Commentary Magazine


Topic: regulation

NYT on Garner: We Should Have Bad Laws Just Not Enforce Them

To read the New York Times today on the tragic death of Eric Garner is to forget, momentarily, the ideological canyon between right and left in America. Conservatives have not been shy about expressing their outrage both at the excessive force used by police against Garner and at the seemingly bizarre grand jury decision not to indict the officer responsible, despite the video evidence, as the Times reports in its news pages today. Conservatives have also criticized the unintended–and in this case, as in others, deadly–consequences of bad laws. Liberals have pushed back on this, but conservatives got an unexpected (and, one suspects, unintentional) note of support from the New York Times editorial page.

Read More

To read the New York Times today on the tragic death of Eric Garner is to forget, momentarily, the ideological canyon between right and left in America. Conservatives have not been shy about expressing their outrage both at the excessive force used by police against Garner and at the seemingly bizarre grand jury decision not to indict the officer responsible, despite the video evidence, as the Times reports in its news pages today. Conservatives have also criticized the unintended–and in this case, as in others, deadly–consequences of bad laws. Liberals have pushed back on this, but conservatives got an unexpected (and, one suspects, unintentional) note of support from the New York Times editorial page.

Garner was being confronted by police in the first place because he was selling “loosies”–individual cigarettes. The black market for cigarettes was created by New York’s insanely high tax on cigarettes, a so-called “sin tax” because it is meant to dissuade citizens from behavior the state considers too harmful to themselves. It is a way for the nanny state to exert more control over people and to satisfy its desire to use citizens as guinea pigs in a big-government social engineering scheme. The cigarette tax is an effectively regressive tax on low-income communities. The state then sends the police to these low-income communities to enforce it.

Liberals are quite fond of social engineering and taxing low-income communities to grow their leviathan. But liberals aren’t so fond of police. Conservatives have pointed out that this is one of the many contradictions at the heart of modern liberalism. They have used the Garner case to point out that using the state’s enforcers to hassle citizens over bad laws can be deadly. This is unquestionably true, and the Garner case is one example.

That doesn’t negate a possible racial angle–the liberals’ tax scheme, after all, means minorities will be targeted in addition to the already fraught relationship between the police and the black community. And it doesn’t exonerate the police, especially since they apparently used a banned hold on Garner which caused his death. It’s just one factor to consider, and it’s one with a clear policy angle as well.

Today, however, conservatives should read the New York Times editorial on Garner. The Times is a far-left voice, and a reflexive one at that, so you don’t usually need to read the dumbed-down DNC press releases they pass off as editorials. But today’s is interesting. The editorialists mainly focus on the use of excessive force. But then they offer this quite revealing paragraph:

The Garner killing must lead to major changes in policy, particularly in the use of “broken windows” policing — a strategy in which Officer Pantaleo specialized, according to a report in September by WNYC, which found that he had made hundreds of arrests since joining the force in 2007, leading to at least 259 criminal cases, all but a fraction of those involving petty offenses. The department must find a better way to keep communities safe than aggressively hounding the sellers of loose cigarettes.

Read that last sentence again: “The department must find a better way to keep communities safe than aggressively hounding the sellers of loose cigarettes.” In other words, this law should be on the books but cops shouldn’t enforce it.

High regulatory burdens that contradict market demands result in black markets. We don’t have quite the problem with this that some of our European friends do because we haven’t completely abandoned market economics for the administrative state. But we’re getting closer, as the Western left’s program demands. And as we get closer, the left is beginning to notice that the financial burden of a high-tax, overly regulated government is not only shouldered by “Big Oil” or Wall Street or other bogeymen.

Those burdens–especially of taxes, as everybody knows–filter down to those the New York Times’s editors write about with empathy but in whose neighborhoods they would never choose to live. So the Garner case is giving them a window into the sometimes-deadly unintended consequences of the administrative state. Conservatives want to alleviate that burden, and the left won’t speak of it.

But who sounds more compassionate, more rational, more reality-based here? The liberal position, such as that of the New York Times, is that we should have bad laws but not enforce them, undermining the rule of law and creating new classes of criminals in the process. The conservative position is that we shouldn’t have dumb laws, or else that we should reform them.

Of course, conservatives could easily troll the left here and use the left’s argument against them: “If it saves one life…” But the policy stands on its own without resorting to hyperbole: if you overburden your citizens and turn them into classes of criminals and seek to enforce those laws you will send the police after them. This isn’t complicated. And the New York Times, against its own instincts, seems to grasp that.

Read Less

Banning Uber Undermines Innovation

Uber is the ride-sharing application that connects freelance drivers with would-be passengers. I do not personally have the app, but have used the service several times with friends. It is convenient: Credit card information is stored with the service and payment and tip are automatically billed, so no money actually changes hands, making it as convenient as “E-ZPass” is for highway toll collection. Uber is even more convenient, however, since cars can be ordered through the app, and a map actually shows where the promised car is. Uber users, in other words, need not ever worry about not finding taxis during torrential downpours or waiting endlessly—as I have in suburban Washington D.C.—for taxis to come long after their reservation times and after multiple calls to dispatch promising that they would arrive in just five minutes, when they never came.

Read More

Uber is the ride-sharing application that connects freelance drivers with would-be passengers. I do not personally have the app, but have used the service several times with friends. It is convenient: Credit card information is stored with the service and payment and tip are automatically billed, so no money actually changes hands, making it as convenient as “E-ZPass” is for highway toll collection. Uber is even more convenient, however, since cars can be ordered through the app, and a map actually shows where the promised car is. Uber users, in other words, need not ever worry about not finding taxis during torrential downpours or waiting endlessly—as I have in suburban Washington D.C.—for taxis to come long after their reservation times and after multiple calls to dispatch promising that they would arrive in just five minutes, when they never came.

Not surprisingly, as riders have flocked to Uber, taxi companies have cried foul. Taxi drivers have staged mass protests in London and, in many jurisdictions, taxi companies have sought legal remedy. Virginia was one such battleground, and San Francisco another. Now Germany has imposed a nationwide ban on the service. Many taxi companies claim they have the public interest at heart, because they adhere to far stricter regulations. Allow me to shed crocodile tears for the taxi companies. I lived in New Haven, Connecticut, throughout the 1990s. One taxi company had a near monopoly and fought tooth and nail to prevent competitors into the market, buying up all the medallions. While that company would claim that the market was saturated and cite the number of medallions issued, a good number of those were simply stashed away so that taxis were always scarce. Both service and convenience suffered. Recently, I was in Austin, Texas, waiting for a taxi in front of a prominent hotel. The bell cap said they had similar problems, with far more taxis operating on paper than in reality, with the net result being inconvenience.

Let us hope that as Uber expands, more politicians and regulators will turn a deaf ear to taxi company complaints, and instead let the market service the consumer. The simple fact of the matter is that consumers choose Uber because it is convenient. They like the services that any taxi company could have employed but didn’t. To try to shut down Uber and similar companies to protect taxi companies or their drivers is akin to shutting down blogs because newspapers don’t like the competition. Thankfully, regulators didn’t stop computer companies in the 1980s out of deference for the typewriter companies which they displaced. Or, for that matter, no one would seek to stop the automobile because it might put horse-and-buggy drivers out of work.

I wrote my dissertation about telegraphy in the Middle East, and spent more time than I cared to in the archives of the Institute of Electrical and Electronics Engineers. Perhaps some telegraph workers cried foul with the advent of radio, but no judge sought to mandate continued adherence to the wires. For all their lip service to “green energy,” utility companies dislike the fact that consumers can install their own solar panels and thus make themselves less reliant on the traditional energy giants. More power in such cases to the consumers and the marketable solar installation kits. Both email and private companies like FedEx and UPS have eaten into the profits of the U.S. Postal Service, but no one suggests banning them. Should driverless cars hit the market, whole industries—from auto insurance companies to parking garages—might go out the window along with that talking lizard from late night television commercials.

Change can be disconcerting, but it should not be the job of regulators to stymie innovation, even if it threatens whole industries. Nor should politicians expect that new technologies should abide by outdated regulatory systems. If taxi drivers want to defeat Uber, let them do it by serving the customer better, not by crying to judges and politicians. And if Uber leaves some consumers with a bad taste in their mouth—as some drivers have—then let them fall to the resurgence of more user-friendly taxis or the next generation of competitor.

Read Less

The Nanny State’s Bad Medicine

Two years ago the BBC ran a story about health and the government whose headline perfectly captured the promise and peril of the scientific breakthroughs in genetics: “NHS must prepare for the genetic revolution, report says.” Describing the developments in genetic testing and research as revolutionary is apt. The illumination of ancestry and the possibility of preparing for and preventing a range of diseases and conditions–cancer among them–could not come soon enough.

But the other part of that headline that was important was the focus of the story: how the government-run health bureaucracy wasn’t ready for the revolution, and the danger such unpreparedness posed. Those glancing across the pond at the BBC’s reporting might have expected what transpired in the U.S. recently, culminating yesterday in a setback for public health, scientific breakthrough, and individual rights, all brought to you by the Food and Drug Administration. The FDA has been standing athwart medical history yelling stop, and for now history has agreed to stop–or at least slow down.

The basic story is this: a biotech startup called 23andMe sells spit kits–saliva collection tubes, essentially–for $99 a piece and runs genetic tests on the samples. The near-term benefits are obvious: users have an affordable way to screen for genetic predispositions. The long-term benefits stem from the (if successful and popular enough) database of genetic health and ancestral information. When Time magazine lauded the product in 2008 (it was more expensive and still finding its place), it noted:

Read More

Two years ago the BBC ran a story about health and the government whose headline perfectly captured the promise and peril of the scientific breakthroughs in genetics: “NHS must prepare for the genetic revolution, report says.” Describing the developments in genetic testing and research as revolutionary is apt. The illumination of ancestry and the possibility of preparing for and preventing a range of diseases and conditions–cancer among them–could not come soon enough.

But the other part of that headline that was important was the focus of the story: how the government-run health bureaucracy wasn’t ready for the revolution, and the danger such unpreparedness posed. Those glancing across the pond at the BBC’s reporting might have expected what transpired in the U.S. recently, culminating yesterday in a setback for public health, scientific breakthrough, and individual rights, all brought to you by the Food and Drug Administration. The FDA has been standing athwart medical history yelling stop, and for now history has agreed to stop–or at least slow down.

The basic story is this: a biotech startup called 23andMe sells spit kits–saliva collection tubes, essentially–for $99 a piece and runs genetic tests on the samples. The near-term benefits are obvious: users have an affordable way to screen for genetic predispositions. The long-term benefits stem from the (if successful and popular enough) database of genetic health and ancestral information. When Time magazine lauded the product in 2008 (it was more expensive and still finding its place), it noted:

We are at the beginning of a personal-genomics revolution that will transform not only how we take care of ourselves but also what we mean by personal information. In the past, only élite researchers had access to their genetic fingerprints, but now personal genotyping is available to anyone who orders the service online and mails in a spit sample. Not everything about how this information will be used is clear yet — 23andMe has stirred up debate about issues ranging from how meaningful the results are to how to prevent genetic discrimination — but the curtain has been pulled back, and it can never be closed again. And so for pioneering retail genomics, 23andMe’s DNA-testing service is Time’s 2008 Invention of the Year.

But sentences like “the curtain has been pulled back, and it can never be closed again” are read as dares by the federal bureaucrat, drunk with power and disdainful of the liberation of information. Challenge accepted, said the FDA, which set out to close that curtain. The FDA decided the spit kits were medical “devices” under the law and therefore 23andMe was required to jump through all the regulatory hoops associated with that finding. For now, the company will “discontinue consumer access to its health-related genetic tests during the ongoing regulatory review process.”

Now, in the FDA’s defense, that’s certainly a plausible categorization under the letter of the law. Additionally, 23andMe was far from cooperative–indeed, the company seemed positively dismissive of the FDA’s authority. That may be warranted, but it’s also not a great business strategy.

But even if you accept the spit tube’s categorization of a medical device, there are two major problems with that. The first is outlined by Ezra Klein, in an excellent column that harkens back to the point about the BBC’s two-year-old warning to the NHS:

“The legal question is pretty simple,” said Daniel Carpenter, author of “Reputation and Power: Organizational Image and Pharmaceutical Regulation at the FDA.” The definition of a device under the Federal Food, Drug and Cosmetics Act, Carpenter said, “is anything intended for the use or diagnosis of a disease or other conditions.”

But the FFDC was passed in 1938. The section on medical devices was updated in 1976. The personal genetic test — and the theory of personal medicine behind it — didn’t exist when the regulations were written.

The point Klein makes is that the regulatory infrastructure clearly needs rethinking to adapt to new realities. Adaptation and logic, however, are not the bureaucracy’s strong suits. The other problem with the FDA’s approach is that the agency seems to be using the medical device rule as a technicality on which to address its real concerns. Here’s the FDA’s explanation:

Some of the uses for which PGS is intended are particularly concerning, such as assessments for BRCA-related genetic risk and drug responses (e.g., warfarin sensitivity, clopidogrel response, and 5-fluorouracil toxicity) because of the potential health consequences that could result from false positive or false negative assessments for high-risk indications such as these. For instance, if the BRCA-related risk assessment for breast or ovarian cancer reports a false positive, it could lead a patient to undergo prophylactic surgery, chemoprevention, intensive screening, or other morbidity-inducing actions, while a false negative could result in a failure to recognize an actual risk that may exist. Assessments for drug responses carry the risks that patients relying on such tests may begin to self-manage their treatments through dose changes or even abandon certain therapies depending on the outcome of the assessment.

In other words, a customer will self-treat or self-medicate. But is that so realistic? Do potential breast cancer patients perform their own surgeries? Would they just snap their fingers and instantly be on chemotherapy? The reality is that they would consult with a doctor, perhaps several, on the road to such treatment, which if initiated would be recommended and supervised by medically-trained experts and professionals.

And as Reason’s Ronald Bailey points out, “Researchers around the world use the same biochip, the Illumina OmniExpress Plus, that 23andMe uses and find that it provides highly accurate results” and that the FDA approves tests with less-than-stellar accuracy rates.

Further, there is the thorny issue of the government overregulating your ability to access information about yourself. Is it the government’s place to put such information under (expensive) lock and key? And what about the research this puts on ice, to say nothing of the warning signal this sends to other would-be health startups? Nanny-staters usually defend their trespassing by casting themselves as defenders of public health. In this case, they are the obstacles.

Read Less

What Congress?

I’ve written in recent months about the antidemocratic trend of the government “legislating” not through the Congress but through unelected, unaccountable bureaucrats. To be sure, federal agencies often have the appropriate delegated authority to set regulations, but it has become far too common for the executive branch to empower bureaucrats specifically to get around the fact that their objectives would be or have been rejected through the democratic process.

Because liberals are far more enamored of the regulatory state than conservatives are, and because we currently have divided government, the temptation to do this has been especially great for President Obama. As I argued in July, this was key to understanding why Democratic Senate Majority Leader Harry Reid was threatening to “go nuclear” and change Senate rules on the fly to eliminate the filibuster for certain executive branch nominees–not over judicial nominees or legislation. Today, the Hill provides us with a story that confirms this:

Read More

I’ve written in recent months about the antidemocratic trend of the government “legislating” not through the Congress but through unelected, unaccountable bureaucrats. To be sure, federal agencies often have the appropriate delegated authority to set regulations, but it has become far too common for the executive branch to empower bureaucrats specifically to get around the fact that their objectives would be or have been rejected through the democratic process.

Because liberals are far more enamored of the regulatory state than conservatives are, and because we currently have divided government, the temptation to do this has been especially great for President Obama. As I argued in July, this was key to understanding why Democratic Senate Majority Leader Harry Reid was threatening to “go nuclear” and change Senate rules on the fly to eliminate the filibuster for certain executive branch nominees–not over judicial nominees or legislation. Today, the Hill provides us with a story that confirms this:

President Obama has assembled a new cadre of lieutenants to enact policy shifts through regulation during his second term.

Many of the agency heads and top-ranking officials will be tasked with implementing scores of federal rules that will help shape Obama’s legacy. 

“In general, in a political environment in which passing new legislation is very difficult, most of the policy action is likely to come through actions taken within the executive branch,” said Philip Wallach, a fellow at the Brookings Institution. “Much of that is going to be regulation.”

The “centerpiece” of this regulatory onslaught, the Hill tells us, will be new carbon emissions rules designed to address global warming. This was so unpopular and politically untenable that Obama couldn’t get cap-and-trade legislation passed early in his first term when Democrats controlled both houses of Congress. After former Environmental Protection Agency director Lisa Jackson left her post for a job with Apple, I wrote about her history of authoritarian regulation, which no doubt put her on the administration’s radar years ago. I quoted Joseph Rago’s characterization of her as “an especially abusive and willful regulator, even for the Obama administration, and her epic rule-making bender continues to drag on economic growth.”

So it’s no surprise that the EPA figures so strongly into Obama’s plans to replace Congress with his unaccountable apparatchiks at the agency. More interesting, and more controversial, is another agency the Hill claims will be involved in this:

In the span of three days in mid-July, the Senate confirmed Labor Secretary Thomas Perez, Consumer Financial Protection Bureau (CFPB) Director Richard Cordray and Environmental Protection Agency (EPA) Administrator Gina McCarthy.
 
All three oversee agencies with significant rulemaking authority, and are seen as likely to regulate with gusto….

Observers expect the two-year-old CFPB to remain on the offensive as officials tackle new regulations for prepaid cards, debt services and payday loans.
 
“I don’t think its going to be like this forever but I think in the near term, while Cordray is in office, I can’t imagine that he’s going to take his foot off the accelerator,” said Alan Kaplinsky, a partner at the law firm of Ballard Spahr.

Now why would Cordray work so feverishly to cement his vision of the regulatory state? Because, as the Hill reminds us, Cordray was appointed “in controversial fashion.” Republicans were opposed to confirming Cordray, so Obama declared the Senate to be in “recess” when it unquestionably was not and then made a recess appointment. As Adam White explained, and as his headline blared, this was “An Unconstitutional Appointment to an Unconstitutional Office.” Yes, per the Hill, it was a “controversial” appointment, but it was also a delusional exercise of nonexistent power by a supposed constitutional law expert.

Cordray’s appointment was made on the same day as other magical “recess” appointments that the courts have rightly ruled unconstitutional, and on which the Supreme Court will eventually rule. That casts doubt on whether Cordray’s appointment will escape judicial oversight. In the meantime, he is going full speed ahead so that if his appointment is invalidated his unconstitutional power grab will be difficult to untangle.

And although President Obama’s obsession with control would suggest that these regulations are getting his careful consideration, the Hill story indicates otherwise. When the president was approached by a Republican senator recently about various regulations, he was told to talk instead to Denis McDonough, the chief of staff, who “has emerged as a major player in regulatory decisions.”

Should the American people be worried that McDonough has only been chief of staff since January, and is thus not terribly experienced in this regard? Not at all–the Hill tells us that before coming to the White House, McDonough worked at the liberal Center for American Progress as a global warming advocate. Were the senator’s concerns even addressed by McDonough? Apparently the senator followed up but “there has been no response from the White House.” That, I suppose, is to be expected; in this regulatory strategy, the existence of Congress is irrelevant. It follows that the concerns of a member of Congress would be treated as such.

Read Less

Bag Law Backlash Hits Montco

I’ve written twice before about the bag tax in Montgomery County, Maryland. In short, the county government overwhelming implemented a 5-cent tax on both paper and plastic bags, not only at supermarkets but also for take-out from restaurants and any retail. The purpose, local politicians said, was to reduce plastic bag litter in local waterways.

Living in Montgomery County, but only a short drive away from Virginia, I take most of my major shopping to Virginia nowadays—I figure that over the last 18 months, that’s come out to a couple thousand dollars I’d otherwise have spent locally. Not only do I resent the nickel-and-diming and paternalism—fine litterers, not those who haven’t littered—but I also use the plastic bags for any number of things: disposing of my daughter’s dirty diapers and Neocatservative’s dirty litter; preventing thawing chicken or fish from leaking in the refrigerator, and other random tasks.

Now, it seems, some Montgomery County politicians are waking up to the fact that such taxes breed resentment.

Read More

I’ve written twice before about the bag tax in Montgomery County, Maryland. In short, the county government overwhelming implemented a 5-cent tax on both paper and plastic bags, not only at supermarkets but also for take-out from restaurants and any retail. The purpose, local politicians said, was to reduce plastic bag litter in local waterways.

Living in Montgomery County, but only a short drive away from Virginia, I take most of my major shopping to Virginia nowadays—I figure that over the last 18 months, that’s come out to a couple thousand dollars I’d otherwise have spent locally. Not only do I resent the nickel-and-diming and paternalism—fine litterers, not those who haven’t littered—but I also use the plastic bags for any number of things: disposing of my daughter’s dirty diapers and Neocatservative’s dirty litter; preventing thawing chicken or fish from leaking in the refrigerator, and other random tasks.

Now, it seems, some Montgomery County politicians are waking up to the fact that such taxes breed resentment.

The county has never established metrics to track whether the bag tax has led to fewer bags in waterways, and has never explained why paper should also be excluded. Nor have the bag tax advocates—those who pretend it’s about the environment and not county coffers—explained why retailers’ bags should be excluded when they seldom if ever find themselves in streams: I’ve never seen a heavy Bed, Bath, and Beyond or Macy’s bag floating in the wind. Now some of the same councilmen who voted in favor of the tax want to start moderating it by, for example, excluding restaurants and retailers.

According to a local news site:

Berliner, a co-sponsor of the bill, said while he still supports the goal of the original bag tax, enacted on Jan. 1, 2012, he thinks requiring people to carry reuseable bags into a hardware store or a Nordstroms to avoid the five-cent fee only breeds resentment. “One small retailer in downtown Bethesda said, ‘We have a number of customers who get angry with us because of a law Montgomery County has imposed on us,’” testified Ginanne Italiano, President of the Greater Bethesda-Chevy Chase Chamber of Commerce. “‘They leave very frustrated, not because of the five cents, but because of a law that makes us charge five cents for a paper bag when it’s the plastic bags that are causing the pollution.’”

Note to politicians: Whether red light cameras programmed to ticket stopped cars, fining farmers for selling raw milk to out-of-state visitors, or overreaching bag laws, no one likes predatory government.

Read Less




Welcome to Commentary Magazine.
We hope you enjoy your visit.
As a visitor to our site, you are allowed 8 free articles this month.
This is your first of 8 free articles.

If you are already a digital subscriber, log in here »

Print subscriber? For free access to the website and iPad, register here »

To subscribe, click here to see our subscription offers »

Please note this is an advertisement skip this ad
Clearly, you have a passion for ideas.
Subscribe today for unlimited digital access to the publication that shapes the minds of the people who shape our world.
Get for just
YOU HAVE READ OF 8 FREE ARTICLES THIS MONTH.
FOR JUST
YOU HAVE READ OF 8 FREE ARTICLES THIS MONTH.
FOR JUST
Welcome to Commentary Magazine.
We hope you enjoy your visit.
As a visitor, you are allowed 8 free articles.
This is your first article.
You have read of 8 free articles this month.
YOU HAVE READ 8 OF 8
FREE ARTICLES THIS MONTH.
for full access to
CommentaryMagazine.com
INCLUDES FULL ACCESS TO:
Digital subscriber?
Print subscriber? Get free access »
Call to subscribe: 1-800-829-6270
You can also subscribe
on your computer at
CommentaryMagazine.com.
LOG IN WITH YOUR
COMMENTARY MAGAZINE ID
Don't have a CommentaryMagazine.com log in?
CREATE A COMMENTARY
LOG IN ID
Enter you email address and password below. A confirmation email will be sent to the email address that you provide.