Sin taxes allow politicians to condemn certain activities while simultaneously profiting from them. As Michael Thom shows in Taxing Sin, that’s just one of the puzzles these levies pose.
A popular justification for taxing alcohol, tobacco, and soda is that it forces consumers to internalize costs they would otherwise impose on others. But that social burden supposedly includes “lost productivity,” a cost consumers already bear. And while sin taxers emphasize the life-shortening impact of the choices they target, their balance sheets usually ignore the resulting savings from reduced public spending on Social Security and old-age health care.
They are also unfazed by the fact that sin taxes tend to overdeter moderate consumers while underdeterring heavy consumers, who are responsible for the lion’s share of social costs. These taxes are not just poorly targeted but also notoriously regressive, hurting most the poor and vulnerable people whom politicians claim to be helping.
Thom, who teaches public policy at the University of Southern California, suggests sin taxes can be understood as the secularized sale of indulgences. Yet that expiation is illusory, since the government continues to nag and shame people for making the wrong choices even after they have paid for the privilege.
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Sin taxes allow politicians to condemn certain activities while simultaneously profiting from them. As Michael Thom shows in Taxing Sin, that’s just one of the puzzles these levies pose.
A popular justification for taxing alcohol, tobacco, and soda is that it forces consumers to internalize costs they would otherwise impose on others. But that social burden supposedly includes “lost productivity,” a cost consumers already bear. And while sin taxers emphasize the life-shortening impact of the choices they target, their balance sheets usually ignore the resulting savings from reduced public spending on Social Security and old-age health care.
They are also unfazed by the fact that sin taxes tend to overdeter moderate consumers while underdeterring heavy consumers, who are responsible for the lion’s share of social costs. These taxes are not just poorly targeted but also notoriously regressive, hurting most the poor and vulnerable people whom politicians claim to be helping.
Thom, who teaches public policy at the University of Southern California, suggests sin taxes can be understood as the secularized sale of indulgences. Yet that expiation is illusory, since the government continues to nag and shame people for making the wrong choices even after they have paid for the privilege.
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Scottish police gave Maureen Hogg, 82, a £60 ($83 U.S.) fine for breaking a COVID-19 curfew by attending a friend’s 70th birthday party. Hogg’s granddaughter says Hogg has been vaccinated for the disease as were all of the other attendees at the party. Those people were also fined by police for attending the party.
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Scottish police gave Maureen Hogg, 82, a £60 ($83 U.S.) fine for breaking a COVID-19 curfew by attending a friend’s 70th birthday party. Hogg’s granddaughter says Hogg has been vaccinated for the disease as were all of the other attendees at the party. Those people were also fined by police for attending the party.
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The Florida Supreme Court today nixed a proposed 2022 marijuana legalization initiative, saying the ballot summary “misleads voters into believing that the recreational use of marijuana in Florida will be free of any repercussions, criminal or otherwise.” That highly implausible reading is based on the assumption that Florida voters would believe they had the power to change federal law by approving a state ballot initiative.
The ballot summary for the Florida Marijuana Legalization and Medical Marijuana Treatment Center Sales Initiative says it “permits adults 21 years or older to possess, use, purchase, display, and transport up to 2.5 ounces of marijuana and marijuana accessories for personal use for any reason.” Not so, the court says in a 5–2 advisory opinion, since such conduct would still be prohibited by federal law. In reality, the initiative only eliminates civil and criminal penalties under state law.
“A constitutional amendment cannot unequivocally ‘permit’ or authorize conduct that is criminalized under federal law,” the majority says. “And a ballot summary suggesting otherwise is affirmatively misleading.”
That view jibes with the position taken by Florida’s Republican attorney general, Ashley Moody, who sought the advisory opinion. “This initiative suggests to voters that their vote will allow for conduct that will remain illegal with significant penalties,” she said.
Under the standard favored by Moody and the court, the ballot summaries for many legalization initiatives that voters in other states have approved in the last decade likewise were “affirmatively misleading.” Colorado’s 2012 initiative, the first successful measure of its kind, was described as “permitting a person twenty-one years of age or older to consume or possess limited amounts of marijuana.” The summary for Alaska’s 2014 initiative said it “would allow a person to possess, use, show, buy, transport, or grow set amounts of marijuana.”
California’s 2016 initiative purported to achieve “marijuana legalization,” which according to the Florida Supreme Court was blatantly inaccurate in light of continued federal prohibition. Michigan’s 2018 initiative aimed to “authorize and legalize possession, use and cultivation of marijuana products by individuals who are at least 21 years of age.” Voters who approved Arizona’s 2020 initiative were told it would “allow limited marijuana possession, use, and cultivation by adults 21 or older.”
I could go on, but you get the idea. Did voters in these and other states imagine that by approving these initiatives they were somehow amending the Controlled Substances Act, removing marijuana from the list of federally prohibited drugs? Probably not.
The ballot summary for the medical marijuana initiative that Florida voters approved in 2016 said it “allows medical use of marijuana for individuals with debilitating medical conditions as determined by a licensed Florida physician.” According to the logic of today’s opinion, that language was “affirmatively misleading” because it failed to note that the federal government does not allow marijuana use for any purpose.
Under the court’s precedents, Justice Alan Lawson says in his dissent, judicial review of ballot language “presumes that voters possess a rudimentary knowledge of their government’s structure and of the laws governing their conduct.” That means they “know what constitutes a federal crime” and recognize that “no state law—not even a state constitution—can override federal law.” Lawson calls the majority’s assumption of voter ignorance a “direct violation of the deferential, nonpaternalistic rules and presumptions that have historically governed our decisions in this area.”
State law requires that ballot summaries “explain the Florida constitutional change—with no requirement that the summary provide an explanation of secondary ramifications of the proposed amendment,” Lawson says. “Accordingly, we have ‘never required that a ballot summary inform voters as to the current state of federal law [or] the impact of a proposed state constitutional amendment on federal statutory law.’…It should be intuitively obvious to most that the majority’s condemnation of this summary for not explaining federal law is logically irreconcilable with…our precedent stating that the summary need only explain the Florida constitutional change being proposed.”
Lawson notes that “the proposed amendment itself expressly states that certain actions are ‘permitted,'” while “the ballot summary says that the amendment ‘[p]ermits’ those actions….In an extraordinarily rare occurrence for this Court, we are declaring a summary to be misleading even though it accurately describes the effect of the amendment using the same operative language as used in the amendment itself.” He concludes that “today’s decision underestimates Florida voters and adds hurdles to the citizen-initiative process that are not supported by the plain language of the governing law or our precedent.”
Make It Legal Florida, the organization backing the initiative, “had raised $8.2 million for the effort and had gathered more than 556,000 signatures out of the 891,589 needed for it to make the 2022 ballot,” The Miami Heraldreports. Legalization supporters will now have to start over.
Ben Pollara, who ran the successful 2016 campaign to legalize medical marijuana in Florida, said today’s opinion reflects the influence of the three justices appointed by Republican Gov. Ron DeSantis, all of whom joined the majority. Recent polls put public support for legalization in Florida near or above 60 percent, the threshold for constitutional amendments. “Floridians would legalize marijuana tomorrow if given the opportunity to do so,” Pollara said, “but that’s clearly not what Tallahassee wants.”
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On Tuesday, the Los Angeles County Board of Supervisors voted 5-0 to return the property to the descendants of Willa and Charles Bruce.
The Bruces bought the first of two ocean-view lots for $1,225, a property that could now be worth millions.
In 1924, the city of Manhattan Beach used eminent domain to force the couple off their land to turn it into a park. The city seized the property in 1929, however, it remained vacant for decades.
Following Tuesday’s vote, the Los Angeles County Chief Executive Office will file a report within 60 days with a plan and timeline to return the property to the Bruce family….
“This was an injustice inflicted upon not just Willa and Charles Bruce, but generations of their descendants who almost certainly would have been millionaires if they had been able to keep this property and their successful business,” Los Angeles County District 4 Supervisor Janice Hahn said. Hahn’s district includes the Manhattan Beach property to be returned to the family….
“This was an injustice inflicted upon not just Willa and Charles Bruce, but generations of their descendants who almost certainly would have been millionaires if they had been able to keep this property and their successful business,” Los Angeles County District 4 Supervisor Janice Hahn said. Hahn’s district includes the Manhattan Beach property to be returned to the family.
The injustice the County is trying to remedy is a real one. City authorities seized the Bruce family’s valuable property for what turned out to be no good purpose.
Media accounts of this case tend to assume that the land must have been condemned at least in part because of racial bias. That is entirely plausible. There is a long history of using eminent domain, zoning, and various other types of land-use restrictions to force out African-Americans. At the same time, it is possible that race was not the decisive factor in this particular case, since 25 of the 30 lots condemned for this project were owned by whites.
Whether motivated by racism or not, the takings were still deeply unjust. Destroying homes and business for a park that was never built is indefensible.
How much justice can be achieved by giving the land to the Bruce family’s descendants almost a century later is debatable. The original victims of the injustice are long-dead. Some of their descendants are still alive, and it can be argued, as County officials have, that these descendants would be millionaires today, if only the property had stayed in the family.
Perhaps that is true. But, if history had taken a different, more just, course, these particular descendants probably would never have been born in the first place. Even a slight change in the course of events is enough to prevent a particular sperm and egg form meeting at a given time, and therefore prevent the birth of a specific person. The Bruce family might well still have descendants in this counterfactual world. But they would almost certainly be different people from those that exist in our world, today.
This problem is not unique to the Manhattan Beach case. It bedevils almost any effort to provide restitution for injustices that occurred many decades or centuries in the past. An example from my own family history illustrates the problem.
Back in 1918, the newly installed communist government of the Soviet Union unjustly seized my great-grandfather’s small business (and, of course, many others like it). Returning the land to me and his other descendants today is a questionable remedy. After all, neither I nor his other living descendants would ever have existed had history taken a different course back then.
These problems should not prevent compensation of still-living victims of historic injustices, or children of theirs born before the injustice occurred. But the further removed in time we are from the injustice in question, the more likely it is that the only people we can provide compensation to are ones that probably would never have existed at all if the injustice had never been committed.
The obvious lesson here is that it is essential to avoid perpetrating such injustices to begin with. If they are committed, nonetheless, it is essential to provide restitution sooner, rather than later. Getting around to it many decades after the fact is simply too late.
But while it may be impossible to truly reverse the wrong committed in Manhattan Beach back in 1924, there is much to be done to prevent similar wrongs today. Sadly, the use of eminent domain to seize property for projects that never pan out, remains all too common.
In my view, takings for projects that never get built violate the constitutional requirement (embedded in both the Fifth Amendment of the Federal Constitution and similar clauses in virtually every state constitution) that eminent domain can only be employed for a “public use.” There can be no “public use” where the supposed purpose of the taking was never carried out, and especially not if this failure is predictable at the time of the taking. Even those who believe that “public use” should be defined broadly, should be able to agree that the government at least has a duty to take property only in cases where the claimed public use will actually occur.
State and federal courts should therefore crack down on takings of this type, by requiring the government to provide strong evidence that the condemned land really will be used for the project that supposedly justifies the use of eminent domain in the first place. Some states already have fairly strong enforcement of such constraints. But many do not. If judges are unwilling or unable to take this step, legislatures can enact reforms to the same effect.
Fixing this problem will not end all problematic takings. Eminent domain abuse is a complex, multifaceted issue that cannot be addressed through any one single reform. But preventing future takings like the one in Manhattan Beach would be a good place to start. The best way to deal with unjust takings is to prevent them from happening in the first place.
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The Florida Supreme Court today nixed a proposed 2022 marijuana legalization initiative, saying the ballot summary “misleads voters into believing that the recreational use of marijuana in Florida will be free of any repercussions, criminal or otherwise.” That highly implausible reading is based on the assumption that Florida voters would believe they had the power to change federal law by approving a state ballot initiative.
The ballot summary for the Florida Marijuana Legalization and Medical Marijuana Treatment Center Sales Initiative says it “permits adults 21 years or older to possess, use, purchase, display, and transport up to 2.5 ounces of marijuana and marijuana accessories for personal use for any reason.” Not so, the court says in a 5–2 advisory opinion, since such conduct would still be prohibited by federal law. In reality, the initiative only eliminates civil and criminal penalties under state law.
“A constitutional amendment cannot unequivocally ‘permit’ or authorize conduct that is criminalized under federal law,” the majority says. “And a ballot summary suggesting otherwise is affirmatively misleading.”
That view jibes with the position taken by Florida’s Republican attorney general, Ashley Moody, who sought the advisory opinion. “This initiative suggests to voters that their vote will allow for conduct that will remain illegal with significant penalties,” she said.
Under the standard favored by Moody and the court, the ballot summaries for many legalization initiatives that voters in other states have approved in the last decade likewise were “affirmatively misleading.” Colorado’s 2012 initiative, the first successful measure of its kind, was described as “permitting a person twenty-one years of age or older to consume or possess limited amounts of marijuana.” The summary for Alaska’s 2014 initiative said it “would allow a person to possess, use, show, buy, transport, or grow set amounts of marijuana.”
California’s 2016 initiative purported to achieve “marijuana legalization,” which according to the Florida Supreme Court was blatantly inaccurate in light of continued federal prohibition. Michigan’s 2018 initiative aimed to “authorize and legalize possession, use and cultivation of marijuana products by individuals who are at least 21 years of age.” Voters who approved Arizona’s 2020 initiative were told it would “allow limited marijuana possession, use, and cultivation by adults 21 or older.”
I could go on, but you get the idea. Did voters in these and other states imagine that by approving these initiatives they were somehow amending the Controlled Substances Act, removing marijuana from the list of federally prohibited drugs? Probably not.
The ballot summary for the medical marijuana initiative that Florida voters approved in 2016 said it “allows medical use of marijuana for individuals with debilitating medical conditions as determined by a licensed Florida physician.” According to the logic of today’s opinion, that language was “affirmatively misleading” because it failed to note that the federal government does not allow marijuana use for any purpose.
Under the court’s precedents, Justice Alan Lawson says in his dissent, judicial review of ballot language “presumes that voters possess a rudimentary knowledge of their government’s structure and of the laws governing their conduct.” That means they “know what constitutes a federal crime” and recognize that “no state law—not even a state constitution—can override federal law.” Lawson calls the majority’s assumption of voter ignorance a “direct violation of the deferential, nonpaternalistic rules and presumptions that have historically governed our decisions in this area.”
State law requires that ballot summaries “explain the Florida constitutional change—with no requirement that the summary provide an explanation of secondary ramifications of the proposed amendment,” Lawson says. “Accordingly, we have ‘never required that a ballot summary inform voters as to the current state of federal law [or] the impact of a proposed state constitutional amendment on federal statutory law.’…It should be intuitively obvious to most that the majority’s condemnation of this summary for not explaining federal law is logically irreconcilable with…our precedent stating that the summary need only explain the Florida constitutional change being proposed.”
Lawson notes that “the proposed amendment itself expressly states that certain actions are ‘permitted,'” while “the ballot summary says that the amendment ‘[p]ermits’ those actions….In an extraordinarily rare occurrence for this Court, we are declaring a summary to be misleading even though it accurately describes the effect of the amendment using the same operative language as used in the amendment itself.” He concludes that “today’s decision underestimates Florida voters and adds hurdles to the citizen-initiative process that are not supported by the plain language of the governing law or our precedent.”
Make It Legal Florida, the organization backing the initiative, “had raised $8.2 million for the effort and had gathered more than 556,000 signatures out of the 891,589 needed for it to make the 2022 ballot,” The Miami Heraldreports. Legalization supporters will now have to start over.
Ben Pollara, who ran the successful 2016 campaign to legalize medical marijuana in Florida, said today’s opinion reflects the influence of the three justices appointed by Republican Gov. Ron DeSantis, all of whom joined the majority. Recent polls put public support for legalization in Florida near or above 60 percent, the threshold for constitutional amendments. “Floridians would legalize marijuana tomorrow if given the opportunity to do so,” Pollara said, “but that’s clearly not what Tallahassee wants.”
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On Tuesday, the Los Angeles County Board of Supervisors voted 5-0 to return the property to the descendants of Willa and Charles Bruce.
The Bruces bought the first of two ocean-view lots for $1,225, a property that could now be worth millions.
In 1924, the city of Manhattan Beach used eminent domain to force the couple off their land to turn it into a park. The city seized the property in 1929, however, it remained vacant for decades.
Following Tuesday’s vote, the Los Angeles County Chief Executive Office will file a report within 60 days with a plan and timeline to return the property to the Bruce family….
“This was an injustice inflicted upon not just Willa and Charles Bruce, but generations of their descendants who almost certainly would have been millionaires if they had been able to keep this property and their successful business,” Los Angeles County District 4 Supervisor Janice Hahn said. Hahn’s district includes the Manhattan Beach property to be returned to the family….
“This was an injustice inflicted upon not just Willa and Charles Bruce, but generations of their descendants who almost certainly would have been millionaires if they had been able to keep this property and their successful business,” Los Angeles County District 4 Supervisor Janice Hahn said. Hahn’s district includes the Manhattan Beach property to be returned to the family.
The injustice the County is trying to remedy is a real one. City authorities seized the Bruce family’s valuable property for what turned out to be no good purpose.
Media accounts of this case tend to assume that the land must have been condemned at least in part because of racial bias. That is entirely plausible. There is a long history of using eminent domain, zoning, and various other types of land-use restrictions to force out African-Americans. At the same time, it is possible that race was not the decisive factor in this particular case, since 25 of the 30 lots condemned for this project were owned by whites.
Whether motivated by racism or not, the takings were still deeply unjust. Destroying homes and business for a park that was never built is indefensible.
How much justice can be achieved by giving the land to the Bruce family’s descendants almost a century later is debatable. The original victims of the injustice are long-dead. Some of their descendants are still alive, and it can be argued, as County officials have, that these descendants would be millionaires today, if only the property had stayed in the family.
Perhaps that is true. But, if history had taken a different, more just, course, these particular descendants probably would never have been born in the first place. Even a slight change in the course of events is enough to prevent a particular sperm and egg form meeting at a given time, and therefore prevent the birth of a specific person. The Bruce family might well still have descendants in this counterfactual world. But they would almost certainly be different people from those that exist in our world, today.
This problem is not unique to the Manhattan Beach case. It bedevils almost any effort to provide restitution for injustices that occurred many decades or centuries in the past. An example from my own family history illustrates the problem.
Back in 1918, the newly installed communist government of the Soviet Union unjustly seized my great-grandfather’s small business (and, of course, many others like it). Returning the land to me and his other descendants today is a questionable remedy. After all, neither I nor his other living descendants would ever have existed had history taken a different course back then.
These problems should not prevent compensation of still-living victims of historic injustices, or children of theirs born before the injustice occurred. But the further removed in time we are from the injustice in question, the more likely it is that the only people we can provide compensation to are ones that probably would never have existed at all if the injustice had never been committed.
The obvious lesson here is that it is essential to avoid perpetrating such injustices to begin with. If they are committed, nonetheless, it is essential to provide restitution sooner, rather than later. Getting around to it many decades after the fact is simply too late.
But while it may be impossible to truly reverse the wrong committed in Manhattan Beach back in 1924, there is much to be done to prevent similar wrongs today. Sadly, the use of eminent domain to seize property for projects that never pan out, remains all too common.
In my view, takings for projects that never get built violate the constitutional requirement (embedded in both the Fifth Amendment of the Federal Constitution and similar clauses in virtually every state constitution) that eminent domain can only be employed for a “public use.” There can be no “public use” where the supposed purpose of the taking was never carried out, and especially not if this failure is predictable at the time of the taking. Even those who believe that “public use” should be defined broadly, should be able to agree that the government at least has a duty to take property only in cases where the claimed public use will actually occur.
State and federal courts should therefore crack down on takings of this type, by requiring the government to provide strong evidence that the condemned land really will be used for the project that supposedly justifies the use of eminent domain in the first place. Some states already have fairly strong enforcement of such constraints. But many do not. If judges are unwilling or unable to take this step, legislatures can enact reforms to the same effect.
Fixing this problem will not end all problematic takings. Eminent domain abuse is a complex, multifaceted issue that cannot be addressed through any one single reform. But preventing future takings like the one in Manhattan Beach would be a good place to start. The best way to deal with unjust takings is to prevent them from happening in the first place.
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The Yale Journal on Regulation has just posted my contribution to the “Notice & Comment” blog symposium on Law & Leviathan by Cass Sunstein and Adrian Vermeule. The other symposium contributions to the symposium may be found here. I perviously blogged on the symposium here.
My contribution to the symposium is title “Defensive Crouch Administrativism.” Here is a taste:
The administrative state is under siege. In Law & Leviathan: Redeeming the Administrative State, Professors Cass Sunstein and Adrian Vermeule attempt a rescue. In the face of a “fundamental assault” on the premises of administrative law—an assault so severe they deploy that description twice within the span of three pages—Sunstein and Vermeule seek to explain why administrative law, in operation, is fundamentally moral and sound. The heart of some modest critiques may be true, they concede, but the leviathan of the book’s title is sufficiently constrained by law to preserve its moral legitimacy.
Rather than offer the full-throated defenses of the administrative state each has offered elsewhere, in Law & Leviathan Sunstein and Vermeule suggest administrative law has developed a set of “surrogate safeguards” that enable the administrative state to protect public welfare while preventing the worst abuses of bureaucratic excess. These safeguards do not derive from constitutional text, however, nor are they to be found in the Administrative Procedure Act (APA), but they are contained in administrative law doctrine as it has developed over the past 70 years. . . .
While situating the origins of such surrogate safeguards in the APA-era, when pointing to examples our authors sometimes focus on more recent doctrinal developments, including some they themselves opposed. As a consequence, parts of their argument seem to be something of a rearguard action, meant to preserve as much of the administrative state—and agency discretion—as can be salvaged in an age in which devotees of the New Coke may seem ascendant. Nowhere is this more clear than with their treatment of Auer deference, under which courts are obligated to defer to an agency’s reasonable interpretation of its own ambiguous regulation.
You can read the whole thing here. I will also have a longer review of their book in Regulation.
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When Minneapolis Police Officer Derek Chauvin was found guilty on all counts of killing George Floyd, it was a victory not just for justice but for free speech—a freedom currently threatened by a bipartisan coalition of federal legislators.
Socolow appreciates how the ubiquity of cell phones and other recording devices has made it easier to capture official malfeasance, but he stresses that the real difference-maker is citizens’ ability to distribute what they capture over platforms such as Twitter, Facebook, and YouTube. These sites are protected by Section 230, the 1996 law that gives websites legal immunity for most user-generated content while also giving them maximum latitude to moderate content as they see fit. Section 230 is often called the “26 words that created the internet” and “the internet’s First Amendment.”
Socolow also tells a fascinating story from a century ago. In Minneapolis (of all places), Jay Near, the rabidly anti-Semitic editor of The Saturday Press, thought the police were part of a Jewish cabal. Near and his partner were blocked under Minnesota’s “public nuisance law” from publishing their admittedly fact-free and defamatory charges, but they ended up winning a landmark Supreme Court case. In Socolow’s words, the Court ruled that “the U.S. Constitution allowed the abuse of press freedom in order to protect the most vibrant and robust public discussion possible.”
Modern press freedom was born with that decision, says Socolow. “Had Minnesota’s Public Nuisance Law survived Near’s challenge,” he writes, it “very well might have prevented publication of [Darnella] Frazier’s video [of Chauvin murdering George Floyd]. Those images could easily have been deemed ‘obscene,’ or a ‘malicious’ or ‘scandalous’ incitement to violence.” Under Section 230, he adds,
For better or worse, Section 230 establishes media freedom across the internet in the U.S. And it is this law, built on the traditions of media freedom, that allowed Darnella Frazier—and all citizens who follow in her footsteps—to stand up to the government in ways previously unimaginable.
Publishers and individuals can be sued for libelous and false allegations once they are made public, but the onus is heavily stacked against presumptively banning such speech, especially when it involves public officials. Socolow’s account shines a harsh light on government actors’ attempts to limit what can be shared online: It’s not about protecting the little people, but those in power.
The direct line from Minneapolis in the 1920s to Minneapolis in the 2020s is the notion that protecting people’s rights promises to foster an active, aware and engaged citizenry—and that violating those rights by repressing or censoring information is deeply anti-American.
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