26 May 2010

Today’s Tabbloid
PERSONAL NEWS FOR [email protected]

FISCALLY CONSERVATIVE BLOG FEEDS • Persian

Libertarianism: A Primer Goes • Spanish

Global [Cato at Liberty] • Korean

MAY 25, 2010 05:13P.M.
• Italian
By David Boaz
• Chinese

and of course

• audio and

• Kindle.

You might notice a couple of things about that list. First, it includes a lot
of communist or ex-communist countries, where perhaps they are
especially attuned to the conflict between freedom and statism. And
second, it has not yet been translated into of the languages of Northwest
Europe — German, French, Dutch, Scandinavian languages. Perhaps
those countries have achieved the end of history and have no need of
further ideological debates. Perhaps. I wrote the following in the preface
to the Italian edition:

I’m delighted to report that just this week I have received copies of The publication of a primer on libertarianism in Italy is
Libertarianism: A Primer published in Italian and Korean, the latter another sign of two heartening developments: the continuing
delivered to me personally by the president of the Korea Economic process of the world’s people being drawn closer together,
Research Institute. I now count the following translations: and the worldwide spread of the ideas of peace and freedom
after a century of war and statism.
• Japanese
This book may seem to be reaching Italy at an inopportune
• Russian moment, a time when people from the president of France to
Nobel Prize-winning economists are proclaiming that
• Czech “laissez-faire is finished.” One American pundit of the center-
left even exulted in “the end of libertarianism.” These critics
• Polish are short-sighted. The idea of libertarianism, of liberty under
law, is needed now more than ever….
• Serbian
Libertarianism is sometimes perceived as a radical
• Bulgarian philosophy. And in some ways it is: It rejects and has fought
in turn absolutism, communism, fascism, national socialism,
• Cambodian corporate statism, theocracy, and every form of tyranny over
the mind of man. Libertarians advance a radical and
• Mongolian consistent vision of individual rights and strictly limited
government that would eliminate the great bulk of the
• Kurdish modern state, even in mixed-economy democracies. But in a
broader sense libertarianism is the fundamental philosophy

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Today’s Tabbloid PERSONAL NEWS FOR [email protected] 26 May 2010

of the modern world: liberty, equality, enterprise, the rule of president lacks the moral authority to lock people up for behavior
law, constitutional government. These ideas have become so he engaged in as a young man.”
commonplace that we forget how radical they were at one
time. Libertarians want to apply those principles more • Why China holds the key to maintaining peace in East Asia.
consistently than do the adherents of other ideologies. But
few people in the modern world would want to reject • Podcast: “Kagan and Speech” featuring John Samples.
libertarian ideas wholesale.

The largest trends in the world reflect libertarian values.

Communism is virtually gone, and few people still defend FISCALLY CONSERVATIVE BLOG FEEDS
state socialism. Eastern Europe is struggling to achieve
societies based on property rights, markets, and the rule of Central Difference Between
law. Honest observers throughout the developed world
understand that the middle-class welfare states are Carly Fiorina and Tom
unsustainable and will have to be radically reformed. The
information revolution is empowering individuals and small Campbell: Taxes [Americans for
groups and undermining the authority of centralized power.
Tax Reform]
Perhaps most importantly, the increasing globalization of the MAY 25, 2010 04:31P.M.
world economy means that countries that want to prosper
will have to adopt a decentralized, deregulated, market- Yesterday, Carly Fiorina appeared on Fox Business News and took a
oriented economic model. You can’t avoid world markets in moment during the interview to discuss the importance of the Taxpayer
the 21st century; or if you do, you will be left out of the Protection Pledge. California taxpayers should be encouraged ...
phenomenal economic growth that global markets and
technological development will deliver.

So one reason that Italian readers should be interested in FISCALLY CONSERVATIVE BLOG FEEDS
libertarianism is very simple and practical: these are the ideas
that drive the modern world, and you need to know about Agency Will Stop Treating
them. The other reason is that libertarianism offers to every
country the promise of peace, economic growth, and social Political Speech as Fair-
harmony. I hope Italian readers will join libertarians around
the world in working to restrain state power and liberate Housing Violation [Cato at
individuals, families, associations, and enterprises.
Liberty]
MAY 25, 2010 03:12P.M.

FISCALLY CONSERVATIVE BLOG FEEDS By Walter Olson

Tuesday Links [Cato at Liberty] The California Department of Fair Employment and Housing has agreed
MAY 25, 2010 04:38P.M. to stop investigating citizens on the theory that their political expression
in and of itself constitutes a potential violation of laws against housing
By Chris Moody discrimination. The concession came in a settlement with Julie Waltz,
whom it had dragged through an investigation for publicly opposing the
• Cato Chairman Robert A. Levy on Rand Paul’s “principled placement of subsidized group homes in and near her Norco, Calif.
stumble.” residence. A news release from the Center for Individual Rights:

• Daniel Griswold: Fears of immigrant crime are unfounded. During the year-long investigation, state investigators told
“Perceptions about immigrants and crime do not square with the Waltz that her speech violated state fair housing laws,
most basic data. After years of witnessing a rise in the number of requested that she refrain from her speech activities, and
illegal immigrants in their state, the people of Arizona are in reality threatened her with prosecution. An investigator also told her
less likely to be victims of crime than at any time in the past four that the investigation would end if she removed signs from
decades.” her yard objecting to the next-door group home as well as
signs posted by other people in her neighborhood. Waltz
• Gene Healy on Obama’s continuation of the drug war: “The declined to remove the signs. …

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Today’s Tabbloid PERSONAL NEWS FOR [email protected] 26 May 2010

Waltz was represented by the Los Angeles, CA firm of right now, that could very well turn into one big global deflationary
Munger, Tolles & Olson LLP, which donated its time pro mistake.
bono and the Center for Individual Rights.
More to be revealed…
When it comes to trampling the First Amendment, California fair
housing officials are serial offenders: in 2000 and again in 2006, CIR
says, the Ninth Circuit handed down rulings restraining them from
similar practices. FISCALLY CONSERVATIVE BLOG FEEDS

Daily Media Spotlight May 25,

FISCALLY CONSERVATIVE BLOG FEEDS 2010 [Americans for Tax
Are We Looking at a Second Reform]
MAY 25, 2010 02:52P.M.
Half Slowdown? [Larry
Joshua Culling, the state affairs manager at ATR, wrote an op-ed for The
Kudlow’s Money Politic$] Daily Caller highlighting Gov. Tim Pawlenty’s (R-Minn.) aversion to
MAY 25, 2010 03:08P.M. higher taxes. As governor of Minnesota, the only s...

Stocks are getting battered across-the-board yet again today, with all of
the major U.S. stock indices down 2 percent as of this writing. The Dow
is down over 1300 points, or 12 percent, from its recent April 23rd high. FISCALLY CONSERVATIVE BLOG FEEDS

Investor fear is running rampant across Wall Street and around the Tax Extenders Gift That Keeps
globe. And, as if the contagious European debt crisis weren’t enough, the
markets now have military tensions between North and South Korea to on Giving: Raises Income Taxes,
add to their laundry list of worries.
Energy Taxes, and Bails Out
So, the question must be asked: Are we looking at a second half
slowdown? Is growth going to come in only around 1-2 percent, instead Unions [Americans for Tax
of say, 3 or 4 percent? Is that the real message of our sinking stock
market right now? Reform]
MAY 25, 2010 02:44P.M.
We’ve got Spanish banks going down now, bank-to-bank funding stress
rising in Europe, gold still soaring, the euro still falling and Nero Today, Americans for Tax Reform continues to urge members of the
fiddling. Libor is now up 11 days in a row. Did someone say contagion? House to oppose HR 4213, the tax extenders package. Click here for the
Systemic risk? Interconnectedness? PDF of this document sent to the Hill. It seems Democrat...

Meanwhile, credit risk spreads between high-yield junk bonds and

Treasurys right here in the U.S. have jumped roughly 200 basis points in
just the last month. These are not good signs.

Over in Europe, they’re still guaranteeing all of their welfare state

countries. That’s wrong. What they really ought to be doing is
temporarily guaranteeing their bank debt to avoid a credit meltdown. Let
these countries sweat bullets to curb their welfare states.

One silver lining in all of this remains the steep Treasury yield curve. It’s
still predicting no double-dip recession. We’ve also got a strong King
Dollar which is pushing down energy prices. Gas prices are actually
falling heading into Memorial day weekend. This of course becomes a tax
cut for American consumers and businesses. That’s a good thing.

One final concern worth noting: if China were to jack up its renminbi

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Today’s Tabbloid PERSONAL NEWS FOR [email protected] 26 May 2010

FISCALLY CONSERVATIVE BLOG FEEDS

FISCALLY CONSERVATIVE BLOG FEEDS
On Tonight’s Kudlow Report
Congress Set to Quadruple Oil
[Larry Kudlow’s Money
Tax [Americans for Tax Reform]
Politic$] MAY 25, 2010 01:28P.M.
MAY 25, 2010 01:41P.M.
In response to the BP oil spill, Congress is ready to pass another tax hike
on oil, one that will quadruple the current tax from 8 cents to 32 cents.
This blatant tax on energy will cos...

FISCALLY CONSERVATIVE BLOG FEEDS

ATR Urges Cuomo to Sign the

Taxpayer Protection Pledge
Tonight at 7pm ET:
[Americans for Tax Reform]
MAY 25, 2010 12:29P.M.
MARKETS IN TURMOIL: WITH KING DOLLAR RISING, IS
THE WORST OVER? In response to Andrew Cuomo’s promise not to raise taxes as governor of
New York, Americans for Tax Reform sent Cuomo a letter this morning
urging him to sign the Taxpayer Protection Pledge. ...

- Jim Iuorio, Options Action Contributor; Director, TJM Institutional

Services FISCALLY CONSERVATIVE BLOG FEEDS
- Don Luskin, CNBC Contributor; Trend Macro Chief Investment Officer
- CNBC’s Rick Santelli
New Crime Stats Contradict
GEITHNER’S EUROPEAN BANK STRESS TEST
Anti-Immigrant Hype [Cato at
CNBC senior economics reporter Steve Liesman reports.
Liberty]
DO WE REALLY WANT TO KNOW THE SHAPE EUROPEAN MAY 25, 2010 12:22P.M.
BANKS ARE IN?
The aforementioned panel will weigh in. By Daniel Griswold

CALIFORNIA: HOW DO YOU FIX THE 8TH LARGEST FBI crime figures reported in today’s Wall Street Journal challenge the
ECONOMY IN THE WORLD? perception that illegal immigrants have unleashed a crime wave in
Meg Whitman, former eBay CEO; (R) California Gubenatorial Candidate Arizona.

$190 SUPPLEMENTAL STIMULUS BILL; TAX HIKES One of the clinching arguments for Arizona’s tough new law aimed at
CNBC chief Washington correspondent John Harwood reports. illegal immigration has been the perception in that state that crime has
been rising, and that undocumented workers are largely to blame. Yet
AMERICAN JOBBERY ACT? the Journal reports that the incidence of violent crime in Phoenix last
year plunged 16.6 percent compared to 2008, a rate of decline that was
- Julian Epstein, LMG CEO; Fmr. Democratic Chief Counsel three times the national average.
- Jerry Bowyer, CNBC Contributor/Syndicated Columnist
According to the Phoenix Police Department, the downward trend in
crime has continued into 2010 even as the “illegal immigrant crime
Please join us. The Kudlow Report. 7pm ET. CNBC.
wave” story reverberates on cable TV and talk radio. As the Journal story
reports:

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Today’s Tabbloid PERSONAL NEWS FOR [email protected] 26 May 2010

In Phoenix, police spokesman Trent Crump said, “Despite all The real action is outside Washington, though. Virginia, Utah
the hype, in every single reportable crime category, we’re and Idaho have outlawed the new individual mandate, which
significantly down.” Mr. Crump said Phoenix’s most recent will require everyone to purchase health cover, and other
data for 2010 indicated still lower crime. For the first quarter states are looking at similar measures. Elsewhere, opponents
of 2010, violent crime was down 17% overall in the city, while have taken to the ballot box. Missouri will hold a referendum
homicides were down 38% and robberies 27%, compared in August on the matter. Perhaps half a dozen other states
with the same period in 2009. may see a constitutional amendment blocking Obamacare on
the ballot in November.
Arizona’s major cities all registered declines. A perceived rise
in crime is one reason often cited by proponents of a new law Critics have also filed various lawsuits challenging the
intended to crack down on illegal immigration. The number constitutionality of health reform. In the most prominent
of kidnappings reported in Phoenix, which hit 368 in 2008, nearly two dozen states, almost all led by Republicans, have
was also down, though police officials didn’t have exact banded together. Their chief legal argument is that the new
figures. individual mandate is unconstitutional. On May 14th the
National Federation of Independent Business, a trade group
The new crime figures confirm what I wrote in a column in today’s representing small companies (who worry especially about
Washington Times under the headline, “Unfounded fear of immigrant the costs of compliance with the new law), declared that it too
crime grips Arizona,” and what I explored in a longer think piece, would join in.
“Higher Immigration, Lower Crime,” in Commentary magazine a few
months ago. Repeal the bill.

The president and Congress need to fix our immigration system, but we
need to do it in the right way and for the right reasons.
FISCALLY CONSERVATIVE BLOG FEEDS

Collin Peterson’s Cognitive

FISCALLY CONSERVATIVE BLOG FEEDS
Dissonance [Cato at Liberty]
The Economist: “Efforts to MAY 25, 2010 12:18P.M.

Challenge Obamacare Are By Sallie James

Gaining Momentum” [Cato at House Agriculture Committee Chairman Collin Peterson (D, MN) is
conducting a series of hearings in rural America to tout his support for
Liberty“Efforts to Challenge big Ag listen to the people.

Obamacare Are Gaining In the third paragraph of page 14 of an unofficial transcript of the recent
hearings in Troy, Alabama, Mr. Peterson makes an excellent point about
Momentum”] the fundamental inability of lawmakers or Washington bureaucrats to
MAY 25, 2010 12:21P.M. decide which farm size is best. “We are not going to get into the business
of deciding how big a farm should be because that’s way beyond our
By Michael F. Cannon expertise.” Mr Peterson has made cutesy, self-deprecating remarks
before about how Washington isn’t smart enough to make farm
From a recent news item in The Economist: management decisions. I guess even incredibly powerful incumbents feel
some pressure from tea partiers to make cynical asides about
[M]illions of Americans…think that Barack Obama’s Washington.
health-insurance laws must be overturned…[P]olls
suggest that many Americans still dislike them… And yet. Here’s Mr. Peterson, in an interview with a upstate New York
newspaper, offering his two cents’ on how to reform (and I use that term
At the federal level Republican leaders in Congress have in the loosest possible sense) U.S. dairy policy:
jumped on every bit of negative news—for example, a recent
report from the Congressional Budget Office suggesting that When lawmakers map out a new safety net, it will have to
the reforms will cost more than originally forecast—as just include a supply management system to keep milk
cause for overturning them… production in check, Mr. Peterson said…

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Today’s Tabbloid PERSONAL NEWS FOR [email protected] 26 May 2010

Supply management could include measures to discourage relative silence. I’ve been meaning to hit the Texas situation harder, but
farms from expanding, as well as a program to spur more have been dealing with a much greater education threat to the country —
dairy exports. In the past, the government has tried buying truly national curriculum standards — as well as other big issues.
out farmers’ dairy herds, but production eventually recovered
and the beef industry suffered from the low prices resulting Which reminds me: If Ms. Frick is very concerned about having one set
from so many cows suddenly entering the slaughter market. of standards imposed on the entire nation, I invite her — and anyone else
— to a major debate we’ll be having at Cato on the same day that
“Production management will have to be in it,” Mr. Peterson proposed national standards are expected to be released to the public.
said… Register here to attend!

As part of the changes, Mr. Peterson said, he also expects So anyway, I have been relatively quiet on Texas. But not completely
Congress will add California to the federal milk marketing silent, and Ms. Frick could easily have found things that both I and
system, which sets the minimum prices farmers receive. others have written on the Lone Star social studies shootout just by
searching for “Texas” and ”social studies” on Cato’s website. That search
So farm size is beyond the federal government’s expertise, but brings up this, and this, and this. Oh, and we sent this statement to
“production management” for dairy farms is not? Make up your mind, media outlets, resulting in lots of radio interviews on the subject. How
Congressman. Ms. Frick missed all of these things, I do not know.

I also have concerns with the substance of Mr Peterson’s suggestions for What is especially strange about Ms. Frick’s post, though, is not that she
dairy policy. Just last weekend I attended a workshop in Toronto where a called Cato conservative (that’s all too common), or didn’t actually seem
graduate student from the University of Guelph gave an excellent to check if we’d done anything on this. What is especially strange — or
presentation on the recent problems in the Ontario quota exchange, the maybe just confused — is that she thinks people at Cato should be very
market on which quota rights to produce dairy products in Ontario, upset about the Texas situation because the content of textbooks for
Canada are traded. (The paper on which his analysis was based is not yet Texas is often the content other states get stuck with.
available.) Quota rights to, essentially, one cow trebled over recent years
to more than C$30, 000. That’s just for the right to milk the cow, mind For one thing, that Texas essentially dictates content for everyone else is
you. It doesn’t buy you the cow, or even the land or equipment or feed for an increasingly debatable point. More important for Frick’s piece,
the cow. Just the right to produce. As the student described the system, it though, is that she asserts that somehow Texas being a big,
sounded to me like the Canadian version of tulip mania, backed up by centralized market is clearly something that creation of the U.S. Senate
soviet-style supply management systems. Do we really want to introduce was supposed to mitigate, as well as the Constitution’s Supremacy
this sort of insanity to U.S. dairy markets, as if the current system wasn’t Clause:
ludicrous enough?
[I]t’s hard for me to think of really anything so antithetical to
the Founding principles than for one state to mandate radical
changes that all the other states are forced to swallow.
FISCALLY CONSERVATIVE BLOG FEEDS Indeed, avoiding such an outcome was in large part the
purpose of the Senate, not to mention the Supremacy Clause
Too Quiet on the Texas Front? of the Constitution — really, the scrapping of the Articles of
Confederation altogether.
[Cato at Liberty]
MAY 25, 2010 12:18P.M. What?

By Neal McCluskey First off, if you read Federalist no. 62, there is just no way to interpret
it as saying that the Senate will represent states so that an individual
Over at Matt Yglesias’ blog, Ali Frick wants to know why she hasn’t state’s policies won’t adversely affect other states. It simply discusses the
detected any “conservative outrage” over the great Texas textbook tangle. need to give representation to both states and people in the national
Strangely, though, she only critiques Cato by name. That’s odd government of the new republic.
because (a) Cato is a libertarian organization, not conservative, and (b)
there are many other libertarian — as well as truly conservative — think But that isn’t Frick’s biggest stretch. That is reserved for her application
tanks out there. of the Supremacy Clause, which reads:

Unfortunately, those things are just the beginning of the post’s odd This Constitution, and the Laws of the United States which
twists. shall be made in Pursuance thereof; and all Treaties made, or
which shall be made, under the Authority of the United
Before I get into the weirdness, though, let me cop to the charge of States, shall be the supreme Law of the Land; and the Judges

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Today’s Tabbloid PERSONAL NEWS FOR [email protected] 26 May 2010

in every State shall be bound thereby, any Thing in the FISCALLY CONSERVATIVE BLOG FEEDS
Constitution or Laws of any State to the Contrary
notwithstanding. Running for Congress [The Club
Once again, this says absolutely nothing about whether it is for Growth]
constitutional for a big state to adopt textbooks even if it affects the MAY 25, 2010 11:18A.M.
textbook choices of smaller states. The clause is entirely about the
supremacy of federal laws — when made to exert the specific, The FEC Check this out: 2010 # of Republicans running - 2,226 (+643) #
enumerated powers given to the federal government — over state laws. It of Democrats running - 1,569 (-61) 2008 # of Republicans running -
says diddly about state actions that simply have some impact on other 1,583 # of Democrats running - 1,630 HT: Mark Offenbach
states, especially when those actions have nothing to do with federal
powers.

All that said, libertarians do have good reason to be concerned about FISCALLY CONSERVATIVE BLOG FEEDS
what has transpired in Texas, as it illustrates brilliantly the conflict,
politicization, and academic dangers inherent to government schooling. Congress Slams FCC’s Internet
But that is an issue about which many of us at Cato have dealt at great
length. I invite Ms. Frick to read it all. Takeover [Americans for Tax
Reform]
MAY 25, 2010 11:04A.M.
FISCALLY CONSERVATIVE BLOG FEEDS
Remember when Free Press and others claimed Congress was
Go Ahead: Ask. Tell. [Cato at demanding that the Federal Communications Commission “do whatever
it takes” to enact Net Neutrality? If you thought that w...
Liberty]
MAY 25, 2010 11:52A.M.

By Christopher Preble FISCALLY CONSERVATIVE BLOG FEEDS

Reports that the Obama administration and Congress are nearing a deal The Most Powerful Privacy
to repeal the misguided “don’t ask, don’t tell” (DADT) policy is good
news for military effectiveness, and consistent with the highest ideals of Setting [Cato at Liberty]
our society. MAY 25, 2010 10:46A.M.

The repeal of DADT will ensure that the most qualified, most highly By Jim Harper
motivated individuals are able to join the military. It will halt the
discharge of highly trained men and women who have served their Amid the hullaballoo about Facebook and privacy, it’s easy to forget the
country honorably, and wish to continue to do so. most powerful privacy setting.

Earlier decisions to expand military service to qualified Americans, from In my 2004 Policy Analysis, “Understanding Privacy—and the Real
Harry Truman’s decision to end racial segregation in the military, to Threats to It,” I wrote about the “privacy-protecting decisions that
Gerald Ford’s opening of the service academies to women, were millions of consumers make in billions of daily actions, inactions,
unpopular within some quarters of American society at the time, but transactions, and refusals.”
wise on the merits. These and other policies aimed at ensuring the most
exacting standards in our military are now seen as instrumental to Inactions and refusals. Declining to engage in activities that emit
making it the finest in the world. personal information protects privacy. Not broadcasting oneself on
Facebook protects privacy. Not going online protects privacy.
President Obama and the leaders in Congress are to be commended for
this wise decision. The horror, some may think, of not having access to the wonders of the
online world. Actually, many people live full and complete lives without
it, enjoying the perfect online privacy default. The irony is a little too rich
when avid users of Facebook—which is little more than a publicity
tool—complain about its privacy problems.

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Today’s Tabbloid PERSONAL NEWS FOR [email protected] 26 May 2010

Facebook does have some work to do on rationalizing and FISCALLY CONSERVATIVE BLOG FEEDS
communicating the privacy protections its offers its publicity-seeking
users. But people will always have the privacy protecting option of not Key Vote Alert - “NO” on the
using Facebook.
DISCLOSE Act [The Club for
Not so for government-sponsored incursions on privacy, like the national
ID system proposed by Senator Chuck Schumer (D-NY). Inaction and Growth]
refusal of his national ID system would not be a practical option if MAY 25, 2010 10:05A.M.
Senator Schumer has his way. The irony isn’t just rich, it’s curdled and
reeking when Senator Schumer leads the attack on Facebook for its KEY VOTE ALERT vote. Our Congressional Scorecard for the 111th
privacy practices. Congress provides a comprehensive rating of how well or how poorly
each member of Congress supports pro-growth, free-market policies and
will be distributed to our members and to the public.

FISCALLY CONSERVATIVE BLOG FEEDS

‘Net Neutrality’ Only a Slogan FISCALLY CONSERVATIVE BLOG FEEDS

[Americans for Tax Reform] Brown, Collins, Johanns,

MAY 25, 2010 10:20A.M.
Murkowski, Snowe Side with
While Internet service providers are among the loudest opponents of Net
Neutrality, there are others who show important opposition. These less Unions, Declare War on
heard opponents, however, are just as influentia...
Volunteer Firefighters
[Americans for Tax Reform]
FISCALLY CONSERVATIVE BLOG FEEDS MAY 25, 2010 09:25A.M.

Michigan House, Senate Say No [PDF Document] Senate Majority Leader Harry Reid (D-Nev.) slipped an
amendment into the Senate Supplemental appropriations bill that will
to FCC Reclassification of force states to collectively bargain with public safety...

Broadband [Americans for Tax

Reform] FISCALLY CONSERVATIVE BLOG FEEDS
MAY 25, 2010 10:17A.M.
Maine Sens. Collins and Snowe
On May 14th, the Michigan House of Representatives passed a resolution
urging the FCC not to reclassify broadband Internet as a Title II telecom Side with Democrat Takeover of
service. Then, on Wednesday, the Michigan Stat...
Banks [Americans for Tax
Reform]
MAY 25, 2010 09:12A.M.

[PDF Document] Senator Dodd’s contentious financial regulation

legislation passed the Senate last week, 59-39 after getting essential
votes from Maine Republican Senators Olympia Snowe an...

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Today’s Tabbloid PERSONAL NEWS FOR [email protected] 26 May 2010

FISCALLY CONSERVATIVE BLOG FEEDS homeowner(s) can thus challenge the arbitrariness of the government’s
taking of their property.
Ground-Breaking Constitutional
Josh obviously hopes that some court will accept this novel strategy
Theories [Cato at Liberty] of borrowing equal protection jurisprudence to check rampant eminent
MAY 25, 2010 08:35A.M. domain abuse and vindicate property rights. Here you can download his
article, which is titled “Equal Protection from Eminent Domain:
By Ilya Shapiro Protecting the Home of Olech’s Class of One.” Coincidentally, two years
ago Roger Pilon wrote an essay on the Supreme Court’s most recent
As Larry Solum notes and Randy Barnett seconds, Georgetown law “class of one” decision, which you can read here.
professor and friend-of-Cato Nick Rosenkranz has just published a
tremendous article in the Stanford Law Review. I saw an earlier version
of it and can tell you that it offers one of those singular re-thinks of
accepted learning. As Randy puts it, “It is one of those rare pieces that FISCALLY CONSERVATIVE BLOG FEEDS
hits you between the eyes and causes you to reconsider how you think
about the Constitution.” The article, entitled “The Subjects of the Lying, Stealing, Earn California
Constitution,” argues that all of us are going about our constitutional
theorizing, at least with respect to judicial review, the wrong way. Here’s Lawmakers Prestigious Award
the first paragraph of the abstract:
[Americans for Tax Reform]
Two centuries after Marbury v. Madison, there remains a MAY 25, 2010 08:04A.M.
deep confusion about quite what a court is reviewing when it
engages in judicial review. Conventional wisdom has it that Yesterday the John F. Kennedy Library Foundation bestowed four
judicial review is the review of certain legal objects: statutes, California state legislators – Senator Dave Cogdill, Senate President Pro
regulations. But strictly speaking, this is not quite right. The Tem Darrell Steinberg, Assemblyman Mike Villines, and ...
Constitution prohibits not objects but actions. Judicial review
is the review of such actions. And actions require actors:
verbs require subjects. So before judicial review focuses on
verbs, let alone objects, it should begin at the beginning, with FISCALLY CONSERVATIVE BLOG FEEDS
subjects. Every constitutional inquiry should begin with a
basic question that has been almost universally overlooked. T Paw Sets the Bar High
The fundamental question, from which all else follows, is the
who question: who has violated the Constitution? [Americans for Tax Reform]
MAY 25, 2010 08:02A.M.
In thinking about who violated (or allegedly violated) the Constitution,
Rosenkranz contends, we get to a truer understanding of whether the In today’s Daily Caller, I have a piece on Gov. Tim Pawlenty’s recent
Constitution was violated, and how. Fascinating stuff, which you can budget victory in Minnesota and its implications for his probable 2012
download here – and the sequel, titled “The Objects of the Constitution,” presidential campaign. Pawlenty governs in the o...
is coming soon to a legal journal near you (perhaps for next summer’s
blockbuster law review article season). (Coincidentally, today the
Supreme Court unanimously ruled against Nick in his first
argument before the Court — a technical case regarding the award of
attorneys fees under Employee Retirement Income Security Act (ERISA)
— so we now know where his comparative advantage lies!)

And while I have you thinking about such high-fallutin’ theoretical

matters, let me also direct your attention to a new article by an up-and-
coming legal scholar, also a friend-of-Cato (and my sometime co-
author), Josh Blackman. Josh argues that the Supreme Court’s relatively
new “class of one” doctrine, by which a single person can present himself
as a class discriminated against in violation of the Equal Protection
Clause, should be used to challenge eminent domain abuse. That is,
homeowners can establish a class of one (i.e., the person whose home the
government takes) if their property is singled out for condemnation
while other similarly situated properties are not. The singled-out

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Today’s Tabbloid PERSONAL NEWS FOR [email protected] 26 May 2010

FISCALLY CONSERVATIVE BLOG FEEDS funding.

Government Meddling in Ohio’s Unfortunately, the FTA dropped the ball: the resulting report said
nothing about existing incentives and addressed only the question of
Health Insurance Market Drives whether new incentives could be created to encourage agencies to bring
their properties up to a state of good repair. While that is a laudable goal,
Up Costs [Americans for Tax it is an input, not an output.

Reform] According to historic data published by the American Public

MAY 24, 2010 06:42P.M. Transportation Association, the productivity of public transit — outputs
per unit of input — has declined dramatically since the federal
The Ohio Legislature may consider House Bill 453, which would government began funding transit in 1964. From 1964 through 2008, the
mandate additional regulations on health insurers that want to allow inflation-adjusted cost of operating transit increased by more than 360
their clients to substitute cheaper generic drugs for brand name p... percent, while transit ridership grew by a mere 24 percent and fares by
62 percent.

Ultimately, transit should be privatized, but in the meantime Congress or

FISCALLY CONSERVATIVE BLOG FEEDS the administration can adopt a race-to-the-top program similar to the
one the administration is using to improve education. Rogoff should
FTA Chief: Paint Is Cheaper direct his agency to rewrite its incentive report before Congress takes up
transportation again in 2011.
Than Trains [Cato at Liberty]
MAY 24, 2010 05:09P.M.

By Randal O’Toole FISCALLY CONSERVATIVE BLOG FEEDS

In March, Cato published my review of every rail transit system in The GOP: The Appropriations
America (as of 2008), showing that in nearly every case buses would
have been more cost-effective at moving people. This same view was Party? [The Club for Growth]
expressed last week by a surprising source: Peter Rogoff, the Obama MAY 24, 2010 05:08P.M.
administration’s appointee in charge of the Federal Transit
Administration (FTA). Here s well worth it.

Appropriately, Rogoff spoke before the Federal Reserve Bank of Boston,

whose transit system, he pointed out, is in a “grim” state. Nationwide, he
noted, America’s transit industry suffers from $78 billion worth of FISCALLY CONSERVATIVE BLOG FEEDS
deferred maintenance — most of which is due to rail transit lines that
cities cannot afford to keep in shape. Rogoff was disturbed that cities Monday Links [Cato at Liberty]
were asking for federal grants to build more rail lines when they can’t MAY 24, 2010 05:04P.M.
keep the existing trains in a state of good repair.
By Chris Moody
Rogoff says he has been telling transit managers, “if you can’t afford to
operate the system you have, why does it make sense for us to partner in • Julian Sanchez in Newsweek: Why Rand Paul is right…and wrong.
your expansion?” Cities that build “shiny new rails now . . . need to be
mindful of the costs they are teeing up for future generations.” • Debate: Is the war in Afghanistan winnable?

“Let’s start with honesty,” he said: “Paint is cheap, rails systems are • Four policies that can reduce illegal immigration.
extremely expensive.” He suggested that, instead of expensive trains,
many cities can attract just as many riders onto transit by painting buses • It’s time to stop using the BP oil spill to grind old political axes and
on specific routes in distinctive colors (as Boulder, CO has done). move the debate forward on energy policy.

Part of the problem, Rogoff knows, is that Congress has given cities • Podcast:”Avoiding the Skid of Greece” featuring Jeffrey A. Miron.
incentives to build high-cost transit projects. To address this issue, the
last transportation bill, in 2005, included a section requiring the Federal
Transit Administration to evaluate the incentives created by federal

10
Today’s Tabbloid PERSONAL NEWS FOR [email protected] 26 May 2010

FISCALLY CONSERVATIVE BLOG FEEDS authorization voting dates yet. Huh? Hello? Anybody home? Don’t they
know there’s a crisis?
ATR Urges Cuomo to Sign
As far as the credit markets are concerned, the short-term funding
Taxpayer Protection Pledge markets for bank-to-bank lending are still stressed with Libor and the
TED spread still widening. Not good. Banks are afraid. No one wants to
[Americans for Tax Reform] lend. Incidentally, Libor, for three-month loans in dollars recently rose
MAY 24, 2010 04:50P.M. above 0.5 percent for the first time since July 24th. I wouldn’t call that a
healthy signal.
[PDF Version] In a recorded address over the weekend, New York
Attorney General Andrew Cuomo promised hold the line on taxes should Look, I’m still convinced the Europeans need a big-blanket, bank debt
he be elected governor. Americans for Tax Reform urged Cuomo ... guarantee. That would buy them time to get through this chaos, and on
the way to much needed, alleged, welfare-state cost cutting. That said,
I’m not convinced Greece could even paint the Parthenon on time, let
alone afford the paint.
FISCALLY CONSERVATIVE BLOG FEEDS

Washington Certainly Isn’t

FISCALLY CONSERVATIVE BLOG FEEDS
Helping Matters [Larry
ATR Releases 2010 list of
Kudlow’s Money Politic$]
MAY 24, 2010 04:46P.M. Pledge Signers in Idaho
It’s been a rough ride for stocks since the recent April high. Last week’s [Americans for Tax Reform]
trading wasn’t pretty, and today’s 126-point drop late in the afternoon MAY 24, 2010 04:08P.M.
certainly didn’t help any. That said, at around $90 a share for the next
year, stocks are starting to look pretty cheap after this correction. Maybe [PDF Version] Today, Americans for Tax Reform released an updated list
it’s time to jump in, even with all this blood in the street. of incumbents and challengers in Idaho who have signed the Taxpayer
Protection Pledge. These candidates have made a ...
Maybe.

Leave it to Washington to make matters worse. We’ve got a big, fat tax
hike on private investment partnerships and foreign earnings of U.S. FISCALLY CONSERVATIVE BLOG FEEDS
companies staring at us right now. Thanks Washington. That will of
course ensure that we have less private investment. What a neat idea. Grenades and Paramilitary
Let’s be clear about the consequences of tax hikes: They are nothing but Policing [Cato at Liberty]
a negative for future growth. Never forget: Growth is the key. MAY 24, 2010 03:30P.M.

The best social policy we can develop is a capital formation spur that will By Tim Lynch
supply jobs to those that need them. For dignity, to raise the human
spirit, and to help folks produce and spend. All of these left-wing, anti-
growth, “spread the wealth” attacks on opportunity and economic
freedom are Europeanization—something we must devoutly avoid.

One plus I am highlighting right now is the greenback. King Dollar’s rise
means a lower energy tax cut. This is a very good thing for American
consumers and retailers. It’s also good for industrials, manufacturing
and transports. And don’t forget about lower mortgage rates.

Across the pond, this whole Greece and European debt crisis mess
remains largely unresolved. Fear is still out there. And while Germany’s
parliament voted “yes” to the trillion-dollar rescue package, France won’t Aiyana Stanley-Jones, seven years old, was shot during a police raid on
vote until May 31st. Heck, Italy and Spain haven’t even set parliamentary

11
Today’s Tabbloid PERSONAL NEWS FOR [email protected] 26 May 2010

her home in Detroit. pursue his fight.

The police threw a grenade through a window and then entered as they
sought a murder suspect. Paramilitary weapons and tactics too often lead
to unncessary deaths and injuries. Rep. John Conyers wrote a letter to FISCALLY CONSERVATIVE BLOG FEEDS
the Attorney General, asking him to monitor the case. In that letter,
Conyers cites the Cato work, Overkill. That’s a start, but Conyers should On Tonight’s Kudlow Report
go to work in the Congress and stop the Pentagon practice of selling
surplus military equipment to local police departments. More here [Larry Kudlow’s Money
[pdf].
Politic$]
MAY 24, 2010 01:44P.M.

FISCALLY CONSERVATIVE BLOG FEEDS

Charles Murray in Slovakia

[Cato at Liberty]
MAY 24, 2010 03:07P.M.

By Ian Vasquez

Cato co-sponsored a successful conference in Bratislava, Slovakia last

week with Trend business magazine, “Slovakia at the Crossroads of
Reform.” At a time when the crisis in the eurozone is exposing the Tonight at 7pm ET:
unsustainable nature of the European welfare state — and one month
before general elections in the country — the event brought together WHILE EVERYONE’S WORRYING ABOUT THE EURO,
international experts and political and opinion leaders from a broad GREECE AND SPAIN, WILL IT BE CHINA THAT BRINGS OUR
ideological spectrum, including from the newly formed classical liberal STOCK MARKET DOWN?
party, Freedom and Solidarity, which is now polling at 10-11 percent.
Here’s a video of Charles Murray’s timely keynote address on “Freedom
in the 21st Century.”
- John Rutledge, Fmr. Reagan Economic Advisor; Claremont Graduate
Univ. Sr. Research Prof; Safanad Chief Investment Strategist
- Peter Navarro,”The Coming China Wars” Author; University Of
FISCALLY CONSERVATIVE BLOG FEEDS California - Irvine Business Professor

$288/Month for an Upper East - Peter Morici; University of Maryland Robert H. Smith School of
Business Professor; U.S. International Trade Commission Fmr. Chief

Side Studio [Cato at Liberty] Economist

MAY 24, 2010 02:50P.M. CONGRESS’S CARRIED INTEREST TAX FOLLY?

- John Rutledge, Fmr. Reagan Economic Advisor; Claremont Graduate
By Walter Olson Univ. Sr. Research Prof; Safanad Chief Investment Strategist
- Robert Reich, Fmr. Labor Secretary; Author, “Supercapitalism”; CNBC
“Rent Control Is a Vanishing New York Treasure,” proclaims the Contributor; Univ. of CA., Berkeley, Prof. of Public Policy
headline over a New York Times story. Like Josh Blackman, I think
“treasure” isn’t the right word here: “anachronism“, “disgrace” and OBAMA IMPOUNDING THE BUDGET - SHOULD STOCKS
“abject policy calamity” are more like it. CHEER?
- Jim Nussle, CNBC Contributor; The Nussle Group; Fmr OMB Director;
P.S. The Times article sympathetically depicts a Gotham tenant who Former Rep.(R) Iowa; Fmr. House Budget Cmte. Chmn.
pays the legally dictated rent of $288 to live in one of the nation’s most - Alison Fraser, Heritage Foundation Federal Spending Analyst
desirable neighborhoods. You guessed it: he feels put upon in that
situation, believes his landlord should be doing much more to spruce up BP & THE CRISIS ON THE COAST: ‘TOP KILL’ OPERATION
the place, and has teamed up with Manhattan State Sen. Liz Krueger to NBC’s Jay Gray reports.

12
Today’s Tabbloid PERSONAL NEWS FOR [email protected] 26 May 2010

FISCALLY CONSERVATIVE BLOG FEEDS

BP OUT OF CONTROL... IS BP HURTING US IN TWO GULFS?
ARE THEY HELPING IRAN FUND NUKES? Cato’s Amicus Brief Helps
CNBC’s Hampton Pearson reports. School Choice Get to the Court;
- Frank Gaffney , Center for Security Policy President; Former Asst Secy Congrats, IJ! [Cato at Liberty]
of Defense for International Security Policy Under Reagan MAY 24, 2010 12:20P.M.

Please join us. The Kudlow Report. 7pm ET. CNBC. By Ilya Shapiro

As Andrew Coulson noted, the Supreme Court has agreed to hear

Arizona Christian School Tuition Organization v. Winn, the education
FISCALLY CONSERVATIVE BLOG FEEDS tax credit case whose cert petition Cato supported with an amicus brief.
So we didn’t get the summary reversal we optimistically hoped for but
Support for Repealing I’m confident that this means only that the Ninth Circuit’s reversal will
have to wait 8-10 months. Congratulations to Tim Keller, Dick Komer,
ObamaCare Hits 63 Percent and our friends at the Institute for Justice, which successfully litigated
the Zelman v. Simmons-Harris case that is the pro-school choice
[Cato at Liberty] precedent the Ninth Circuit so blithely ignored here.
MAY 24, 2010 12:50P.M.
I should note that ours was one of only three amicus briefs filed in this
By Michael F. Cannon case, and studies have shown that the first few such briefs increase
chances of Supreme Court review significantly (having more than about
The polling firm Rasmussen Reports reports: three seems to be redundant). Which isn’t to say that we take credit for
the successful strategy that IJ and its co-counsel are pursuing — indeed,
Support for repeal of the new national health care plan has as is good appellate practice, we coordinated with IJ so our brief would
jumped to its highest level ever. A new Rasmussen Reports offer the Court some arguments and nuance for which the parties’ briefs
national telephone survey finds that 63% of U.S. voters now didn’t have space — but it is gratifying to see the Court impliedly see the
favor repeal of the plan passed by congressional Democrats validity of our position. We will of course be filing again at the merits
and signed into law by President Obama in March. stage, which briefs won’t be due for a few months. The Court will likely
hear the case in late fall, so we should expect a final decision in winter
Prior to today, weekly polling had shown support for repeal 2011.
ranging from 54% to 58%.
For all the filings in the case, see its SCOTUSwiki page or its Supreme
Currently, just 32% oppose repeal. Court docket page. I blogged about the case here and here and George
Will wrote about it last week. Andrew also blogged the original Ninth
The new findings include 46% who Strongly Favor Circuit decision here.
repeal of the health care bill and 25% who Strongly
Oppose it.

Repeal the bill.

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Today’s Tabbloid PERSONAL NEWS FOR [email protected] 26 May 2010

FISCALLY CONSERVATIVE BLOG FEEDS The Maryland wiretapping law is itching for an update. It’s time for the
Maryland code to stop acting as a barrier to transparency in law
Police Accountability in enforcement operations.

Maryland [Cato at Liberty]

MAY 24, 2010 12:20P.M.
FISCALLY CONSERVATIVE BLOG FEEDS
By David Rittgers
Even the UN Opposes Taxing
Several people videotaped the arrest of a belligerent woman at the
Preakness Stakes and posted it online. The woman assaulted another the Internet [Americans for Tax
patron of the race and two officers during her well-deserved arrest.
Reform]
The criminalization of citizens’ recordings of the arrest, which MAY 24, 2010 11:55A.M.
culminates in the woman lying face down and bleeding, is a different
matter. As hard as the FCC has attempted to tax Internet activity, the delegates
to the World Health Organization’s annual World Health Assembly
Toward the end of the video, posted on YouTube (warning: violence and sharply repudiated the potential for a “bit&rdqu..;.
language), a police officer approaches the person filming the arrest and
says, “Do me a favor and turn that off. It’s illegal to videotape anybody’s
voice or anything else, against the law in the state of Maryland.”
FISCALLY CONSERVATIVE BLOG FEEDS
Unfortunately, the officer was right.
What Bob Bennett Can Learn
The Maryland wiretapping law makes it illegal to record a conversation
without the consent of all parties involved. The Preakness incident from the Tea Parties [The Club
sparked a debate about the wisdom of a law that makes it illegal to
provide public accountability of police actions. for Growth]
MAY 24, 2010 11:42A.M.
This is the latest in a rash of incidents where Maryland police were
recorded while using force or making arrests. While the Maryland law Lame-duck Senator Bob Bennett penned an op-ed in the Washington
makes an exception for police to record their encounters with citizens, Post, They were wrong then, and Bennett is still wrong today.
Maryland law enforcement officers will arrest and indict anyone who
records their encounter with the police.

Case in point: Anthony Graber was riding his motorcycle and recording FISCALLY CONSERVATIVE BLOG FEEDS
the experience with a helmet-mounted camera. He was riding recklessly
and beyond the speed limit, which warranted a citation, but not his 63% Support Repeal of
detention by a Maryland State Police officer at gunpoint and the trooper
not first identifying himself as an officer of the law. The first few seconds ObamaCare [The Club for
of the encounter look like a carjacking, not enforcement of traffic laws.
Graber posted his interaction with law enforcement officers on YouTube Growth]
and was arrested for it. He now faces felony charges under the MAY 24, 2010 11:05A.M.
wiretapping statute, and prosecutors sought $15,000 bond for a crime
that carries a maximum $10,000 fine. The judge reportedly questioned From Rasmussen Reports [emphasis mine]: Support for repeal of the
the charges at the bond hearing. Graber goes to trial on June 1st. new national health care plan has jumped to its highest level ever. A new
Rasmussen Reports national telephone survey finds that 63% of U.S.
This is a questionable policy in the same state where excessive use of voters now favor repeal of the plan passed by congressional Democrats
force against a University of Maryland student resulted in discipline and and signed into law by President Obama in March.
possible criminal charges for three Prince George’s County officers. The
same jurisdiction knew that Berwyn Heights Mayor Cheye Calvo may
have had nothing to do with a drug trafficking ring, but raided his home
at gunpoint anyway, terrorized his family, and shot his dogs. The result
of the raid was that there was no wrongdoing by Calvo and his family.

14
Today’s Tabbloid PERSONAL NEWS FOR [email protected] 26 May 2010

FISCALLY CONSERVATIVE BLOG FEEDS Repeal the bill.

Supreme Court Will Hear

Appeal of School Choice Case FISCALLY CONSERVATIVE BLOG FEEDS

[Cato at Liberty] ObamaCare’s Price Controls

MAY 24, 2010 10:22A.M.
Threaten HSAs [Cato at Liberty]
By Andrew J. Coulson MAY 24, 2010 09:55A.M.

The SCOTUS Blog reports this morning that the United States Supreme By Michael F. Cannon
Court has agreed to hear an appeal of the Ninth Circuit’s ruling in the
Arizona k-12 scholarship tax credit case. This is great news, and paves John Goodman is correct that ObamaCare’s individual mandate — and
the way for the Court to ultimately overturn the 9th Circuit’s credulity- Kathleen Sebelius’s power to make the mandate more burdensome at
straining legal misadventure. whim — threaten the continued existence of health savings accounts
(HSAs). But ObamaCare’s price controls are no less a threat.
For the details, see the Cato brief in this case, which was joined by the
American Federation for Children and Foundation for Educational The new law requires insurers to charge enrollees of the same age the
Choice. same average premium, regardless of health status. That’s a price
control, and it will cause premiums for healthy people to rise
dramatically and thus lead to massive adverse selection. Healthy people
will gravitate to less-comprehensive insurance — in particular, HSA-
FISCALLY CONSERVATIVE BLOG FEEDS compatible high-deductible plans — where the implicit tax is smaller.

ObamaCare, Social Democracy As premiums for comprehensive plans spiral upward (ultimately causing
comprehensive plans to disappear) and as ObamaCare proves more
& Socialism [Cato at Liberty] costly than projected, supporters will be desperate for new revenue. They
MAY 24, 2010 10:21A.M. will call for the elimination of both HSAs and high-deductible health
plans on the grounds that those products — not the price controls, mind
By Michael F. Cannon you — are causing the market to unravel.

The following excerpt from Jeffrey Friedman’s article in the HSAs allow young and healthy consumers to avoid the raw deal that
January/February 2010 issue of Cato Policy Report, though about the ObamaCare offers them. And that’s precisely why ObamaCare’s
financial industry rather than health care reform, captures why so many supporters will try to kill HSAs. We will end up repealing one or the
critics of ObamaCare are comfortable describing it as socialism: other.

What I am calling social democracy is, in its form, very

different from socialism. Under social democracy, laws and
regulations are issued piecemeal, as flexible responses to the
side effects of progress — social and economic problems — as
they arise, one by one…. The case-by-case approach is
supposed to be the height of pragmatism. But in substance,
there is a striking similarity between social
democracy and the most utopian socialism. Whether
through piecemeal regulation or central planning, both
systems share the conceit that modern societies are so legible
that the causes of their problems yield easily to inspection.
Social democracy rests on the premise that when something
goes wrong, somebody — whether the voter, the legislator, or
the specialist regulator — will know what to do about it. This
is less ambitious than the premise that central planners will
know what to do about everything all at once, but it is no
different in principle.

15
Today’s Tabbloid PERSONAL NEWS FOR [email protected] 26 May 2010

FISCALLY CONSERVATIVE BLOG FEEDS 4. If an alien who is unlawfully in the United States is convicted of
violating any state or local law [including the new “trespassing by
Bad Campaign Advice from Ed illegal aliens”], the alien “shall be transferred immediately [on
discharge from imprisonment or assessment of fine for the
Rendell [The Club for Growth] offense] to the custody of the [federal immigration authorities];”
MAY 24, 2010 09:45A.M.
5. A police officer “may lawfully stop any person who is operating a
From the Wall Street Journal: Here S COMMITTEE. 202-955-5500. motor vehicle of the officer has reasonable suspicion to believe the
person is in violation of any civil traffic law and [the the pre-
existing law against human smuggling];”

FISCALLY CONSERVATIVE BLOG FEEDS 6. Makes it illegal to stop to hire or pick up passengers for work if the
vehicle “blocks or impedes the normal movement of traffic;”
A Legal Analysis of the New
7. Makes it illegal for an illegal alien to knowingly apply for work,
Arizona Immigration Law [Cato solicit work in a public place, or perform work as an employee or
independent contractor;
at Liberty]
MAY 24, 2010 07:48A.M. 8. Makes it illegal for anyone violating the law (including the new
illegal hiring law, as well as pre-existing prohibitions on hiring
By Ilya Shapiro illegal aliens) to transport, move, conceal, or harbor persons who
the alleged violator knows to be illegally in the United States, as
I’m a bit late to the immigration party — in part because well as to encourage or induce aliens to come to Arizona illegally;
I’ve been traveling on my Obamacare debate tour and in part because the
Kagan Supreme Court nomination and end-of-term Supreme Court 9. Provides an entrapment defense to the pre-existing crime of
decisions have sucked away all my time. Still, I do have a few things to employing illegal aliens (whether knowingly or intentionally); and
add beyond Dan Griswold’s excellent points about what real immigration
reform would look like and why Arizona’s new law, love it or hate it, at 10.Authorizes the immobilization or impoundment of vehicles used to
least has the benefit of raising the need for such fundamental reform into committ various vehicle-related offenses relating to illegal aliens.
the national political discussion. (Jeffrey Miron also offers some sensible
suggestions, and Roger Pilon points out that doing nothing is simply not None of these provisions, on their face, appear to be unconstitutional, in
tenable as a matter of policy or politics.) the sense of Arizona intruding on federal authority over immigration
policy. Indeed, as reported last week by the Washington Post, this
First, the Arizona law — which I’ve actually read, unlike the attorney conclusion is backed by a 2002 memo from the Office of Legal Counsel
general and the secretary of homeland security – is carefully crafted so as — the Department of Justice unit that acts as the executive branch’s
not to go beyond the scope of federal law and so, as Dan alludes in his “outside counsel.” This memo concludes: first, that states have “inherent
thoughtful podcast (drawing on discussions with Roger), is probably power” to make arrests for violating federal law and, second, ”federal
constitutional. Here are the key things it does: statutes should be presumed not to preempt this arrest authority.” OLC
memos are not law themselves but they are the DOJ’s official position
1. Creates the new state crime of “trespassing by illegal aliens,” which on various legal issue. Having said that, an OLC memo can at any time
essentially consists of being in the state in violation of federal be withdrawn or replaced — as indeed the 2002 memo replaced an
immigration laws as determined by an officer or agency authorized earlier 1996 memo on the subject (or, more famously, Jack Goldsmith
by the federal government to verify immigration status; withdrew the so-called “torture memos”). And, of course, Congress could
pass a law saying states shall not enforce federal immigration laws.
2. Sets out that no official or agency of the state or its political
subdivisions (county, city, etc.) ”may adopt a policy that limits the Second, notwithstanding the new law’s facial constitutionality, state or
enforcement of federal laws to less than the full extent permitted by local law enforcement officials could use it to behave in a way that
federal law;” intrudes on federal prerogatives or violates constitutionally protected
individual rights. That circumstance could give rise to an “as-applied”
3. State (and local) law enforcement officials shall make a “reasonable legal challenge. If police officers stop Hispanic motorists on pretextual
attempt . . . when practicable, to determine the immigration status” grounds just to ask for their papers, for example, that would constitute a
of any person with whom they have made “lawful contact . . . where Fourth Amendment violation. Notably, however, the sections relating
reasonable suspicion exists that the [detained] person is an alien to state enforcement of federal immigration laws contains a provision
who is unlawfully present in the United States;” specifying: “This section shall be implemented in a manner consistent
with federal laws regulating immigration, protecting the civil rights of all

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Today’s Tabbloid PERSONAL NEWS FOR [email protected] 26 May 2010

persons and respecting the privileges and immunities of United States

citizens.”

Third, just because the law is constitutional doesn’t necessarily mean it’s
good policy (just like not everything that some people say is good policy
— like Obamacare, or torture during interrogations – is necessarily
constitutional). There are many arguments against the Arizona law
unrelated to civil liberties or racial profiling concerns, including that it
misdirects state and local resources away from more pressing priorities
(such as violent crime); that it’s driven by misguided fears of crime
(when crime has actually been dropping in Arizona, and nationally the
foreign-born commit crimes at lesser rates than the native-born); and
that an “enforcement-first” mentality gets things backwards in that we
should first reform and expand the ways people can come here legally
and then take action against those who still come illegally. Similarly,
there are many arguments in favor of the Arizona law not based in
racism, or political opportunism, or misapplied economics.

Fourth, the boycotts of Arizona adopted by city councils around the

country — at last count, Berkeley, Boston, El Paso, Los Angeles, Oakland,
San Francisco, St. Paul, and West Hollywood have all passed resolutions
restricting official travel, investment, and/or contracts with the Grand
Canyon State – are likely themselves unconstitutional. That is, unlike
private individuals, organizations, and businesses, states (and their
political subdivisions) cannot erect barriers to trade against other states.
Preventing such interstate discrimination was, of course, one of the
original purposes of the Constitution and, specifically, its Commerce
Clause (which grants Congress the power to regulate interstate
commerce). We often discuss the Commerce Clause in terms of Congress
incorrectly invoking it to justify legislation not having anything to do
with either commerce or interstate activities — such as, again, the
individual health care mandate — but just the same it protects economic
liberty by forestalling trade wars. (Technically, the issue here is the
“dormant” Commerce Clause in that cities are intruding on the boycott-
less regime Congress has established by not passing boycott laws.) Lo
and behold, Gary Pierce of the Arizona Corporation Commission sent a
letter to L.A. Mayor Antonio Villaraigosa threatening to cut-off the 25
percent of its electricity that the City of Angels gets from its eastern
neighbor. “I am confident that Arizona’s utilities would be happy to take
those electrons off your hands,” the commissioner says. Stopping this
sort of tit-for-tat silliness — along with being able to better muster
national armies — is why we got rid of the Articles of Confederation.

In short, the Arizona immigration law presents a tremendously complex

issue, as the Arizona Republic has recognized, that does not lend itself to
easy calls or soundbites. I myself am not certain how I would have voted
if I didn’t have the third option (as Arizona doesn’t) of imminent federal
reform — to the disconsolation of state legislators around the country
who have asked me what they can do to placate a
(legitimately) aggrieved public besides enactiong Arizona-style laws.

President Obama and Congress, pass comprehensive immigration

reform now!

17