The Heritage Insider: The stakes in the religious liberty cases, FOIA isn't what it used to be, work weeks down under ObamaCare, and more
Updated daily, InsiderOnline (insideronline.org) is a compilation of publication abstracts, how-to essays, events, news, and analysis from around the conservative movement. The current edition of The INSIDER quarterly magazine is also on the site.
March 22, 2014
Latest Studies: 48 new items, including a James Madison Institute report on Florida’s alternatives to Medicaid expansion, and a National Center for Policy Analysis report on the benefits of a warmer world
Notes on the Week: The stakes in the religious liberty cases, FOIA isn’t what it used to be, work weeks down since ObamaCare started, and more
To Do: Share ideas with 500 of your best allies in New Orleans
Budget & Taxation
• Comparing the Debt Burdens of Ontario and California – Fraser Institute
• Camp Bill Keeps Debate Going, but Bank Tax Embeds “Too Big to Fail” – The Heritage Foundation
• The Shortfalls of Oklahoma’s Defined Benefit Public Pension Plans – State Budget Solutions
Crime, Justice & the Law
• Kids Doing Time for What’s Not a Crime: The Over-Incarceration of Status Offenders – Texas Public Policy Foundation
Economic Growth
• Economic Freedom of the States of India 2013 – Cato Institute
• After the Third Plenum: Economic Reform Revival Moves Toward Implementation – Hoover Institution
Education
• The Value of Parental Choice in Education: A Look at the Research – The Heritage Foundation
• Trapped in Illinois’ Worst Schools: Education Outcomes in Illinois’ Lowest-Performing Public Schools – Illinois Policy Institute
• A Profile in Runaway Debt: Frisco ISD’s $775 Million Bond Proposal – Texas Public Policy Foundation
Foreign Policy/International Affairs
• Taiwan’s Maritime Security: A Critical American Interest – The Heritage Foundation
• Ukraine, NATO, Trade, and Afghanistan Should Dominate Obama’s Visit to Europe – The Heritage Foundation
• From Generation to Generation: Advancing Cross-Strait Relations – Hoover Institution
• How Strong Is Xi Jinping? – Hoover Institution
• Mao’s Shadow – Hoover Institution
• The Hitler Model – Hoover Institution
• Xi Jinping’s Inner Circle (Part 1: The Shaanxi Gang) – Hoover Institution
• Islamist Responses to the “End of Islamism” – Hudson Institute
Health Care
• The Impact of the Affordable Care Act on the Health Care Workforce – The Heritage Foundation
• Alternatives to Expanding Florida’s Medicaid Program – James Madison Institute
• Framing Medicare Reform – National Center for Policy Analysis
Information Technology
• Important Work to Be Done Before the U.S. Relinquishes Stewardship of ICANN – The Heritage Foundation
• Current Television Law and Programming Agreements – Mercatus Center
• Innovations in Mobile Broadband Pricing – Mercatus Center
International Trade/Finance
• The Obama Administration’s Trade Agenda Is Crumbling – Cato Institute
Monetary Policy/Financial Regulation
• Senator Warren Gets Taken In by a False Analysis – American Enterprise Institute
• The Economic Consequences of a Lower Canadian Dollar – Fraser Institute
• Clumsy Regulation Puts Insurance at Risk – The Heritage Foundation
• Revealing Fannie Mae and Freddie Mac’s Budget Costs: A Step Toward GSE Elimination – The Heritage Foundation
National Security
• 12 Issues for Congress in the 2015 National Defense Authorization Act – The Heritage Foundation
• U.S. Missile Defense Policy After Russia’s Actions in Ukraine – The Heritage Foundation
• Chinese Views and Commentary on the East China Sea Air Defense Identification Zone – Hoover Institution
• Rearranging the Deck Chairs on the Liaoning? The PLA Once Again Considers Reorganization – Hoover Institution
• Nigerian al-Qaedaism – Hudson Institute
• The Dawn of the Islamic State of Iraq and ash-Sham – Hudson Institute
Natural Resources, Energy, Environment, & Science
• Fukushima: Three Years Later – Hoover Institution
• The Growing Benefits of a Warmer World – National Center for Policy Analysis
Regulation & Deregulation
• Proposed FDA Generic Drug Regulation: Higher Prices, No Public Health Benefit – American Enterprise Institute
• Prohibitionist Policies and Black Markets – Libertas Institute of Utah
• How “Expert” Are the Expert Agencies? – Mercatus Center
• Regulatory Reform in Florida: An Opportunity for Greater Competitiveness and Economic Efficiency – Mercatus Center
The Constitution/Civil Liberties
• Tempest at a Tea Party – American Enterprise Institute
• “Disparate Impact” and Section 2 of the Voting Rights Act – The Heritage Foundation
• California Snubs Free Trade – Hoover Institution
• Keystone Courts – Hoover Institution
• Nullification: How it Should and Shouldn’t Be Used – Libertas Institute of Utah
• Reclaiming Liberty: How States Can Revive the 10th Amendment and Save the Constitution – Texas Public Policy Foundation
Transportation/Infrastructure
• Review of the Panama City Metro Project – Cato Institute
Welfare
• Do Federal Social Programs Work? – The Heritage Foundation
Notes on the Week
Sunshine Week: The Freedom of Information Act isn’t what it used to be. This week is Sunshine Week, so it’s time to point out that changing laws outside the politically accountable method of passing a new law—i.e., the set-up created by the Constitution—is the opposite of transparency. You may have heard that the Obama administration has unilaterally changed ObamaCare a couple dozen times already. Did you know that the Obama administration has rewritten the Freedom of Information Act on its own discretion, too?
Let’s run that back: The Obama administration has done an end-run around democracy in order to rewrite a law passed by Congress to make sure citizens know what their government is doing so that citizens can hold their government accountable via the democratic process. Mark Tapscott reports the details:
The rewrite came in an April 15, 2009, memo from then-White House Counsel Greg Craig instructing the executive branch to let White House officials review any documents sought by FOIA requestors that involved “White House equities.”
That phrase is nowhere to be found in the FOIA, yet the Obama White House effectively amended the law to create a new exception to justify keeping public documents locked away from the public. […]
The Greg memo is described in detail in a new study made public today by Cause of Action, a Washington-based nonprofit watchdog group that monitors government transparency and accountability. […]
The equities exception is breathtaking in its breadth. As the Greg memo put it, any document request is covered, including “congressional committee requests, GAO requests, judicial subpoenas and FOIA requests.” [Washington Examiner, March 18]
Another term for the “changing the law by executive fiat” would be “breaking the law.”
Stanford contemplates taxing conservative views. Stanford is the latest institution of higher education to confirm William F. Buckley’s observation: “Liberals claim to want to give a hearing to other views, but then are shocked and offended to discover that there are other views.” Mike Gonzalez reports:
The [Graduate Student Council] last week voted to deny funding for an event organized by the Stanford Anscombe Society, a group that believes that sexual relations should be only within marriage, which they define as being between a man and a woman. The university itself told the Anscombe Society it could find the money elsewhere (how generous), after students raised objections that labeled the society’s work “hate speech.”
So the Anscombe Society raised the money themselves from other sources and when they found the money this week, the university upped the ante, saying they’d have to pay an extra $5,600 for “security”—ten security personnel at a conference with an expected attendance of 120. The security was only deemed necessary after students at Stanford argued they felt threatened by the idea of the conference. […]
According to the minutes [of the GSC debate], a student named Addy reminded GSC that in the past it had “sponsored events with keynotes speakers being dictators, convicted rapists[.]” [National Review, March 19]
On Thursday, Stanford changed its mind. Ken McIntyre reports that Nanci Howe, Stanford’s associate dean of students, informed the Anscombe Society by email that funds had been found to cover the full costs of security. [The Foundry, March 20]
Recently, Jonah Goldberg also reviewed the Left’s curious habit of promoting diversity by demanding conformity, noting some choice quotes.
One student from Swarthmore said: “What really bothered me is, the whole idea is that at a liberal arts college, we need to be hearing a diversity of opinion. I don’t think we should be tolerating [Robert George’s] conservative views because that dominant culture embeds these deep inequalities in our society.”
And a student from Harvard stated: “If our university community opposes racism, sexism and heterosexism, why should we put up with research that counters our goals simply in the name of ‘academic freedom’? When an academic community observes research promoting or justifying oppression, it should ensure that this research does not continue.” [Townhall.com, February 21]
When may state attorneys general decline to defend their states’ laws?
Any fan of Boston Legal, JAG, or Perry Mason would react with disgust if their favorite legal defender stood up in the courtroom and declared: “Your honor, my client is guilty. I refuse to defend her. In fact, I think she’s so indefensible, I’m joining the prosecution.”
At least the client in a legal drama would have recourse to another attorney—one faithful to his legal oath to defend his client whether innocent or guilty.
Virginia and the six other states whose attorneys general have refused to defend their marriage laws do not have this privilege. So explained Ken Cuccinelli, Former Attorney General of Virginia, and two other legal experts at a panel discussion at The Heritage Foundation last week.
A state attorney general’s duty is to represent his client—his state—against challenges to its constitution and law. Can a state attorney general ever decline to defend a state law against constitutional challenge? The answer is yes, but there is a narrow, clear, and historically consistent standard for determining when that is permissible. The law must be “blatantly unconstitutional”—unconstitutional “as a matter of objective law.” In other words, an AG’s personal opinion concerning the law is irrelevant.
Although present Virginia Attorney General Mark Herring claimed a constitutional basis for his recent refusal to defend Virginia’s marriage amendment, his adherence to this established legal standard is questionable. Herring voted for the 2006 Virginia Marriage Amendment, which 57 percent of Virginians ratified. Yet, weeks into his tenure as attorney general, he compared Virginia’s democratically passed constitutional amendment to laws banning integrated schools and interracial marriage. His action, he promised, would put Virginia “on the right side of history” and the “law.”
But to what “law” did AG Herring refer? The Supreme Court’s Windsor v. United States decision struck down part of the federal Defense of Marriage Amendment (DOMA). But, this is far from a constitutional justification to strike down state marriage laws, as Carrie Severinoof the Judicial Crisis Network pointed out. The majority in Windsor upheld the state’s central role in writing marriage laws and explicitly limited the decision to “valid state marriages.” Thus, the Supreme Court struck down DOMA as an infringement on the state right to pass laws defining marriage—laws such as the Virginia amendment AG Herring claims is unconstitutional.
By failing to defend the law, Herring failed to do his job. As long as non-frivolous arguments exist, the code of legal ethics binds a lawyer to advance them in his client’s defense. Similarly, a state attorney general has the duty to defend any reasonable argument in defense of state law. Personal opposition to the law does not relieve him of that duty.
Herring not only refused to defend Virginia law, but he joined the opposition. On the same day he turned on his client and declared the Virginia amendment unconstitutional, he switched teams, aligning himself with a suit filed by two same-sex couples against the state of Virginia.
No one is challenging the attorney general’s freedom to change his mind—or to serve his political ambition—but supporters of same-sex marriage should think twice before they overturn the ethical boundaries on attorneys general discretion. Undermining the rule-of-law harms everyone because it sets a treacherous precedent. Every victim suffers when the advocate of justice can leave his client defenseless and turn and testify for the prosecution. [By Jenna Adamson]
Why does an evil person like Frank Underwood thrive in Congress? EconPop examines the television show House of Cards to explain why we shouldn’t expect the legislative process to lead to the public good:
The New York Times v. the minimum wage: The New York Times used to be in favor of helping the poor. This editorial is from January 14, 1987:
Raising the minimum wage by a substantial amount would price working poor people out of the job market. A far better way to help them would be to subsidize their wages or – better yet – help them acquire the skills needed to earn more on their own.
An increase in the minimum wage to, say, $4.35 would restore the purchasing power of bottom-tier wages. It would also permit a minimum-wage breadwinner to earn almost enough to keep a family of three above the official poverty line. There are catches, however. It would increase employers’ incentives to evade the law, expanding the underground economy. More important, it would increase unemployment: Raise the legal minimum price of labor above the productivity of the least skilled workers and fewer will be hired.
If a higher minimum means fewer jobs, why does it remain on the agenda of some liberals? A higher minimum would undoubtedly raise the living standard of the majority of low-wage workers who could keep their jobs. That gain, it is argued, would justify the sacrifice of the minority who became unemployable. The argument isn’t convincing. Those at greatest risk from a higher minimum would be young, poor workers, who already face formidable barriers to getting and keeping jobs. Indeed, President Reagan has proposed a lower minimum wage just to improve their chances of finding work. [New York Times, January 14, 1987]
Video of the Week: What’s at stake in the HHS mandate cases: Next Tuesday, the Supreme Court will hear two cases that ask the question: Can the government force employers to pay for insurance that covers contraception and abortion-inducing drugs, even when the employer has a religious objection to doing so? The plaintiffs are two small companies, Hobby Lobby and Conestoga Wood Specialties, who sued the Department of Health and Human Services after it issued such a mandate as part of its implementing rules under ObamaCare. Ninety-four similar lawsuits are still working their way through the lower courts, and the 300 plaintiffs represented in those cases will be watching the Supreme Court closely. Here is a profile of one of those plaintiffs, the Hepler family and Seneca Hardwood Lumber:
As Putin grabs Crimea, the Obama Administration decides to give him the Internet, too. Last Friday, the Obama administration announced that it will relinquish its oversight of the Internet Corporation for Assigned Names and Numbers, the body that assigns and maintains domain names and Web addresses for the Internet. This move, explains L. Gordon Crovitz, is the digital equivalent of announcing that the U.S. Navy would no longer patrol the sea lanes:
If authoritarian regimes in Russia, China and elsewhere get their way, domains could be banned and new ones not approved for meddlesome groups such as Ukrainian-independence organizations or Tibetan human-rights activists.
Until late last week, other countries knew that Washington would use its control over Icann to block any such censorship. The U.S. has protected engineers and other nongovernment stakeholders so that they can operate an open Internet. Authoritarian regimes from Moscow to Damascus have cut off their own citizens’ Internet access, but the regimes have been unable to undermine general access to the Internet, where no one needs any government’s permission to launch a website. The Obama administration has now endangered that hallmark of Internet freedom. […]
The Obama administration has played into the hands of authoritarian regimes. In 2011, Vladimir Putin—who, as Russia took over Crimea in recent days, shut down many online critics and independent media—set a goal of “international control over the Internet.”
In the past few years, Russia and China have used a U.N. agency called the International Telecommunication Union to challenge the open Internet. They have lobbied for the ITU to replace Washington as the Icann overseer. They want the ITU to outlaw anonymity on the Web (to make identifying dissidents easier) and to add a fee charged to providers when people gain access to the Web “internationally”—in effect, a tax on U.S.-based sites such as Google and Facebook. The unspoken aim is to discourage global Internet companies from giving everyone equal access. […]
By a vote of 89-55, countries in the ITU approved a new treaty granting authority to governments to close off their citizens’ access to the global Internet. This treaty, which goes into effect next year, legitimizes censorship of the Web and the blocking of social media. In effect, a digital Iron Curtain will be imposed, dividing the 425,000 global routes of the Internet into less technically resilient pieces.
The ITU is now a lead candidate to replace the U.S. in overseeing Icann. [Wall Street Journal, March 18]
The simple error of economic reasoning that the Left keeps making on health care: Some people see that countries with more government financing and more price controls spend a lower percentage of their gross domestic products on health care and they conclude that the United States should copy those countries’ health care systems. The “savings,” however, are an illusion, explains John Goodman:
While it is true that we spend more than other countries in an accounting sense, we actually use fewer real resources: fewer doctors, fewer nurses, fewer hospital beds, shorter lengths of stay, etc. That means that from an economist’s point of view, we aren’t necessarily spending more than other countries. […]
We can’t devote more real resources to non-health care unless we use fewer real resources in health care. But if we copy other countries, the resource flow will go in the opposite direction. That is, in order to have more doctors, nurses, hospital beds, etc., we will have to have fewer teachers, fewer roads, less R&D!
Real savings, says Goodman, are to be found in more competition, which can only happen when more patients spend more of their own money. We know competition can work in health care, because it already is. Consider cosmetic surgery and Lasik surgery, mostly paid for out-of-pocket by patients:
Over the past two decades the real price of cosmetic surgery has gone down dramatically ? even in the face of soaring demand and technological innovation of the type that we are told increases costs for every other type of surgery.
Over the past decade the real price of Lasik surgery has declined by 30 percent ? again with soaring demand and technological innovation, a satisfaction rate of 93 percent, and quality competition reflected in deferential prices. (So much for the problem of transparency!) [John Goodman’s Health Policy Blog, March 19]
Toolkit: What content goes viral? People share content they find on the Internet when it “helps them to make a strong statement about who they are,” and when the content gives them a strong, positive emotional response, explains Jack Shepherd of Buzzfeed:
[O]n today’s internet , your readers are your publishers – they are the people who decide which of your articles or lists or quizzes or infographics (another piece of jargon that’s worth avoiding because it sounds like homework) to share with their friends. They are more likely to do that if the act of sharing helps them to make a strong statement about who they are. […]
A 2010 study of the New York Times “most emailed” list found the articles that made the list tended to fall into one of four categories: awe-inspiring, emotional, positive or surprising. And the lesson from this isn’t so much that people like to feel feelings when they engage with a piece of content, it is that when it works – when the thing actually makes them cry or exclaim or feel inspired or shocked or happy – they want to share that experience with others. [The Guardian, March 16]
Toolkit: What makes a movement? The underappreciated role of the first follower: “The best way to make a movement, if you really care, is to courageously follow and show others how to follow. When you find a lone nut doing something great, have the guts to be the first person to stand up and join in.”
A little bit of union accountability in Michigan: The union that skimmed $34 million from the benefit checks of home-based caregivers in Michigan has been hit with the second-largest fine ever for a campaign finance violation in Michigan. The SEIU will pay $199,000 in penalties for reporting violations committed in 2012 when it created two organizations to support Proposal 4, which would have written the dues-skim set-up into the state constitution. Jack Spencer reports that the reporting violations were part of an SEIU attempt to conceal its role in funding the pro-Proposal 4 effort, which was rejected by the voters in November 2012.
The dues skim set-up, which ended in 2013, “featured a dummy employer, a mail-in stealth election, and the use of the term ‘home healthcare workers’ to describe caregivers in the Home Help Program,” reports Spencer: “The Mackinac Center Legal Foundation has filed a complaint against the SEIU to try to get back some of the dues that was paid to SEIU. That case is still pending.” [Michigan Capital Confidential, March 12]
A problem with the “corporations can’t pray” argument: The government’s position in defending its contraception mandates against freedom of religion claims is inconsistent with the view the courts have long taken regarding racial discrimination. Luke Goodrich of the Becket Fund for Religious Liberty explains:
The government says it is a “bedrock principle that a corporation is legally distinct from its owners.” Thus, there is “no basis on which to impute the [owners’] religious beliefs to the corporat[ion],” and no basis for a corporation to sue for religious discrimination.
That’s just what defendants accused of race discrimination have argued. They claim that a corporation is distinct from its owners, and there is no basis to impute the owners’ race to the corporation. On this view, there is no such thing as racial discrimination against a minority-owned business.
How do you think those defenses fared?
They’ve lost. Every single time.
The latest rejection came just yesterday [March 6], from the unanimous U.S. Court of the Appeals Fourth Circuit. As the court explained: “[A] minority-owned corporation may establish an ‘imputed racial identity’” based on the race of its owners. In support, it cited similar rulings from the First, Second, Seventh, Eighth, Ninth, Tenth, and D.C. Circuits. And the Supreme Court. The court marveled: “[I]t is hard to believe that the Supreme Court would deny standing to the corporation because it ‘has no racial identity.’” That would gut the civil rights laws.
The same is true in Hobby Lobby. If a corporation can have an “imputed racial identity” based on the race of its owners, it can have “imputed religious identity” based on the religion of its owners. Otherwise, the government would be free to penalize a corporation simply because the owner was a Christian. Or Muslim. Or Jew. [Salt Lake Tribune, March 15]
The mandate forces people to choose between their religion and having a business. What kind of freedom of religion is that?
Speaking of sitting on assets … The federal government spends about $1.7 billion per year maintaining 77,000 empty or underutilized buildings, according to the Office of Management and Budget. Bureaucracy is a big part of the problem, reports Laura Sullivan:
No federal agency can sell anything unless it’s uncontaminated, asbestos-free and environmentally safe. Those are expensive fixes.
Then the agency has to make sure another one doesn’t want it. Then state and local governments get a crack at it, then nonprofits — and finally, a 25-year-old law requires the government to see whether it could be used as a homeless shelter.
Many agencies just lock the doors and say forget it. [NPR, March 12]
Ilya Somin adds:
The whole situation is an unintended lesson in the advantages of private property rights. If a private owner has a piece of unused property, he or she has strong incentives to find some valuable use for it. If he can’t, he has a strong incentive to sell it to someone else who can do better. In both cases, he gets to keep the profit. For that reason, he also has incentives to keep track of the property he owns, and avoid imposing burdensome bureaucratic procedures that make it difficult to sell unused land. [Washington Post, March 13]
Work weeks are shorter since ObamaCare became law. Businesses with fewer than 50 full-time employees are exempt from ObamaCare’s mandate to provide their employees with health insurance. One way of staying below that threshold of 50 full-time employees is to hire more part-time workers. Are businesses responding to that incentive? They might be, says Edward Lazear, who notes: “The average workweek in the U.S. has fallen to 34.2 hours in February from 34.5 hours in September 2013, according to the Bureau of Labor Statistics.”
The incentive to replace full-time workers with part-time workers may be making the employment situation look better than it really is, explains Lazear: “[A]lthough the U.S. economy added about 900,000 jobs since September, the shortened workweek is equivalent to losing about one million jobs during this same period. The difference between the loss of the equivalent of one million jobs and the gain of 900,000 new jobs yields a net effect of the equivalent of 100,000 lost jobs.” [Hoover Institution, May 16]
• Confab with 500 conservative policy experts, think tank leaders, activists, and donors at The Heritage Foundation’s Resource Bank 2014 in New Orleans. Among the things you’ll learn by attending: What the Left’s agenda is for keeping conservatives from participating in politics and policymaking; how to transform the welfare state; how Louisiana has put parents in charge of their kids’ education; what’s going to happen next on ObamaCare; and what are the best strategies for getting your message out. You’ll hear from experts such as John Fund, Cleta Mitchell, Robert L. Woodson Sr., Ed Meese III, Clint Bolick, Randy Barnett, and John Goodman. Sen. Ted Cruz and Gov. Bobby Jindal will be there, too. The conference will be held March 26 – 28. RSVP now.
• Join Hobby Lobby Day on Facebook to show your support for religious liberty. Next week, the Supreme Court will hear the lawsuits of Hobby Lobby and Conestoga Wood Retailers against the Department of Health and Human Service’s contraception and abortion coverage mandates.
• Figure out if government could get better results with better designed policies. The Cato Institute will host a talk by Peter Schuck, author of Why Government Fails so Often. Schuck’s talk will begin at noon on March 27.
• Liberty-minded filmmakers, apply for an opportunity to hone your craft. Taliesin Nexus is looking for 10 creative people with some filmmaking or video-making experience for its Liberty Lab for Film program. The program gives you $10,000 to make a short liberty-themed film along with guidance from seasoned professionals. The early-bird application deadline is May 1, and the final application deadline is May 15.
• Learn how to make a difference for freedom by attending the Civitas Institute’s Conservative Leadership Conference. Speaking will be Walter Williams, Gov. Bobby Jindal, Sen. Mike Lee, Tim Phillips, Stephen Moore, Michael Cannon, Catherine Engelbrecht, John Papola, and many others. The conference will be held March 28 – 29 in Raleigh, North Carolina.
• Examine your career options in the conservative movement. The Leadership Institute will hold a Conservative Career Workshop on March 24 – 25 at its headquarters in Arlington, Va.
(Want more stuff to do? Check out InsiderOnline’s Conservative Calendar.)
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