Clause 61: The Pushback Blog

Because ideas have consequences

Posts Tagged ‘public policy

Thank You for Protecting Me from Myself

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Two very helpful persons at the Brookings Institution, Jonathan Rauch and Benjamin Wittes, have written a paper calling for more professionalism and less populism in American public life. The title of the paper claims, “voting makes us stupid.” Really?

Of course, Donald Trump is a walking testament to the stupidity of voters. But their argument goes beyond this. Let’s examine the points in detail.

More Participation Will Not Be Beneficial

The authors go back to, of all people, the Founders as a source of the idea that the Constitution was set up to limit participation. This is true. The Founders feared mob rule almost as much as government tyranny.

Drawing upon ample historical experience, they worried that democracies were vulnerable to demagoguery and prone to instability. Although they insisted that republican government required direct public input, they also constrained and balanced that input.
— Rauch and Wittes

So can we look forward to a shift in the policy of the Brookings Institution to call for a reduction in open primaries and restoration of the selection of Senators to the states?

The People are Incompetent

This is always going to be a seductive idea to a think tank that considers itself a repository of public policy expertise, but leave that aside for now.

This argument actually goes back to Walter Lippmann. In Public Opinion (1922), Lippmann attacked “the doctrine of the omnicompetent citizen.” Lippmann called for a structure modeled on his idea of the British foreign service, where disinterested and independent experts provide policy options to elected officials.

However, there is no such thing as a disinterested expert. The regime Lippmann visualized quickly degenerates into a system where the experts exercise political control because they control the menu of options under discussion.

In practice, the British foreign service wasn’t that great a model. It really worked out like this:

[Bernard] was concerned that the FO [Foreign Office] produces only one considered view, with no options and no alternatives. In practice, this presents no problem. If pressed, the FO looks at the matter again, and comes up with the same view. If the Foreign Secretary demands options, the FO obliges him by presenting three options, two of which will be (on close examination) exactly the same. The third will, of course, be totally unacceptable, like bombing Warsaw or invading France.
Yes, Prime Minister

That is what is going to happen when unelected experts are in control of the policy menu. Even Lippmann had lost faith in experts by 1925, when he wrote The Phantom Public:

[Government] is also subject to the same corruption as public opinion. For when government attempts to impose the will of its officials, instead of intervening so as to steady adjustments by consent among the parties directly interested, it becomes heavy-handed, stupid, imperious, even predatory.

There is really no such doctrine justifying public participation in politics as based on an “omnicompetent citizen.” The authority of the people is not contingent on them passing some sort of civics test. The legitimacy of the government is derived from the consent of the governed. It is not derived from the consent of that subset of the governed that those governing consider qualified.

We have the right to grant or withhold consent, not because we are omnicompetent, but because we have skin in the game. We live with the consequences of government actions. It’s our blood and treasure on the line.

  • In 1953, an Anglo-American effort in Iran instigated the ouster of Prime Minister Mohammed Mossadegh. This was undertaken primarily because Mossadegh wanted to extract more concessions from the British. The participants in the American government believed that the British economy was unable to withstand these concessions. However, the end result included both the breakup of the British monopoly on Iranian oil trade and a price increase to show the Shah was not a puppet of the west. Thus, for all the broken china, this foolish misadventure did not even accomplish its original intention. Did the American people really want what was done in their name?
  • In 2016, the Obama administration committed the United States to cut greenhouse gas emissions by 18% under the Paris Agreement. This commitment was made by executive order, bypassing the Constitutional requirement for treaties to be ratified by the Senate. The commitment, which has been revoked by Donald Trump, would have necessarily increased energy costs for American citizens in order to comply with the targets. Why did we want this? The Obama administration knew we did not, which is why it evaded review by our representatives in the Senate.

The People are Irrational

Sure, they are. But the professionals are people, too. How are they not any less irrational than the public at large?

There is a reason that David Halberstam titled his history of the Kennedy and Johnson administrations in Vietnam The Best and the Brightest. The best and the brightest can also go wrong. And when they do, the move in greater unison than the public at large. They largely drink from the same wells of information and have similar outlooks. Groupthink is particularly prevalent among professionals.

The authors quoted Lee Drutman: “Informed, individualistic rationality is a chimera.” Actually, rationality in public life in general is overrated. One of the most rational politicians of the past hundred years was Neville Chamberlain. It is perfectly rational to want to avoid going to war to interfere “in a faraway country between people of whom we know nothing.” But history demonstrated it was a bad idea.

The madman is not the man who has lost his reason. The madman is the man who has lost everything except his reason.
— G. K. Chesterton, Orthodoxy

More Education Will Not Be Helpful

More than what? In 1918, the National Education Association completed Cardinal Principles of Secondary Education. This report called for seven objectives of secondary education, including Civic Education:

For such citizenship the following are essential: A many-sided interest in the welfare of the communities to which one belongs; loyalty to ideals of civic righteousness ; practical knowledge of social agencies and institutions; good judgment as to means and methods that will promote one social end without defeating others; and as putting all these into effect, habits of cordial cooperation in social undertakings.
Cardinal Principles of Secondary Education, p. 13.

Yet, here we are 99 years later. Every year students are reported to be in greater ignorance of civics, politics and economics than last. Rauch and Wittes cite a survey showing that most respondents cannot name the three branches of government, identify the Chief Justice of the Supreme Court or locate the entity with the power to declare war. Moreover, they cite the common belief that the government spends more on foreign aid than on Social Security or Medicare.

So how is this not an indictment of the existing education establishment? How has the education system delivered on the 1918 goals?

In Public Opinion, Lippmann famously wrote:

It is because they are compelled to act without a reliable picture of the world, that governments, schools, newspapers and churches make such small headway against the more obvious failings of democracy, against violent prejudice, apathy, preference for the curious trivial as against the dull important, and the hunger for sideshows and three legged calves. This is the primary defect of popular government, a defect inherent in its traditions, and all its other defects can, I believe, be traced to this one.

The education system has had a century to remedy the “preference for the curious trivial as against the dull important.” It has not done so, and we can only conclude that it does not want to. Better to keep people in their state of supposed ignorance, and then tell them to leave public policy to the professionals. This is a scam.

It is manifestly unfair to fail to educate people to be effective citizens and then tell them that they can’t participate in political life because they are living in civic ignorance.

The Return of Intermediaries

Rauch and Wittes make the case for intermediaries in public. Political intermediaries can be elected officials or representatives of political parties. What they call a substantive intermediary has specialist knowledge of a policy area, such as health care.

Political intermediaries are necessary. Here is one Rauch and Wittes omitted: states. The several states are a necessary counterweight to federal power. It is more than time to rediscover the role of states in our political process.

The specialist intermediary would be of value. No one without specialist knowledge is going to make sense of the Patient Protection and Affordable Care Act; I tried. It would be great to have intermediaries who could help the citizen navigate the issues.

The first logical candidate might be the media. Try spending a little less time on having two groups of mouthpieces talk over each other, and devote that time to providing information on how a segment of the economy works. If that seems scary, put on segments at 4 in the morning, when no one is watching anyway, and let us record them.

Want to discuss pricing of prescription drugs? Go through the history of the FDA and the decisions that were consciously made to make sure that new drugs were introduced in the US first. Follow the economic consequences of those decisions. Discuss the new drug application (NDA) process that generates enough paper to fill a semi-trailer. Visit ambulancechaser.com (I am not going to give them free publicity by using their real domain name), where people seeking victim status can be gathered into a class to launch a lawsuit.

Corporatism hated intermediaries and sought to get rid of them at every opportunity, leaving the individual citizens alone with the all-knowing, almighty federal government. We need intermediaries that Brookings hasn’t even thought of.

However, we also need to be able to trust the intermediaries. We require that they are giving us all the information, not just a limited and purposeful set of options (two of which are identical and the third totally unacceptable). We need intermediaries to watch the intermediaries.

Yes, the world we live in requires tradeoffs and choices from among the unpalatable and the disastrous. The belief that ordinary people cannot understand these issues in a nuanced way is a piece of received wisdom. Populism is a rebellion against this, an assertion that legitimacy derives from the consent of the people, whether or not the people express themselves in a way pleasing to those who would wield power over them. Thank God the American people have the sand to push back on the professionals who would undermine them.

Personal Loyalty in Government

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CBS News estimates that about one-fifth of the country is solidly behind President Trump. Of this subset of the population, they report that 55% “believe government and law enforcement officials should take an oath of loyalty to the Constitution and president,” as opposed to pledging loyalty to the Constitution alone. Given an adult population of 209 million, by my reckoning, that would be 23 million adult Americans holding this belief. I find this deeply disturbing.

There are about 4,000 politically appointed positions in the administration. Those in the executive branch serve at the pleasure of the president.  Although he can dismiss them at any time, there can be political consequences for doing so. Managing a federal department is not the same as managing a family business. The removal of a highly respected senior staffer can demoralize those who had been working for her, unless there are reasons the survivors can respect and these reasons are communicated well.

A requirement of personal loyalty to an individual President would take the political appointees in the direction of a Führerprinzip, in that it would communicate that the will of the executive takes priority over the appointee’s concepts of right and wrong. Furthermore, the door swings both ways; an executive politically hostile to your interests as a citizen could also demand such loyalty from political appointees.

Attention, 23 million Americans: rethink this idea immediately. It would represent a significant further step to make politics “a civil war by other means,” and we are far along on that path already. The Constitution was designed to prevent a majority from running roughshod over a minority. It deserves the highest loyalty of those who serve in government.

Written by srojak

May 23, 2017 at 5:10 am

Interview with the Prosecutor

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Steve Heath was a prosecutor, working for two years in New Orleans and another seven in Dallas. He has been in the engine room of the criminal justice system.

I met with him to ask him for his perspective and to provide a perspective that we, as ordinary citizens, would never have on inner-city crime and justice issues. All quotes in this post are from him.

[The DA’s office] got Federal grants — Federal money — but all they were doing was hand-to-hand drug sales of punks on the street, mostly black, OK? And they got tons of Federal money. They never ever got beyond the street level and got somebody really big — a drug dealer or a money launderer …

The Federal government gives counties money to prosecute crimes. Two major areas Heath cited are drug offences and domestic violence. So where you pay people to prosecute, it is not hard to figure out that you are going to get more prosecutions. Are they valid prosecutions? Well, where are your controls?

Heath said that most of the people prosecuted for dealing drugs are just go-betweens that are lured in by the promise of easy money.

You could set those people up forever … The cop will come to [the kid], “I want to buy a certain amount of cocaine.” So he goes and talks to the kid he knows who sells cocaine.

“Can you get me more?” “Well, I guess so.”  [The kid says], “Hey, this is a good deal, I’m making money off this stuff.” He was never even inclined to do it before. They get him to a certain level, next thing you know, they’re recommending a four or five year sentence for him on the first offence.

Just as in any other human activity, the competence of prosecutors is distributed over a range. One of the characteristics that Heath observed to distinguish good prosecutors from time-servers was their willingness to do real investigative work and follow the leads to the ultimate sources of crime.

You can see how the prisons get filled up. Black kid gets set up, he gets probation, he makes a mistake and gets a dirty UA on his test, it gets revoked. Next thing you know he’s unemployed, he can’t get a job, what’s he gonna do? Next thing you know, they’re all in the prisons. It is kind of racist, so I thought, “Black people kind of have a point here.” [Prosecutors and cops] are disproportionately setting them up.

I don’t think police are doing it because they’re racists; [the targets] are just easy marks. You can get Federal money all there and set up all these people, you can get your stats up: “500 more convictions than last year! 10% more than when the prosecutor took over three years ago!” But that’s all they focus on.

Given the incentives, it is easy to understand the pressures on ordinary police. The prosecutor wants to run up his score and the Feds are offering money for which they want to see results. You don’t do this in leafy Deerfield, Illinois or Highland Park, Texas, where the kids have parents who will get lawyers and contest the cases. You need concentrated people who can’t effectively defend themselves. Those people are going to be living in cities and are going to be disproportionately black.

The prosecutors like the statistics, because they can wave them in front of the voters. The Feds like the statistics, because they provide reassurance that the grant programs are effective and the money given out is used effectively. But it is all bogus.

“Win 98% of our cases.” Yeah, you win that many because you never try any tough cases. You just set up these punk cases, that most of them plead out because they have no choice. That’s where I’m sympathetic with the black mindset, where what I call the “prison-industrial complex” where everybody makes a ton of money setting up people.

Heath also had some observations about police training. He strongly disliked the evolution of the shoot-to-kill policies in policing.

It kind of starts with — I can’t remember the Supreme Court case of 20-30 years ago, which basically allowed the use of force by the police if they felt their lives were in jeopardy. So that kind of opened the door, then they got a lot of governmental immunity. It’s hard to get these cases prosecuted civilly.

This article discusses the two cases from the 1980s that match up to Heath’s description:

They’re trained that, if their lives are in danger, you don’t shoot to wing somebody in the arms, or legs, whatever; you shoot to kill. So the training is bad, and frankly I think the training has gotten worse since Homeland Security money has come in here. It’s more like, police are starting to have their own mentality of fear and intimidation, rather than serve and protect.

He also observed incidence of what only can be described as overkill.

What bothers you is that they don’t just shoot them once sometimes. You see these videos, also — there was this impaired man in the street, and he got up and he had a knife. There were twenty cops surrounding him, and he got up and took two steps and all of a sudden fifteen cops shoot 38 bullets in him. He was not within thirty feet of anybody.

Heath noted that you don’t have to be black to get the short end of the fear-and-intimidation stick.

I was down in Austin and I made an wrong turn, and next thing you know a bunch of cops pull me over. I start to get out and there are three of them with guns pulled, screaming at me, “Get out of the car!”

Heath observed that there are energetic and lazy police just as there are in any other line of work. He placed his emphasis on the leadership positions; these determine what behaviors will or will not be tolerated, what training will be delivered and what culture will be cultivated.

You really need to work on fostering good race relations by listening to black leaders who are saying, “Why is it always the black kids you are setting up on all these drug charges?”

One of the side effects of the war on drugs is the feeding of what Heath calls “the prison-industrial complex,” likening it to the “military-industrial complex” that Eisenhower warned about.

It’s an industry. It’s cluttering our prisons. Get ’em on probation, revoke and then they can’t get jobs, they can’t get work. I remember the stats were, like, 70% of blacks between 18 and 34 — males — were in probation, prison or parole. That’s insane. Mostly for drug offenses.

He said that he had, at one time, been in favor of drug criminalization. His experiences in the cities had soured him on it.

The war on drugs has been a complete and total failure. They never try to go to the top. HSBC and Wachovia were both convicted of laundering massive amounts of drug money. Wachovia conveniently folded at the time, got bought up by Wells Fargo. HSBC, what’d they get, a billion dollar fine or something?

Here are some additional links relating to HSBC:

He supports community policing initiatives. He does not believe that the majority of police are abusing their authority, but those that are have an effect on public perception beyond their number.

They police officers need to walk a beat. They need to get to know the people in their neighborhood. They need to develop their snitches, their sources, their whatever. Get a pulse … They need to bond with the community.

Heath expressed the hope that we could get back to a serve-and-protect model of law enforcement that did not view the people in the community as adversaries.

Written by srojak

December 11, 2016 at 7:25 pm

Overtime Sudden Death

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This spring, while you weren’t looking, President Obama ordered the Department of Labor to revise the regulations governing overtime pay. Specifically, for an employee to be exempt from requirements to be paid overtime (often called an exempt employee), three tests are applied:

  1. Salary basis test: The employee must be paid a predetermined and fixed salary that cannot be reduced due to variations in the quality or quantity of work the employee performs. Hourly employees and workers being paid piece rates cannot be exempt.
  2. Salary level test: The employee must be paid at least a minimum amount specified by regulation. As of this writing, that amount is $23,660/year, last revised in 2004.
  3. Duties test: The employee must have duties that are primarily executive, administrative or professional.

The centerpiece of the change was a revision of the salary level test, bringing the threshold salary up to $47,446/year. These rules were to take effect on 1 Dec 2016.

I don’t have a problem with labor law in general or with revision of the salary level test in particular. I invite those readers who disagree to read a special section of this post I have included at the end to discuss the history of labor law.

It would have been better to have a multi-year incremental ramp. Businesspeople can handle predictable change much better than sudden change.

However, there was a significant process problem. Obama clearly believed that he could not obtain the consent of Congress. Being of superior intellect and wrapped in righteousness, Obama went ahead and issued a Presidential Memorandum — basically an executive order — directing the Department of Labor to go forward with the changes.

Obama may well have been right in his supposition. It’s irrelevant, because Congress is the entity empowered by the Constitution to make law. Consider, by way of analogy, if I were to say, “I would have asked you for money to feed the homeless children, but I knew you would never agree. So I took one of your checks and forged your signature.” Whatever my supposedly higher purpose would have been, my action would still not be acceptable.

Since those opposing the changes did not get the opportunity to have their views represented in Congress, they went to court. This week, a federal judge in Texas issued a nationwide injunction blocking implementation of the new rules. In his ruling, the judge found that the Department of Labor exceeded its authority under existing law and ignored the intent of Congress.

I find it particularly noteworthy that the primary plaintiff in the case is the State of Nevada, itself a government entity. The case raises challenges to the ability of the federal government to restrict the employment practices of state governments on Tenth Amendment grounds, although the judge did not accept this reasoning.

The proposed changes also include a mechanism to automatically update the salary level threshold every three years based on statistical data. The court found that there was no provision in existing law to implement this. Therefore, absent the expression of the will of Congress, the Executive exceeded its authority.

This decision is only a stay; the final fate of the change in law remains to be decided. However, one of the tests that the court applied was: Does the plaintiffs case have substantial likelihood of success on its merits? The court found that it did.

Special Bonus Media Question

This issue first arose in May 2016, when Obama issued his Presidential Memorandum. How much have you heard about this, before or after the court decision of this week, from the media outlets you frequent?

The Origins of Labor Law

One hundred years ago, there were few labor laws. Employers enjoyed concentrated negotiating power and could dictate almost any terms. There were widespread abuses, including:

  • Failure to pay employees on time;
  • Payment of wages in company scrip, which could either be redeemed at the company store for goods at arbitrary prices or exchanged at a discount for currency;
  • Implementation of arbitrary deductions from pay;
  • Failure to disclose deductions from pay.

“Well, if you don’t like it, don’t work for that employer.” This is a shallow and cavalier brush-off that ignores the disparity in bargaining power.

The Anglo-American legal tradition has not accepted such a principle. Here is an illustrative case in black-letter law. A railroad required its employees to sign contracts relieving the railroad of responsibility for the negligence of other employees (as the organization itself acts through the agency of employees, including managers and executives). The state supreme court rejected the notion that the employer could escape from responsibility in this manner:

And it may be questionable whether it is in their power to denude themselves of such responsibility by a stipulation in advance. But we prefer to rest our decision upon the broader ground .of considerations of public policy. The law requires the master to furnish his servant with a reasonably safe place to work in, and with sound and suitable tools and appliances to do his work. If he can supply an unsafe machine, or defective instruments, and then excuse himself against the consequences of his own negligence by the terms of his contract with his servant, he is enabled to evade a most salutary rule.

In the English case above cited it is said this is not against public policy, because it does not affect all society, but only the interest of the employed. But surely the state has an interest in the lives and limbs of all its citizens. Laborers for hire constitute a numerous and meritorious class in every community. And it is for the welfare of society that their employers shall not be permitted, under the guise of enforcing contract rights, to abdicate their duties to them. The consequence would be that every railroad company and every owner of a factory, mill or mine, would make it a condition, precedent to the employment of labor, that the laborer should release all right of action for injuries sustained in the course of the service, whether by the employer’s negligence or otherwise. The natural tendency of this would be to relax the employer’s carefulness in those matters of which he has the ordering and control, such as the supplying of machinery and materials, and thus increase the perils of occupations which are hazardous, even when well managed. And the final outcome would be to fill the country with disabled men and paupers, whose support would become a charge upon the counties or upon public charity.
— Little Rock & Fort Smith Ry. Co. v. Eubanks, 3 S.W. 808 (1886).

The spirit of this ruling cannot be ascribed to progressivism, as it predates progressivism. It was written in a time when judges were unwilling to rewrite the law. It stands as a historical marker, attesting that our legal tradition has never accepted an interpretation of laissez-faire that grants market participants with concentrated negotiating power free rein to impose whatever terms they choose on market participants with diffuse negotiating power.

Labor law originated in response to real abuses in the employment market. Abuses still occur, even with the laws in place. For example, I recall a software company in the nineties that would put salaried employees on a 36-hour week every time the owner got in a cash flow bind. That is not how being salaried is supposed to work. The employees may have made a calculated decision that enduring this was better than being laid off, but it is not OK. Tolerating this puts the competitor, who may also be in a cash flow bind, under unwarranted pressure to do likewise.

It is obvious to anyone giving this a moment’s though that employers can and do classify employees as salaried in the expectation that they will be working at least forty hours a week and that the employers wish to avoid paying overtime to these employees by making this classification. It is reasonable for the law to implement defenses to such reclassification practices, which are simply to evade compliance.

 

 

 

Written by srojak

November 25, 2016 at 11:06 am

US Constitiution 1.1

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In 1979, Theodore Lowi released the second edition of his book The End of Liberalism: The Second Republic of the United States. Lowi teaches at Cornell and would be characterized as a liberal; for example, he advocates government planning. However, he is also a proponent of the rule of law. The evolution of the political processes away from law and representative government toward bargaining and interest-group government began to trouble him by the time he wrote the first edition of the book ten years earlier.

Where contemporaries saw government departure from formalism as pragmatic, Lowi saw it as corrupt. Where reality deviates from formalism, we find arbitrariness, influence-peddling and injustice. He wrote the best defense of political idealism I have seen:

The gap between form and reality gives rise to cynicism, for informality means that some will escape their fate better than others. There has, as a consequence, always been cynicism toward public institutions in the United States, and this, too, is a good thing, since a little cynicism is the parent of healthy sophistication. However, when the informal is elevated to a positive virtue, and when the gap between the formal and the informal grows wider, and when the hard-won access of individuals and groups becomes a share of official authority, cynicism unavoidably curdles into distrust. Legitimacy can be defined as the distance between form and reality. How much spread can a democratic system tolerate and remain both democratic and legitimate?
The End of Liberalism, p. 297.

Although he did not use the term, the mechanisms that Lowi describes are that of corporatism: public-private partnerships in rule-making and governance. Although Lowi did not name it, he described it well enough:

The state grows, but the opportunities for sponsorship and privilege grow proportionately. Power goes up, but in the form of personal plunder rather than public choice. If would not be accurate to evaluate this model as “socialism for the rich and capitalism for the poor,” because many thousands of low-income persons and groups have provided within the system. The more accurate characterization might be “socialism for the organized, capitalism for the unorganized.”
Ibid, pp. 278-9.

For the second edition, Lowi reverse engineered a new constitution for the government from actual practice, in an attempt to highlight the spread between form and reality.

There ought to be a national presence in every aspect of the lives of American citizens. National power is no longer a necessary evil; it is a positive virtue.

Article I. It is the primary purpose of this national government to provide domestic tranquility by reducing risk. This risk may be physical or it may be fiscal. In order to fulfill this sacred obligation, the national government shall be deemed to have sufficient power to eliminate threats from the environment through regulation, and to eliminate threats from economic uncertainty through insurance.

Article II. The separation of powers to the contrary notwithstanding, the center of this national government is the presidency. Said office is authorized to use any powers, real or imagined, to set our nation to rights by making any rules or regulations the president deems appropriate; the president may subdelegate this authority to any other official or agency. The right to make all such rules and regulations is based upon the assumption in this constitution that the office of the presidency embodies the will of the real majority of the American nation.

Article III. Congress exists, but only as a consensual body. Congress possesses all legislative authority, but should limit itself to the delegation of broad grants of unstructured authority to the president. Congress must take care never to draft a careful and precise statute because this would interfere with the judgment of the president and his professional and full-time administrators.

Article IV. There exists a separate administrative branch composed of persons whose right to govern is based upon two principles: (1) the delegation of power flowing from Congress, and (2) the authority inherent in professional training and promotion through an administrative hierarchy. Congress and the courts may provide for administrative procedures and have the power to review agencies for their observance of these procedures; but in no instance should Congress or the courts attempt to displace the judgment of the administrators with their own.

Article V. The judicial branch is responsible for two functions:
1. To preserve the procedural rights of citizens before all federal courts, state and local courts and administrative agencies, and
2. To apply the Fourteenth Amendment of the 1787 Constitution as a natural-law defense of all substantive and procedural rights.
The appellate courts shall exercise vigorous judicial review of all state and local government and court decisions, but in no instance shall the courts review the constitutionality of Congress’ grants of authority to the president or to the federal administrative agencies.

Article VI. The public interest shall be defined by the satisfaction of the voters in their constituencies. The test of the public interest is re-election.

Article VII. Article VI to the contrary notwithstanding, actual policymaking will not come from voter preferences or congressional enactments but from a process of tripartite bargaining between the specialized administrators, relevant members of Congress and the representatives of self-selected organized interests.

How did he do? How closely did he bring the form of his constitution to matches what actually happens?

Written by srojak

October 15, 2016 at 2:48 pm

The Informed Celebrity Test

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There are many celebrities who appear to be confused. They think that they have a pulpit to pronounce on economics and politics because their celebrity status gives them access, whether or not they actually have any backing for their opinions.

Celebrities do not have a monopoly on being ill-informed. However, they have an ability to be heard that ordinary private citizens do not enjoy. They have a ready platform to get their message out and attempt to influence others. This platform is not available to the rest of us.

To compensate for the access advantages a celebrity has over any other citizen, I offer this simple test for celebrities to take before they tell the rest of us how we ought to vote. The positions taken are not as important as the support offered for them.

  1. The Department of Labor has announced changes to the regulations under the Fair Labor Standards Act (FLSA), to go into effect on 1 December 2016. Specifically, the earnings limit for salaried employees who must be paid overtime will be raised to $47,476/year, with an automatic adjustment every three years (at this writing, the limit is $23,660/year).
    1. Should a salaried employee receive overtime? Why or why not?
    2. What is the principle that guides your answer to the previous question?
    3. Under what constitutional authority is this change to the law being made?
    4. What are two regulations regarding labor and wages that the original FLSA, passed in 1938, established?
    5. Name two employer practices relating to wage payments for adult workers that used to occur before the 1930s and caused people to want federal labor law.
    6. The same change sets the income level of a “highly compensated employee” at $134,004/year, which is obtained by finding the 90th percentile of full-time salaried workers across the nation. What multiple of that number did you make last year?
  2. The Citizens United v. Federal Election Commission case [558 U.S. 310] involves the regulation of political activity by organizations.
    1. The case was appealed when a lower court declined to provide injunctive relief to Citizens United. What was the Federal Election Commission doing that Citizens United sought an injunction to stop?
    2. What was the majority finding of the court?
    3. In the dissent authored by Justice Stevens, what differences between a corporation and a human person did he identify?
    4. Where do you put the boundary between free speech and “electioneering communication”? Does it matter who is doing the speaking? Explain.
    5. How does Congress direct and control the actions of the Federal Election Commission, including assertion of accountability by commissioners for their actions?
  3. The Kelo v. City of New London case [545 U.S. 469] involved a particular use of eminent domain by the City of New London, CT.
    1. What was the twist on eminent domain particular to this case?
    2. What was the majority opinion?
    3. In the dissent written by Justice O’Connor, what was her point?
    4. Must there be a public use to be a public purpose? Why or why not?
  4. There have been various public discussions this year as to whether one or the other of the major party candidates is unqualified to be President.
    1. What are the qualifications given by the Constitution for a President?
    2. What other qualifications would you assert? On what grounds?
  5. The US national debt is, at the time of this writing, $19.6 trillion.
    1. What is the difference between the debt and the budget deficit?
    2. About 88% of the federal budget is consumed by six major items. Name four.
    3. What are the three ways available to finance government operations?
    4. Do we ever have to pay down the debt? Could we just keep running it up for the foreseeable future? Explain.
    5. The Federal government has the exclusive authority to coin money? Could the government just print its way out of debt? Why or why not?
    6. If the Federal government just repudiated the debt, what would happen? Who would be affected?
  6. In most elections, including this one, there have been discussions about what the candidates will do to create jobs.
    1. What direct authority does the President have to create jobs?
    2. What means are available to the President to influence the creation of jobs?
    3. In the 1930s, several programs were created to put people to work during the Great Depression, most notably the Works Progress Administration (WPA) and Civilian Conservation Corps (CCC). Do you think such programs could be used to effectively reduce unemployment on a permanent basis? Why or why not?

You have all the time you need.

Written by srojak

October 13, 2016 at 8:38 pm