A cause for delegation

The editors at The New York Times are amused by the irony of seeing congressional Republicans suddenly calling for oversight of the executive branch now that the Treasury is asking for $700 billion to play with:

As delighted as we were to hear Republicans talk about oversight and accountablity, we couldn’t help but wonder where they were for the last seven years as the Bush administration essentially operated without Congressional oversight…

We can’t help but wonder how much the Republicans’ newfound zeal for regulating the executive branch and the equally out-of-control financial sector will last.

Probably until the elections are over.

All valid points. Congressional deference to the Bush Administration on matters of security has been shameful. But before calling out Republicans for their hypocrisy, the board ought to consider a little history. Congress has a long tradition of passing vague delegations of power and letting administrative agencies sort out the details. It’s a neat trick that lets them appear to address problems while washing their hands of responsibility when the execution goes awry. The practice goes back at least to the Great Depression with attempts to grant Roosevelt unprecedented power to regulate economic activity.

As Robert Levy and William Mellor document in their new book The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom, the Court initially ruled against these delegations as violations of the Article 1 requirement that “All legislative Powers herein granted shall be vested in a Congress of the United States.” In Schechter, for example, the Court struck down a portion of the National Industrial Recovery Act because it under it “The discretion of the President in approving or prescribing codes, and thus enacting laws for the government of trade and industry throughout the country, is virtually unfettered.”

There, unfortunately, the Court stopped. Not a single statutory program since then has been struck down as an impermissible delegation of congressional authority. As long as there is an “intelligible principle” to guide agencies’ discretion, they’re allowed to make and enforce new law — and these “intelligible principles” can be remarkably vague. The laws created by unelected administrative agencies now dwarf those passed by Congress. The Federal Register runs more than 77,000 pages long, listing rules from more than 300 agencies. The FCC, FDA, EPA, SEC, and countless other agencies derive their sweeping authority from the Court’s long history of letting Congress foist responsibility for costly regulations onto unaccountable bureaucracies. Levy and Mellor conclude that:

…delegation buttresses the power and influence of special interests. Ordinary citizens are even less well equipped to press their case before administrative agencies than before Congress. National legislators– but not agency heads — are responsive to the needs and desires of voters, who can exact retribution at the polls. By contrast, individual voters have no direct representation in the administrative process, nor do they typically have access to trained legal counsel, expert witnesses, and consultants…

Delegation has become a political narcotic — hooking Congress on more and bigger regulatory schemes with scant regard for their costs, little concern over the political repercussions, and most of all, disrespect for a Constitution expressly designed to prohibit what Congress has eagerly promoted.

Over at Volokh, David Bernstein speculates that approving a blank check for Paulson could provide the Court a fresh opportunity to revisit the non-delegation doctrine and the limits of what counts as an intelligible principle. If it does so, I expect the NYT editorial board will be among the loudest defenders of broad regulatory power.


Michigan’s loss is Colorado’s gain

In my final guest post at Radley’s blog, I wrote:

I was surprised that Michigan’s distilleries are in business at all. The state has one of the highest taxes on distilled products in the country. Misguided ethanol subsidies have enticed farmers to plant corn instead of rye. And on top of all this they have to deal with a distribution system that’s run by a state monopoly and forbids them from selling their products to willing buyers. Opening a distillery in this legal environment sounds crazy, but despite this Michigan has become an improbable leader in micro-distilling.

Those laws have cost Michigan one of its better distilleries. Leopold Brothers, makers of a broad line of craft-distilled spirits, have left Ann Arbor for Colorado. Part of the reason for the move was a rent increase, but Michigan’s restrictive distribution laws were another major factor. As Todd Leopold explained in February:

We would’ve opened in Ypsi in a hearbeat, but the laws governing spirits sales makes it so we couldn’t sell half of our product line at a new bar (our Rum and Whiskeys). To top it off, self-distribution is legal in Colorado, and that make all the difference.

I picked up a bottle of Leopold’s American Small Batch Gin and have really enjoyed it. It’s distilled with an emphasis on botanicals like California oranges and Florida pummelos, and these citrus notes stand out in the taste and aroma. It’s a soft gin, good for a dry martini or even enjoyed neat. I’ve heard good things about their peach liqueur and look forward to trying their new absinthe verte; their French press coffee liqueur sounds especially intriguing, but I haven’t come across it on any shelves yet.

Michigan has slightly liberalized its distribution laws by allowing on-premise sales, but it’s still a control state with extremely high taxes on distilled products. If the government would get out of the way, Michigan could continue to thrive as a center for micro-distilling. And if not, I’m sure less restrictive states like Colorado will be glad to lure away their businesses.


Links for 9/24/08

Economists sign open letter against the bailout; podcast with Cato’s Bill Niskanen

David Cay Johnston’s questions about the Paulson plan

“The problem isn’t that people were greedy, it’s that they weren’t very good at being greedy.”

If you’ve got the cash, it’s a good time to buy a private jet

New Census report shows immigrants are “learning the language”

UN food aid purchases shifting to small-scale co-ops

Classically Liberal student blog

Jay Hepburn samples some new Old Tom

A Hillary comic book? Oh dear.

Finally, a job for which I am qualified


An a-Paul-ing endorsement

Recently I was feeling nostalgic for Ron Paul. If Obama’s likely to win the White House anyway, it would have been far better to see him spar with an intellectually interesting Republican rather than a political hack like McCain. Then yesterday he endorsed Chuck Baldwin of the Constitution Party for president. Dave Weigel offers a taste of Baldwin’s rhetoric. Such as this, from a few days after 9/11:

…it is now time for the American people to realize that the liberal policies of the last 30 years have created the opportunity for terrorists like those who attacked us Tuesday to accomplish their heinous crimes. America’s foolish fascination with multiculturalism and unrestricted illegal immigration made it easy for those Islamic terrorists to do what they did…

Our Founding Fathers knew that our nation’s protection was ultimately in the hands of God. Freedom and security are the blessings of God. Since God was no idle spectator when our country was birthed, He is no idle spectator today. Both blessing and judgment belong to Him. He can accomplish either according to His will.

It is, therefore, imperative that America returns to God! For nearly a half-century, we have forsaken the moral principles of Heaven. We have legally murdered too many unborn babies. We have too readily accepted aberrant, sexual behavior. We kicked Heaven out of our schools, out of our homes, and out of our hearts. As a result, God is giving us a little taste of Hell.

This in a year when the LP nominated former Congressman Bob Barr, one of the most credible candidates the party’s ever put on the ballot. As with Paul’s disgraceful failure to fire the guy who authored his racist newsletters, the Baldwin endorsement shows an appalling lack of judgment. Paul accomplished a fair amount of good with his primary campaign, but as far as I’m concerned now he can’t fade into obscurity fast enough.

Update: James Poulos has more reactions here.


Will no one speak for the magicians?

I learn via the L.A. Times that we’re getting a new penny. The portrait will remain the same, but the reverse will bear four new images introduced throughout 2009. The Times argues for getting rid of the penny altogether, while coin collectors delight at all the new designs appearing on American coinage. Yet whenever the Mint or the Treasury contemplates changes to our money, there’s one group whose voice is never heard: magicians.

Perhaps that’s because we’re a secretive lot, but the truth is that these new designs can be a real pain for us magic guys. We’re sometimes inclined to use — you didn’t hear this from me, mind you — coins that have been altered and gaffed to fit our nefarious ends. To do this it helps to know what the coins in our audience’s pockets are going to look like. This used to be easy; they all looked the same. Now we’ve got 52 different possible quarters, 3 nickels, and 5 pennies that could show up. Paper currency could be old style or new. The Kennedy half-dollar has remained mercifully unchanged and is the size most suitable for sleight of hand manipulation, but no one carries it anymore. The dime alone remains reliable. Thanks, government, for giving us only the tiniest of American coins to work with.

We magicians are a tricksy bunch and we do find our way around such obstacles. But still, life would be a lot easier if we had a powerful magic lobby standing athwart the US Mint yelling, “Stop!”


Coffee without comfort

Dan Drezner examines the ads for the new “McCafe” coffee counters recently introduced by McDonald’s and finds them wanting. His observations are spot on: while the male ad is predictable and somewhat funny, the female version is insultingly out of touch. Women can’t be knowledgeable about geography? Liking jazz is a pretense? Starbucks still plays anything besides the CDs they’re hawking and the women there don’t sport skirts? It’s as if the marketers who wrote this have never been to a Starbucks or interacted with a woman whose intellect outshines her, um, knees.

The ads really say more about the McDonaldsification of Starbucks than the Starbucksification of McDonald’s. The atmosphere ridiculed in these commercials is part of Starbucks’ aspirational appeal. Starbucks is supposed to be the trendy place to go for great coffee, but consumers are increasingly aware that’s no longer the case. By expanding so rapidly and cutting so many corners in its quest to maximize efficiency, the chain started competing with McDonald’s on the burger joint’s home turf. Now that Mickey D’s is fighting back, Starbucks is in a weak position to respond.

McDonald’s knows that there’s a huge market for decent quality coffee-related beverages (I’m not sure McDonald’s whip cream and sprinkle-laden mochas really count as “espresso drinks”) for people on the go. What McDonald’s can’t duplicate is what it shows in the commercials: the warm and welcoming environment of a coffee shop. Who would want to read a book or hold a leisurely conversation in the sterile confines of a fast food restaurant? You can imagine the advertising agency brainstorming about how to make McDonald’s look inviting, giving up, and deciding to mock the sophistication of its rivals instead. It’s Republican-style advertising brought to the coffee world. Luckily for McDonald’s, Starbucks has already done the hard work of getting people accustomed to paying three bucks for coffee without taking time to enjoy comforting amenities.

Dunkin’ Donuts has shown that a low-brow chain can compete with Starbucks on coffee, so McDonald’s is following suit. Starbucks could potentially respond by refocusing on atmosphere, but investors want bigger in-store sales, not people lazing around in comfy purple chairs. The company is already trying to get back to its roots and focus on quality, but boutique roasters and indie shops have them nailed on that. It’s a bad time to be Howard Schultz.

[Via Kids Prefer Cheese.]


Save the Skull Splitter

Thorfinn Hausakluif, a.k.a. the Skull Splitter, seventh Viking earl of Orkney, was by all accounts a badass, at least until he converted to Christianity and presumably ceased splitting so many skulls. Yet now, more than 1,000 years after his death, old Thorfinn might face his final defeat at the hands of a bunch of nannying busybodies:

A Scottish brewery has jumped to the defence of its ale called Skull Splitter amid claims its Viking-branded bottles have an aggressive theme.

The Orkney Brewery fears Skull Splitter could be withdrawn from sale following a report commissioned by alcohol watchdog the Portman Group…

It was highlighted in a report by management consultancy PIPC on the grounds its name could imply violence and also the impact the strength may have on the drinker…

A Portman Group spokesman confirmed: “A complaint has been made by PIPC about this product to the Independent Complaints Panel.”

The name of this beer is less an inducement to drink than a warning — a warning I failed to heed at the end of one particularly memorable night at Birreria Paradiso with Crispy on the Outside blogger Baylen Linnekin that left me sleeping on the floor of the coffee shop and with a raging headache the next morning. Skull Splitter indeed.

It’s a wonderfully strong ale. At 8.5% abv, it’s rich, dark, and malty with distinctive sweetness and notes of dark fruit. Not an everyday beer by any means, but absolutely perfect on a cold winter night. It’s got 20 years of brand value behind it that could all be lost if the Portman paternalists get their way. Here’s hoping the complaints panel sends them packing.

Previous label nannyism from the US:
No such thing as legal weed


Links for 9/22/08

This is not a good bailout plan; McCain and Obama both support it

A roundup of bailout criticism

“The stock market crash of October 1929 and the Great Depression were not the same thing.”

CA Prop 10 is pure corporate welfare

Seattle proposal to take profit motive out of red light cameras

Seth Roberts contra Marian Nestle

The case for red meat

Barzelay is back with some delicious fish dishes

Vandy football ranked for first time since 1984


Obama and the AUMF

In its last months in office the Bush Administration is pushing for renewal of the Authorization for Use of Military Force. Neal Katyal and Justin Florence note in Slate that the new AUMF grants the president power to detain people captured within the United States for essentially unlimited duration:

The AUMF broadly states that the president may use “all necessary and appropriate force” to prevent future terrorist attacks. That breadth of language led the administration to claim the AUMF authorized a vast range of practices, such as warrantless wiretapping, that Congress never had any inkling of when it passed the law. Only some of those programs have come to light; we know little about what else lurks under the auspices of the AUMF.

The AUMF also has no time limit. The consequences are revealed in the administration’s claims that it can detain an individual indefinitely in the war on terror, even after he has completely served the sentence imposed on him by a jury in a military tribunal. A law giving the president perpetual war powers is an anomaly in our constitutional system. Moreover, the AUMF gives Congress no ongoing oversight role in the war on terror. It does not mandate that the administration report to Congress on what it has done.

This is exactly the sort of abuse of executive power that Obama’s supporters are hoping he will end. Yet when Slate reporter Emily Bazelon contacted the Obama campaign for comment on the AUMF, the response was less than reassuring:

Opposing this should be a no-brainer for Obama, but when I called his advisers, I got only a hands-off, “we don’t want to get into it” response. The campaign said it was trying to stay on message. For sure there is better political hay for a Democrat to make this week. And the McCain campaign didn’t call me back at all. But it’s a reminder that candidates don’t win by talking boldly about the presidency as a self-effacing institution. Presidential modesty can be a hard virtue to sell.

Contrast this with Obama’s remarks earlier this month in defense of habeas corpus:

Obama, who taught constitutional law at the University of Chicago for more than a decade, said captured suspects deserve to file writs of habeus corpus.

Calling it “the foundation of Anglo-American law,” he said the principle “says very simply: If the government grabs you, then you have the right to at least ask, ‘Why was I grabbed?’ And say, ‘Maybe you’ve got the wrong person.'”

The safeguard is essential, Obama continued, “because we don’t always have the right person.”

Obama talks a good game when it comes to fighting civil liberties abuses. But when it comes to taking concrete steps to rein in the executive power he may soon wield, he’s worryingly unwilling to take a stand.

[Hat tip to Andrew Sullivan.]

Don’t forget about FISA


The expert at the lunch table

A British psychology professor and magician has called for adding magic classes to the national education curriculum:

Pupils should be taught “mind reading” card tricks and how to rejoin the ends of a magic rope after it has been cut in two, it was claimed.

Richard Wiseman, professor of psychology at Hertfordshire University, introduced the lessons to two groups of 10 to 12-year-olds as part of a study.

He insisted the classes improved pupils’ social skills and confidence levels and is now calling on them to be introduced in all schools.

Prof Wiseman, who is also a skilled illusionist and member of the Magic Circle, said they were more effective then standard classes in personal, social, health and economic education (PSHE), which are designed to help children deal responsibly with life issues such as drugs and sex…

Fifty pupils at two schools were given hour-long “Magic School” sessions as well as their normal PSHE classes. They were then given standard psychological tests.

Confidence and self esteem scores measured before and after the lessons showed that magic had a significantly greater benefit than PSHE, said Prof Wiseman.

Actually, this doesn’t strike me as a bad idea, especially if it’s replacing limited amounts time that would otherwise be spent on PSHE activities that are likely fairly worthless on the margin. Lots of magicians first got into the art to improve their social skills and confidence. (Not me, of course. You know, other magicians.) My guess is spending time learning any practical skill, not just magic, would have similar results. Magic has the advantage though of offering some immediate payoffs in the form of simple, introductory tricks. I do wonder how much teachers need to know going in.

[Title reference here. Via iTricks.]


Links for 9/19/08

Obama the military interventionist

The libertarian case for McCain

Financial deregulation that worked

This is good. Did David Brooks actually write this?

Big update on Ryan Frederick case

Rwanda elects world’s first majority female parliament

Chris Cooley really likes to share with his fans

Socotra Island, the most alien place on Earth

You may go blind, but you’ll breathe easy

I am so not going to have kids


Teach a man to fish

A post last week touched on assigning property rights to overcome the tragedy of the commons issue that threatens to destroy world fisheries. Today’s New York Times reports on a new study explaining how this can work. John Tierney comments:

A global survey of more than 11,000 fisheries points to a profitable system to protect fisheries from collapsing. The bad news is that this system, called catch shares, is used in only 1 percent of the world’s fisheries and is still controversial, but the researchers hope the new evidence of its success will win over some opponents — a group has included both local fishermen and some environmentalists.

Under this system, a fisherman owns the right to a certain percentage of the annual allowable catch in a fishery. These shares, sometimes called Individual Transferable Quotas, can be bought and sold on the market, and their price goes down if the fish population declines. So fishermen have a direct incentive to protect the fishery along with their investment: that way their share will be worth more when they retire and sell it to someone else.

Neither of the articles mentions how valuable these shares can be or how big an effect they have on fishermen’s willingness to enforce rules against each other. They do have other positive side effects though:

One of the authors, Steven Gaines, a marine biologist at U.C. Santa Barbara, noted that after the system went into effect for sablefish in Alaska, the fishermen used many fewer hooks and therefore reduced the “bycatch” — the incidental killing of fish of other species. The traditional system, in which the catch was limited only by the legal length of the season, had encouraged a “race to fish” as fishermen flung down as many hooks to catch as many fish as fast as they could. But the catch-share system enabled them to work at a slower, more efficient pace until they reached their guaranteed quota.

Tierney has reported previously on research suggesting that the profit-maximizing fish population under private ownership is greater than that needed for sustainability for many species of fish, giving fishermen an incentive to restrict catches.


Farming groups oppose NAIS

I’ve been meaning to write about NAIS, the National Animal Identification System, for a while now. The program tracks farm animals from birth to death, supposedly making it easier to identify the origin of disease outbreaks. It sounds like a good idea (and for large farms it probably is), but it has its problems. The first is that it doesn’t necessarily do much for stopping contamination that happens in a slaughterhouse. The larger concern, though, is its impact on small farmers. NAIS requires the registration and tracking of individual animals, but it makes an exception for groups of animals that spend their entire lives together and are kept isolated from other animals. Thus a factory farm could use just one registration and apply it to a massive group of cooped up chickens. A smaller farm that lets its livestock intermingle would have to register each animal individually (not to mention the practical difficulties of getting a tag on a chicken).

Participation in NAIS is generally voluntary, but smaller farmers are understandably worried about the compliance costs that could be forced on them if new food safety regulations are passed. A coalition of groups expressed their concerns to relevant congressional committees yesterday. That letter is available here.


Brewers behaving badly

Jason Kuznicki catches this story about microbrewers in California lobbying against a bill that would raise the value limit on the swag given away by beer companies from 25 cents to 5 dollars. They’re afraid that allowing Budweiser to give away more valuable stuff will eat into their sales:

“We don’t think California should give big companies the ability to grab even more of the market share, (when) they have most of the market anyway,” said Kellie Jacobs, president of Stockton’s Valley Brew, saying most microbreweries can’t afford to give away 25-cent items, let alone $5 swag.

Wah wah, cry me a river of IPA. If brewer’s can’t make beer good enough to overcome the appeal of macrobrewed yellow fizzy water and five dollar trinkets I don’t have any sympathy for them.

This isn’t the first time microbrewers have gone whining to the statehouse to fight the liberalization of alcohol laws. This past spring in Pennsylvania, Troegs and others opposed a proposal to increase the number of beers consumers could buy at retail from 12 to 18. Troegs objected because microbrewers don’t have the equipment to make 18-packs. And in California last year, microbrewers also opposed a new law that gave breweries the right to offer free tastings in bars and restaurants. They lost, but they succeeded in limiting how much free beer consumers can enjoy:

The new law allows beer tastings at bars and restaurants. It limits the amount to no more than 8 ounces per person a day and requires the beer to be served in a glass. Tastings cannot last more than an hour and there are also annual limits on the number of tastings a single manufacturer, importer or wholesaler can offer at a particular establishment.

It’s rare that I side with the big players over the microbreweries, but in these cases I wish a pox of brettanomyces upon their houses.