. Left unregulated, they could charge excessive or discriminatory prices. The constitutional art of rate regulation sought to keep monopolists at competitive rates of return.

To control against the risk of confiscatory rates, the Supreme Court also required the state regulator to allow each firm to obtain a market rate of return on its invested capital, taking into account the inherent riskiness of the venture.

Arrogance of the Elite

I am pretty freaking cynical about the political process, so it takes something pretty bad to catch my attention.  This attitude by Obamacare architect Jonathon Gruber, which is likely shared by most of the Administration, simply makes me sick:

An architect of the federal healthcare law said last year that a "lack of transparency" and the "stupidity of the American voter" helped Congress approve ObamaCare.

In a clip unearthed Sunday, Massachusetts Institute of Technology Professor Jonathan Gruber appears on a panel and discusses how the reform earned enough votes to pass.

He suggested that many lawmakers and voters didn't know what was in the law or how its financing worked, and that this helped it win approval.

"Lack of transparency is a huge political advantage,” Gruber said. "And basically, call it the stupidity of the American voter or whatever, but basically that was really, really critical for the thing to pass."

Gruber made the comment while discussing how the law was "written in a tortured way" to avoid a bad score from the Congressional Budget Office. He suggested that voters would have rejected ObamaCare if the penalties for going without health insurance were interpreted as taxes, either by budget analysts or the public.

"If CBO scored the [individual] mandate as taxes, the bill dies," Gruber said.

"If you had a law that made it explicit that healthy people are going to pay in and sick people are going to get subsidies, it would not have passed," he added.

By the way, Jonathon Gruber was the one in 2012 who said over and over that the limitation of subsidies to state-run exchanges was not a drafting error, but was an intentional feature meant to give incentives to states to create exchanges.  Now that it is clear that incentive did not do its job, and a case is in front of the Supreme Court attempting to enforce the plain language of the law, Gruber is now saying that he mispoke (over and over again) in 2012 and it was a typo.  Given the fact that he has now admitted he would gladly lie (and has) to the public to defend Obamacare, how much should we believe his current claims?

Libertarians are Hosed

I cannot find a single opposition statement to the Hobby Lobby decision that does not contain some variant of this:

Today, the Supreme Court ruled against women’s basic access to contraceptive healthcare. This decision opens up the door for for-profit companies to impose their personal beliefs on their employees and deny them basic contraceptive care.

Basic healthcare decisions shouldn't be subject to the whims of bosses and employers. ...

I will continue to fight for the right of every woman to make her own private medical decisions. #notmybossbusiness

It seems that a huge number of Americans, even nominally intelligent ones, cannot parse the difference between banning an activity and some third party simply refusing to pay for you to engage in that activity.  This really does not seem to be a complicated distinction, but yesterday I watched something like 40% of America fail to make it.  How is it possible to make any progress on liberty and individual rights if peoples' thinking is so sloppy?

By the way, the passage above is from the Facebook page of Hanna-Beth Jackson, a California state senator.  The reason I find her faux libertarianism initeresting is that Ms. Jackson is co-sponsor of the bill requiring explicit verbal or written consent for each sex act (and each step of the sex act) in California colleges.  A woman's body may not be her boss's business but it appears it is the California government's business, at least according to Ms. Jackson.  This is typical of the abortion and birth control issues, where supporters use libertarian-ish arguments narrowly to defend abortion and contraception rights, but then go all-in for authoritarianism everywhere else.  Jackson's bedroom regulation bill is co-sponsored by Kevin De Leon, who said yesterday "No boss should have the power to interfere with a worker’s personal health decisions."  Because that's his job, I guess.

Education and Affirmative Action and "Diversity"

I don't really have much to say about today's Supreme Court decision on affirmative action.  Given that there were 4 different opinions written, the whole issue seems to still be in much dispute.  The continuing Court opinion is, I think, that affirmative action is legal (but as expressed today, not required) in education to address diversity and other goals.

My only thought on this is one I have had a long time about colleges and diversity.  Universities are, if anything, institutions based on ideas and thought.  So it has always been amazing to me that university diversity programs focus not on having a diversity of ideas, but on have a diversity of skin pigment and reproductive plumbing.  In fact, if anything, most universities seem to be aspiring towards creating an intellectual monoculture.  Diversity of opinion, of politics, and of general outlook among prospective students are not even decision-making variables in any educational institution I know of.  And within the faculty, many institutions seem intent on purging from their ranks any single voice that diverges from the majoritarian view.  I could have probably found more diversity of political opinion in a 19th century London gentleman's club than I can today in many campus faculties.

The Progressive View of the First Ammendment

I didn't really pay all that much attention to the Supreme Court's election speech case yesterday.   But as I learn the reasoning that is driving the dissent by the four Justices on the Left, I am left deeply worried about the future of speech rights.

I really haven't put much time in understanding how Progressives justify strong speech protections for non-political activity (e.g. pornography) while eschewing them for political speech (in the form of multiple types of limits on the amount and timing of speech one is allowed prior to an election).  Justice Breyer, in writing for the minority in in McCutcheon, lays out what I suppose is the Progressive position.

First up, here is David Bernstein

But how can liberals, who so expansively interpret other constitutional provisions, narrow the First Amendment so that campaign finance no longer gets protection?

Justice Breyer’s dissent today shows the way, as he revives the old Progressive conception of freedom of speech as serving instrumental purposes (which he calls “First Amendment interests”), rather than protecting individual rights or reining in potential government abuses.  And once we identify those “First Amendment interests,” we must limit freedom of speech to ensure that they are advanced.

Thus, Justice Breyer, writes, “Consider at least one reason why the First Amendment protects political speech. Speech does not exist in a vacuum. Rather, political communication seeks to secure government action. A politically oriented ‘marketplace of ideas’ seeks to form a public opinion that can and will influence elected representatives.”  Just to make sure he’s not being too subtle, Breyer goes back to the source, Justice Brandeis, citing his opinion in Whitney for the proposition that freedom of speech is protected because it’s â€essential to effective democracy.”

Further showing off his affinity for the Progressive statism of a century ago (noted by Josh Blackman and me here), Breyer turns constitutional history on its head, by declaring that the purpose of the First Amendment was not to prevent government abuses, but to ensure â€public opinion could be channeled into effective governmental action.”  ...

Breyer adds that “corruption,” by which he means individuals engaging in too much freedom of speech via campaign donations, â€derails the essential speech-to-government-action tie. Where enough money calls the tune, the general public will not be heard. Insofar as corruption cuts the link between political thought and political action, a free marketplace of political ideas loses its point.”

This strikes me as both tortured and dangerous.  Once one posits that that there is some ill-defined, un-measurable value like "promotion of positive government action" can be balanced against free speech, then the government gets a nearly unlimited ability to limit speech.

James Taranto also highlights parts of the decision

In making the case for the constitutionality of restrictions on campaign contributions, Breyer advances an instrumental view of the First Amendment. He quotes Justice Louis Brandeis, who in 1927 "wrote that the First Amendment's protection of speech was 'essential to effective democracy,' " and Brandeis's contemporary Chief Justice Charles Evans Hughes, who in 1931 argued that " 'a fundamental principle of our constitutional system' is the 'maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people" (emphasis Breyer's).

After citing Jean-Jacques Rousseau's (!) views on the shortcomings of representative democracy, Breyer quotes James Wilson, one of the Founding Fathers, who argued in a 1792 commentary that the First Amendment's purpose was to establish a "chain of communication between the people, and those, to whom they have committed the exercise of the powers of government." Again quoting Wilson, Breyer elaborates: "This 'chain' would establish the necessary 'communion of interests and sympathy of sentiments' between the people and their representatives, so that public opinion could be channeled into effective governmental action."

And here's how Breyer sums it all up: "Accordingly, the First Amendment advances not only the individual's right to engage in political speech, but also the public's interest in preserving a democratic order in which collective speech matters."

What is democratic "order"?  What the hell is "collective" speech?  This is the kind of thing I would expect dictators-masquerading-as-elected-officials to spout as an excuse for suppressing dissent.  After all, doesn't dissent interfere with order?  How can we have collective speech when there are these folks out there disagreeing so much?   Again from Taranto:

It's important to note that when Breyer refers to "collective" rights, what he does not have in mind is individuals exercising their rights by voluntarily collecting themselves into organizations. In fact, the prevailing left-liberal view, most notably with respect to  (2010), is that collections of individuals, at least when they take corporate form, have (or should have) no rights.

The only "collective" that matters to Breyer is the one from which you cannot opt out except by the extreme measure of renouncing your citizenship: "the people" or "the public" as a whole. In Breyer's view, the purpose of the First Amendment is to see that (in Chief Justice Hughes's words) "the will of the people" is done. Individual rights are but a means to that end. To the extent they frustrate it, they ought to be curtailed. You will be assimilated.

Making Fun of the Supreme Court in a Supreme Court Brief

The PJ O'Rourke / Cato Supreme Court amicus brief that is making the rounds is well worth your time.  A lot of it is funny, like this footnote:

While President Obama isn’t from Kenya, he is a Keynesian—so you can see where the confusion arises.

But my favorite is footnote 15 where they make fun of the Supreme Court

Driehaus voted for Obamacare, which the Susan B. Anthony List said was the equivalent of voting for taxpayer- funded abortion. Amici are unsure how true the allegation is given that the healthcare law seems to change daily, but it certainly isn’t as truthy as calling a mandate a tax.