Today the Supreme Court unanimously ruled that the resolution Congress passed in 1993 to apologize for U.S. involvement in the overthrow of the Hawaiian monarchy—a determination that remains controversial among historians—did not affect Hawaii’s sovereign authority to sell or transfer the lands that the United States had granted to the State at the time of its admission to the Union. In an opinion by Justice Alito, the Court correctly explained that the words of the Apology Resolution were conciliatory and hortatory, creating no substantive rights—and indeed the resolution’s operative clauses differ starkly from those which provided compensation to, for example, the Japanese-Americans interned during World War II.
Importantly, the Court also noted that it would “raise grave constitutional concerns” if any act of Congress purported to cloud Hawaii’s title to sovereign lands so long after its admission to the Union. This last point is perhaps most important to the ongoing debate over the “Akaka Bill,” which would create a race-based entity to extract political and economic concessions from the state and federal governments on behalf of ill-defined “native Hawaiians.” It is delicious irony that Hawaii’s attorney general, Mark Bennett, an Akaka Bill supporter, secured this victory.
Just as Hawaii is now allowed to develop state lands for the benefit of all its citizens, hopefully Congress will in future refrain from inflaming racial divisions and instead treat all Hawaiians, regardless of race, with the legal equality to which they are entitled.
Further materials on the above: Here’s Cato's brief in the case, Hawaii v. Office of Hawaiian Affairs. Here are articles I wrote on the case and on the on the Akaka Bill. Here is a write-up of a debate I had at the University of Hawaii last month. Finally, here is a podcast I did for the Grassroot Institute (Hawaii’s free-market think tank) — where, among other things, I correctly predicted the Court’s vote today and the scope of its opinion.
[Cross-posted at Cato's blog.]
Tuesday, March 31, 2009
How Progressive Are You?
I’m two weeks late coming to this, but the “Democratic Wing of the Democratic Party” Obama Administration Farm Team Center for American Progress has developed a quiz aiming to answer the question, “How Progressive Are You?“ The quiz asks you to rank, on a 10-point scale, how much you agree with 40 different statements. Now, I won’t quibble here with the misuse of the word “progressive” — having debased the term “liberal” (which in any other country pretty much means what Cato supports), the Left moves on to its next target — but the quiz highlights the false dichotomy between “progressive” and “conservative.”
The fallacy of this linear political spectrum forces people to wring their hands and call themselves “socially liberal, fiscally conservative” — does anyone call themselves “fiscally liberal” even if they are? — or “moderate” (no firm views on anything, huh?) or anything else that adds no descriptive meaning to a political discussion. Where do you put a Jim Webb? A Reagan Democrat? A Ross Perot voter? A gay Republican? A deficit hawk versus a supply-sider? Let alone Crunchy Cons, Purple Americans, Wal-Mart Republicans, South Park Conservatives, NASCAR dads, soccer moms, and, oh yes, libertarians.
And the statements the quiz asks you to evaluate are just weird. I mean, yes, “Lower taxes are generally a good thing” (I paraphrase) gets you somewhere, but what does “Talking with rogue nations such as Iran or with state-sponsored terrorist groups is naive and only gives them legitimacy” get you? Or “America has taken too large a role in solving the world’s problems and should focus more at home”? What is the “progressive” response to these statements? The “conservative” one? I think I know what the Bush response and the Obama response would be to the first one, but how does either fit into any particular ideology?
The Institute for Humane Studies at least gives you a two-dimensional quiz, so you can see how much government intervention you want in economic and social affairs (the “progressive” view presumably being lots of intervention in the economy, none on social issues). And IHS poses classical debates in political philosophy rather than thinly veiled leading questions relating to current affairs.
In any event, when you finish the quiz, it tells you your score and that the average score for Americans is 209.5. How do they get this number? A selectively biased survey of people who frequent the CAP website would surely scored much higher on the progressive scale. No, it’s based on a “National Study of Values and Beliefs.” Well, ok, but, again, if those are the types of questions you ask people — or, even worse, the quiz designers code the survey responses – I’m not sure how much I care about the result. (Incidentally, the survey reveals that “the potential for true progressive governance is greater than at any point in decades.” Great, that’s either a banal formulation of the fact that Democrats have retaken the political branches or a self-serving conclusion. Or both.)
In case anyone cares, I scored 100 out of 400, which makes me “very conservative.” I suppose that won’t come as a surprise to my “progressive” friends, but then I’m always talking to them about how bad the bailouts/stimuli are for the economy, how we should actually follow the Constitution, etc. All the folks who over the years have called me a libertine or hedonist, however, will not be amused to learn that I’m actually one of them…
[Cross-posted from Cato's blog.]
The fallacy of this linear political spectrum forces people to wring their hands and call themselves “socially liberal, fiscally conservative” — does anyone call themselves “fiscally liberal” even if they are? — or “moderate” (no firm views on anything, huh?) or anything else that adds no descriptive meaning to a political discussion. Where do you put a Jim Webb? A Reagan Democrat? A Ross Perot voter? A gay Republican? A deficit hawk versus a supply-sider? Let alone Crunchy Cons, Purple Americans, Wal-Mart Republicans, South Park Conservatives, NASCAR dads, soccer moms, and, oh yes, libertarians.
And the statements the quiz asks you to evaluate are just weird. I mean, yes, “Lower taxes are generally a good thing” (I paraphrase) gets you somewhere, but what does “Talking with rogue nations such as Iran or with state-sponsored terrorist groups is naive and only gives them legitimacy” get you? Or “America has taken too large a role in solving the world’s problems and should focus more at home”? What is the “progressive” response to these statements? The “conservative” one? I think I know what the Bush response and the Obama response would be to the first one, but how does either fit into any particular ideology?
The Institute for Humane Studies at least gives you a two-dimensional quiz, so you can see how much government intervention you want in economic and social affairs (the “progressive” view presumably being lots of intervention in the economy, none on social issues). And IHS poses classical debates in political philosophy rather than thinly veiled leading questions relating to current affairs.
In any event, when you finish the quiz, it tells you your score and that the average score for Americans is 209.5. How do they get this number? A selectively biased survey of people who frequent the CAP website would surely scored much higher on the progressive scale. No, it’s based on a “National Study of Values and Beliefs.” Well, ok, but, again, if those are the types of questions you ask people — or, even worse, the quiz designers code the survey responses – I’m not sure how much I care about the result. (Incidentally, the survey reveals that “the potential for true progressive governance is greater than at any point in decades.” Great, that’s either a banal formulation of the fact that Democrats have retaken the political branches or a self-serving conclusion. Or both.)
In case anyone cares, I scored 100 out of 400, which makes me “very conservative.” I suppose that won’t come as a surprise to my “progressive” friends, but then I’m always talking to them about how bad the bailouts/stimuli are for the economy, how we should actually follow the Constitution, etc. All the folks who over the years have called me a libertine or hedonist, however, will not be amused to learn that I’m actually one of them…
[Cross-posted from Cato's blog.]
Friday, March 13, 2009
Sanford Rejects Faustian Bargain
On Wednesday, as expected, South Carolina Gov. Mark Sanford became the first governor to reject some of his state’s share of stimulus funds, spurning $700 million (of the about $8 billion headed his way) that he said would harm his state’s residents in the long run. South Carolina’s General Assembly (controlled by Republicans who have long opposed Sanford’s attempts to cut spending, lower taxes, and generally reform government operations), using a provision of the stimulus bill inserted by Rep. James Clyburn (D-SC), nevertheless plans to seek the funds without the governor’s support. They cite section 1607 of the American Recovery and Reinvestment Act of 2009, which provides that, notwithstanding a requirement for gubernatorial certification of a request for funds:
The question arises, setting aside the relative merits of both sides’ positions, whether the governor (or someone else) could challenge this “alternative certification” provision on constitutional grounds. Here are some initial thoughts:
A state executive (and/or citizens of the given state) could bring colorable claims under the Tenth Amendment (powers not delegated to the federal government are reserved to the States and the people) , state separation of powers (legislature exercising executive power), and the non-delegation doctrine (Congress delegating its legislative authority to non-federal actors). Whether such challenges would be successful is a different matter.
The strongest claim would probably be under a combination of the Tenth Amendment and state law (depending on what the state constitution and statutes says about the federal grant process), especially given that much of the federal money is likely to come with strings/mandates attached — or would otherwise pervert state budgeting processes (as Sanford spelled out in a letter to state legislators). That is, depending on the particular program funds in question, it could well be that the federal government is doing an end-run around the state executive in “commandeering” (a term of art taken from the important Supreme Court case of Printz v. United States) state agencies without the full lawful acquiescence of the state government — i.e., without presentment of a bill for the executive to sign in the normal course of legislative action.
Moreover, I’m not sure how federal legislation could lawfully trump a state constitutional/statutory provision requiring that, say, federal monies only be accepted by state agencies subject to executive certification. If it could, then what’s to stop the federal government from putting in a further alternative provision allowing certification by majority vote of a state supreme court, let alone by town councils, agency heads, or any other imaginable alternatives? No, a conclusion to the contrary seems facially contrary to the separation of powers, disrupting state political structures in a way that the federal government cannot do by simple legislation.
As a caveat, the above analysis hinges on the substance of the relevant state constitution and statutes (and I haven’t yet thoroughly studied South Carolina’s, though I suspect they’re favorable to the points I’m making). The point is, it is not at all clear that Section 1607 should be considered safe from legal challenge — though courts will likely go out of their way to avoid constitutional conflicts or deciding what they may characterize to be “political” questions.
[Cross-posted from Cato's blog.]
If funds provided to any State in any division of this Act are not accepted for
use by the Governor, then acceptance by the State legislature, by means of the
adoption of a concurrent resolution, shall be sufficient to provide funding to
such State.
The question arises, setting aside the relative merits of both sides’ positions, whether the governor (or someone else) could challenge this “alternative certification” provision on constitutional grounds. Here are some initial thoughts:
A state executive (and/or citizens of the given state) could bring colorable claims under the Tenth Amendment (powers not delegated to the federal government are reserved to the States and the people) , state separation of powers (legislature exercising executive power), and the non-delegation doctrine (Congress delegating its legislative authority to non-federal actors). Whether such challenges would be successful is a different matter.
The strongest claim would probably be under a combination of the Tenth Amendment and state law (depending on what the state constitution and statutes says about the federal grant process), especially given that much of the federal money is likely to come with strings/mandates attached — or would otherwise pervert state budgeting processes (as Sanford spelled out in a letter to state legislators). That is, depending on the particular program funds in question, it could well be that the federal government is doing an end-run around the state executive in “commandeering” (a term of art taken from the important Supreme Court case of Printz v. United States) state agencies without the full lawful acquiescence of the state government — i.e., without presentment of a bill for the executive to sign in the normal course of legislative action.
Moreover, I’m not sure how federal legislation could lawfully trump a state constitutional/statutory provision requiring that, say, federal monies only be accepted by state agencies subject to executive certification. If it could, then what’s to stop the federal government from putting in a further alternative provision allowing certification by majority vote of a state supreme court, let alone by town councils, agency heads, or any other imaginable alternatives? No, a conclusion to the contrary seems facially contrary to the separation of powers, disrupting state political structures in a way that the federal government cannot do by simple legislation.
As a caveat, the above analysis hinges on the substance of the relevant state constitution and statutes (and I haven’t yet thoroughly studied South Carolina’s, though I suspect they’re favorable to the points I’m making). The point is, it is not at all clear that Section 1607 should be considered safe from legal challenge — though courts will likely go out of their way to avoid constitutional conflicts or deciding what they may characterize to be “political” questions.
[Cross-posted from Cato's blog.]
When the Government Robs Peter to Pay Paul, It Violates the Constitution
The Supreme Court’s 2005 decision that the government could use its eminent domain power to transfer private property to a different private actor — which promised to use it to generate more tax revenue – touched off a firestorm of criticism and created a movement to strengthen property rights. (For the story behind that case, Kelo v. New London, I recommend Little Pink House: A True Story of Defiance and Courage, for which Cato hosted a book forum in January.) Last Friday, Cato filed a brief urging the Supreme Court to review a decision ratifying a similar, even more blatant, government taking of private property for a non-public use.
In Empress Casino v. Giannoulias, the Illinois Supreme Court upheld a statute transferring money from private riverboat casinos — and at that only the certain politically disfavored ones located in and around Chicago — to private horseracing tracks. The state high court found that the Fifth Amendment’s Takings Clause does not apply to exactions of money from private entities, which ruling the casinos are asking the U.S. Supreme Court to review.
Cato’s brief argues that the Court should grant certiorari for yet another reason: The Illinois statute (which coincidentally appeared in the transcript of the Blagojevich sting) is in clear violation of the Takings Clause’s “public use” requirement, impermissibly eroding protections for private property even under Kelo’s (flawed) standard. The statute does nothing more than rob Peter to pay Paul, a result that cannot be squared with the Fifth Amendment, which permits government takings only for public use, and then only if just compensation is paid. This case instead involves a naked transfer of the casinos’ revenues to the racetracks, with no meaningful restriction on how the racetracks use those funds — and does not remotely resemble any public use approved by the Supreme Court.
Permitting such a statute to stand will only encourage federal, state, and local governments to exact funds from one private actor for the exclusive benefit of another, transgressing the very property rights and economic liberties that inspired the Declaration of Independence and Constitution.
[Cross-posted from Cato's blog.]
In Empress Casino v. Giannoulias, the Illinois Supreme Court upheld a statute transferring money from private riverboat casinos — and at that only the certain politically disfavored ones located in and around Chicago — to private horseracing tracks. The state high court found that the Fifth Amendment’s Takings Clause does not apply to exactions of money from private entities, which ruling the casinos are asking the U.S. Supreme Court to review.
Cato’s brief argues that the Court should grant certiorari for yet another reason: The Illinois statute (which coincidentally appeared in the transcript of the Blagojevich sting) is in clear violation of the Takings Clause’s “public use” requirement, impermissibly eroding protections for private property even under Kelo’s (flawed) standard. The statute does nothing more than rob Peter to pay Paul, a result that cannot be squared with the Fifth Amendment, which permits government takings only for public use, and then only if just compensation is paid. This case instead involves a naked transfer of the casinos’ revenues to the racetracks, with no meaningful restriction on how the racetracks use those funds — and does not remotely resemble any public use approved by the Supreme Court.
Permitting such a statute to stand will only encourage federal, state, and local governments to exact funds from one private actor for the exclusive benefit of another, transgressing the very property rights and economic liberties that inspired the Declaration of Independence and Constitution.
[Cross-posted from Cato's blog.]
Subscribe to:
Posts (Atom)
Posts
