Tag: news

Next month the U.S. Supreme Court will hear oral argument in
Comptroller v. Wynne, a case arising out of Maryland’s
efforts to collect personal income tax from state residents whose
income is partially earned—and taxed—outside of the state. As Santa
Clara University law professor Bradley W. Joondeph
observes at SCOTUSblog, this case presents a “collision between
the imperatives of state sovereignty and free markets—between the
states’ autonomy in matters core to their separate existence, and
the axiom that commerce among the states must be protected from
parochial trade barriers.”

The constitutional issue presented by this case is what’s known
as the dormant Commerce Clause. It says that in addition to
granting Congress the power to regulate interstate commerce, the
Commerce Clause also imposes an independent and judicially
enforceable limit on the power of the states to erect interstate
trade barriers. Under this reading of the Constitution, the dormant
Commerce Clause mandates what we might call a domestic free trade
zone. If a state law trumpets intrastate commerce at the expense of
interstate commerce, it should be struck down.

Maryland residents Brian and Karen Wynne are part-owners of a
business called Maxim Healthcare Services. They earn income from
that business, and pay taxes on it, in more than 30 states. Yet
Maryland expects them to pay personal income taxes on 100 percent
of that income, regardless of the taxes they’ve already paid on it
in other states. To give some perspective, unlike Maryland, most
states offer a tax credit to their residents when it comes to
personal income earned and taxed elsewhere.

The Wynnes argue that Maryland is violating the dormant Commerce
Clause because it imposes a harsher tax regime on people like them
than it does on those residents whose income is earned entirely
within the state. “The State’s tax scheme discourages interstate
commerce,” the Wynnes argue in their
brief to the Supreme Court, “by penalizing tens of thousands of
small businesspeople and business owners for operating across state
lines.”

Maryland, by contrast,
asserts that “the Constitution does not require a state to
subordinate its own legitimate taxing authority to the taxing
authority of other states.” In effect, the state argues, if
Maryland (or any other state) wants to impose multiple taxes on the
personal income of its residents, the Supreme Court has no business
standing in the way.

How might the Supreme Court settle this dispute? At the Law
& Liberty blog, Michael S. Greve worries that the Court may
well let
“the Taxman Cometh, Twice.” He writes:

Barring a major revamp of this jurisprudence, it’s hard to see
how the Wynnes can lose. The state court got this right, and
there’s no conflict with binding decisions elsewhere. So why did
the Supreme Court—which grants cert to state courts only
in exceedingly rare cases—yank this case up?

I have a fear: in a string of cases, Justice Thomas and Justice
Scalia have argued, both with characteristic force and clarity,
that the entire dormant Commerce Clause is completely made up.
(Justice Thomas seems prepared to jettison it altogether.) To their
minds, the doctrine is an extra-textual invention—an interstate
version of Lochner, and a constitutional common law rule
of the sort that we’re not supposed to have. The Chief has
expressed sympathy with that view. Maybe they found a fourth vote
to grant cert.”

We’ll see. Oral argument in Comptroller v. Wynne is
scheduled for November 12.

Vote for inertia. Vote to keep bad public
policy from getting worse. Vote Democrat November 4. Because,
like Seinfeld, made-for-cable Decision
2014 is a political show about nothings,
says former Democratic National Committee Press Secretary and
current Washington Center for Politics & Journalism
Director Terry Michael. Short of a coup d’etat assault on The
Homeland (über alles!) by The Terrorists or collapse of Western
Civilization from failure to fully fund the “we’re all gonna die”
Ebola Fighters at the CDC/CNN (same thing), we will have a
Democratic president and a Republican House of Representatives from
January 3, 2015. But what about the Senate, though? Michael argues
that believers in free markets and free minds would be served best
by keeping the upper house under modest Democratic control.

View this article.

The “Libertarian Moment” proceeds apace, writes
Ilya Somin at The Washington Post‘s Volokh Conspiracy
blog, as asset forfeiture takes center stage in policy debates:

As in the case of drug legalization, asset forfeiture reform is
a cause long-championed by libertarians, which has recently hit the
mainstream. The Institute for Justice,
a prominent libertarian public interest law firm,
has highlighted the issue for years, and is currently
spearheading both legal and legislative challenges to the system.
Similarly, libertarians have for decades advocated abolishing the
War on Drugs; at times, they were almost the only ones doing so,
with the exception of a few on the far left. But only recently has
this idea begun to attract widespread
mainstream public and elite support.

Somin, who teaches law at George Mason University, occasionally
contributes
to Reason, and is regularly cited in our
pages, sagely notes:

…libertarians have successfully helped put these issues on the
political agenda, it remains to be seen whether they and their new
allies on the left and right will be able to push through effective
reforms. In both cases, there is a danger that newfound public
interest in the issue will be quiesced by merely cosmetic changes
that only marginally improve the situation. And, obviously, the
majority of non-libertarians do not – so far – fully endorse the
libertarian approach to these issues, which calls for the complete
abolition of both civil asset forfeiture and the War on Drugs.
Still, the two cases are dramatic examples of previously
marginalized libertarian ideas becoming a part of mainstream
political discourse.

Read the full thing.

He’s right to fret that real reform will be difficult to achieve
(often a pessimist, he remains a skeptic of whether state-level
eminent-domain reforms have worked).

But his larger point about libertarian ideas being mainstreamed
is inarguable and cause for optimism. It’s essential to recognize
that what we at Reason.com call the Libertarian Moment (or
Era) is not fundamentally about politics but about larger
currents in American and society that will ultimately
inform politics and policy.

Growing out a huge set of
massive and inter-connected social, demographic, economic, and
technological changes, the Libertarian Moment is about power being
spread throughout the system and end-users making more and more
decisions about how they want to live. When Matt Welch and I first
started yapping about the Libertarian
Moment back in December 2008, we were in the throes of the
financial panic. George W. Bush was launching TARP and auto
bailouts, both of which came only after endless incursions on
choice and freedom in the political arena. Barack Obama had just
won the White House (giving the Democrats full legislative control
of the federal government) on the promise of massive stimulus
spending and a national health system. The point isn’t that there
are not endless examples of expansive government.
It’s that

folks are still getting on with their lives regardless, asking
less permission and figuring out workarounds to live the lives they
prefer (this is the large point of my and Matt
Welch’s Declaration
of Independents). And if you don’t understand that such
attitudes are growing and flourishing in every aspect of
contemporary America—in churches, in business, in education, in
entertainment, you name it—you’ll never understand that it’s coming
soon to politics too.

This is where we are, even as a largely unreconstructed GOP is
poised to capture the Senate. Libertarian issues and sentiments are
popping up all over the place in spite of attempts by pols and
partys and vested interests to maintain the status quo. Such issues
and sentiments have already swept through virtually all aspects of
American life: work, love, family, culture, you name it—all are
more varied, expressive, and accommodating of difference and choice
than ever before. Politics is the endgame and it’s already
underway.

In my recent analysis of

voter initiatives appearing on November ballots across the
country, I took very brief note of a pending decision in Arkansas.
Voters in the state will decide whether to change the law to
require all counties to allow the
sale, distribution and transportation of alcohol. Currently,
counties and communities call the shots. About half allow and half
do not. 

Naturally, this means that those who serve or sell alcohol in
the “wet” counties financially benefit from being next to “dry”
counties that prohibit it. Therefore existing liquor stores and
bars in the state are fighting the ballot initiative, and they’re
teaming up with local religious leaders, according to Bloomberg
news. One liquor store estimates it will lose ten percent of its
sales if nearby counties are required to allow booze. Opponents of
the ballot initative are attempting to argue its about choice,

not about bans:

Larry Page, a Southern Baptist pastor and director of the
Arkansas Faith and Ethics Council, which traces its roots to the
Anti-Saloon League of Arkansas in 1899, said the initiative is
about more than just the dangers of alcohol.

“We’re not saying, ‘Hey, instead of voting the whole state wet,
let’s vote the whole state dry,'” he said. “We’re just saying, ‘Let
people locally continue to make the decision.'”

It’s not the first time political issues have made for strange
bedfellows, Page said, recalling when his group joined with
feminists to oppose pornography and cooperated with Mississippi
casinos to fight gambling in Arkansas.

A defense of bans that can be summarized as “Let’s let the
community decide whether certain types of commerce should be
allowed,” has been used elsewhere. Colorado Democratic Rep. Jared
Polis used such an argument when he introduced (but later
withdrew) ballot initiatives in his state that would allow
cities to
ban fracking. After California legalized medical marijuana
dispensaries, individual cities had battles on their hands to
decide whether they would allow them.

“Let the community decide” has a certain small government appeal
to it, but let’s not forget that sometimes what the community is
deciding is whether they’ll respect the rights of others to engage
in commerce or to do what they wish with their own property. And as
in this case, we generally see the argument used to curtail
people’s rights, not to advance recognition of them.

(Hat tip to Scott
Lincicome)

So far,
the essence of Obamacare has been delivering inferior products at
higher prices. On its face this may seem like a standard,
garden-variety failure of progressive statism. But the Obamacare
mess isn’t simply a problem of the left; the right is complicit,
too, writes Daniel Payne. 

The star reform effort that Republicans put forward in 2012
proposed a healthcare plan that was, at its core, functionally
identical to Obamacare. What libertarians and conservatives
should do, argues Payne, is dispense with any notion of moderation
and offer a serious set of proposals to strip away the deleterious
effects of government meddling in the healthcare market.
Meanwhile, the left should get away from the messy and embarrassing
disaster of Obamacare and instead advocate for what it truly
desires: a government-administered, single-payer healthcare
system. 

View this article.