Co-authored by Lennie Jarratt & Timothy Benson
The Network for Public Education (NPE), an anti-educational choice organization, released a new publication titled “Valuing Public Education: A 50 State Report Card,” which, distressingly, many media outlets are reporting as an honest-to-goodness objective study, instead of the piece of subjective advocacy it truly is.
NPE’s report card is essentially a rating system that attempts to show how well each state is protecting public schools controlled by the state — the government-education complex. In an introduction to the report posted online, Carol Burris, national director for NPE, writes, “Our grades reflect the values that we believe in — stability in the teaching force, a rejection of high stakes testing, small class sizes, integrated schools, preschool education, a recognition that poverty matters and of course a sound rejection of charters, vouchers and other forms of privatization.”
One important category that’s missing from NPE’s list of criteria is students’ educational outcomes. NPE’s ratings reveal absolutely nothing about how students are performing; they were created solely for the purposes of blocking accountability, protecting jobs, increasing salaries and maintaining mediocre standards, all of which is the result of continued government control over the U.S. education system.
A major focus of NPE’s rankings is standardized testing. NPE heavily penalizes states who utilize testing to evaluate progress. If a state tests students to see if they are prepared for the next grade level, the state receives low marks. If a state tests students to see if they are ready for graduation, they receive low marks. If a state wants to hold a teacher or a school accountable for preparing its students, the state receives a low mark. In other words, the NPE report card seeks to ensure parents never know how poorly their children are being taught by protecting the teachers and schools from any accountability for failing to educate them properly.
A second significant focus of the report is the teachers themselves. The rankings reward states that highly value teachers with many years of experience. This is a huge mistake, however, because numerous studies show the amount of time a teacher spends in the classroom is the least effective indicator of how well that educator helps students learn. The most effective indicator is a teacher’s mastery of his or her subject, but NPE’s rankings do not take into account a teacher’s knowledge of the subject matter. It instead relies on certification requirements, university preparedness and seniority to evaluate teachers. These requirements create a semi-closed system by creating costly and time-consuming hoops to jump through. This restrictive system prevents many with subject-matter expertise from entering the classroom and creates a barrier to teacher diversity in the classroom.
A third major factor in NPE’s ratings system is a state’s “resistance to privatization.” NPE praises states that work to restrict educational choice for parents and gives low marks to states that embrace parent-empowering choice programs, such as vouchers and education savings accounts. This ignores the overwhelming evidence supporting the claim school vouchers, education tax credits and education savings accounts have helped thousands of impoverished students escape from the underserved and failing public schools they were once forced to attend.
NPE’s fatal conceit is the same fatal conceit of all those who place their trust in bureaucrats and faraway “experts” over the needs and concerns of the people they purportedly try to serve. As Adam Smith described, “[They] seem to imagine that [they] can arrange the different members of a great society with as much ease as the hand arranges the different pieces on the chessboard.”
If NPE truly wants to improve the U.S. education system, it should support expanding the availability of educational choice programs nationwide. Not only would this be good for children, it would also be beneficial for the nation’s public schools, which would be compelled to find ways to step up their game. The goal should be to allow every parent to choose, require every school — public, private or charter — to compete, and to give every child an opportunity to attend a quality school.
The U.S. Department of Energy has awarded a $40 million grant to Southern Co., which co-owns and operates six nuclear reactors facilities in Alabama and Georgia, to develop Molten Salt Reactors (MSRs). The full $40 million is not guaranteed but rather will be paid out over time if DOE is satisfied with the project’s progress at various stages. In an MSR, the nuclear fuel is immediately dissolved in salt and continuously circulated, creating non-stop fission. In contrast to conventional nuclear reactors, which use only about 3 percent of the nuclear fuel, MSRs use almost all of the nuclear material, producing far less spent nuclear fuel. The spent material left over from an MSR is substantially less radioactive than conventional spent nuclear fuel, requiring safe storage for only a few hundred rather than 10,000 years. MSRs have an additional characteristic that promises to prevent Fukushima-style incidents, since the salt in which the fuel is mixed keeps it cool even if the reactor shuts down.
Erich Schneider, an associate professor of nuclear engineering at the University of Texas at Austin, and Massachusetts Institute of Technology researchers with whom he collaborates, say the safety characteristics of MSRs make them considerably less expensive to build than conventional reactors, resulting in electric power produced at lower costs than even natural gas- fired power. Schneider foresees a day when MSRs would replace natural gas as the dominant partner of variable, intermittent, renewable sources of electricity like wind and solar power, cutting carbon dioxide emissions to near zero from electric power operations.
U.S. Rep. Lamar Smith (R-TX), chairman of the House Science, Space, and Technology Committee, is expanding the scope of his investigation into NOAA’s research claiming there has been no hiatus in warming temperatures. He cited the “slow pace and limited scope” of NOAA’s response to the committee’s October 2015 subpoena for documents related to that research. NOAA has provided more than 300 pages of e-mails and other documents produced by political appointees and by NOAA’s director of communications, but the agency refuses to hand over records of its internal scientific deliberations.
In his letter notifying NOAA of the expanded probe Smith writes, “The speed with which NOAA has conducted these searches and produced documents creates the perception that the Agency is deliberately attempting to impede and hinder the Committee’s oversight.” Originally focused on whether NOAA’s research satisfies the high standards required by the 2001 Data Quality Act to “ensure and maximize the quality, objectivity, utility, and integrity of information, including statistical information,” the House committee probe now asks to what extent, if any, the Obama administration and NOAA are collaborating to manipulate research in order to push the political agenda of fighting climate change.
NOAA issued a press release touting its “no pause” finding just as EPA launched its controversial Clean Power Plan and as the United Nations Conference on Climate Change in Paris was looming. Were any Obama administration officials communicating with NOAA about the substance or timing of the study and press statements prior to issuing them? Smith hopes to find out.
“It’s perfectly reasonable for the committee to have oversight over any sort of political influence over the science,” the journal Nature quotes Michael Halpern, program manager for the UCS Center for Science and Democracy, as saying.
Few outside of Alphabet-Google understand the immense market, economic, and technological power of an unaccountable monopoly over the underlying software that controls most all mobile devices in the world. Fortunately EU antitrust enforcers are some of the few who understand it.
Android, Alphabet-Google’s licensable mobile operating system, is an apparent EU/global monopoly facing an apparent EU antitrust case in its future.
This analysis explains why Android is a monopoly for antitrust purposes; what the crux of the Android antitrust case is; and why such a case would enjoy a uniquely solid foundation.
This matter is especially timely and relevant because the EU’s Commissioner for Competition, Margrethe Vestager is apparently on path to formally rule that Google’s “general online search services” are dominant and that Google Shopping has abused its search dominance. She is also expected to issue a formal EU Statement of Objections against Google-Android for anticompetitively foreclosing mobile OS competition and for tying/bundling its dominant search-related apps with its Android operating system to further foreclose competition in additional markets.
I. How is Android a monopoly for antitrust purposes?
Android, with a unique >1.5 billion monthly active users, is the only viable licensable mobile operating system globally, uniquely licensed by a critical mass of 400 OEMs, >550 carriers, and ~4,000 distinct devices — per Google.
In addition, Google commands the world’s leading browser-based operating system, Chrome, with >1 billion users and 57% market share globally, which is 3.5 times the share of the next competitor, Microsoft Explorer, per StatCounter. Google plans to consolidate Chrome with Android in 2016 per the WSJ.
What about Apple iOS?
For antitrust purposes, iOS is not a competitor to Android because iOS is an exclusive proprietary software operating system that cannot be licensed to any OEM like Android can. This licensable OS market definition is essentially settled antitrust precedent in both the EU and U.S. final rulings in the Microsoft OS antitrust cases: Microsoft v. Commission and United States v. Microsoft Corp.. Both cases found Microsoft guilty of abusing its Windows OS monopoly by contractually tying its free Explorer browser to its Windows OS to kill the first-mover browser, Netscape.
Given Apple’s iOS is not a competitor for antitrust purposes, Gartner stats per Statista show Google commands ~97% market share of 2015 global smartphone shipments, a monopoly position by most reasonable measure.
What about Microsoft?
In writing off its signature mobile acquisition, Nokia, Microsoft tacitly acknowledged defeat in mobile, and since has strategically pivoted away from being a “mobile-first” company to being a cloud-first enterprise company. Tellingly, Microsoft is folding its separate mobile OS functionality into its flagship Windows 10 OS.
Confirming that Microsoft and other potential mobile OS competitors are not significant competitors to the de facto Android mobile OS monopoly, Facebook-WhatsApp announced in a blog post that by the end of 2016, WhatsApp Messenger would “focus our efforts on the mobile platforms the vast majority of people use.” Thus it would no longer support the OSs of Nokia, Blackberry or Windows Phone 7.1. This is real world evidence that other mobile operating systems cannot offer developers enough user audience or app store distribution to be worth developers’ time.
Android is an apparent monopoly mobile operating system in the EU and globally.
II. The crux of the apparent Androidopoly antitrust case
Google, in contractually tying all its search-related apps (Search, Chrome, YouTube, Maps, Play, etc.) to its free Android mobile OS, not only has foreclosed competition in the mobile OS market, but also foreclosed competition in the mobile markets for “general online search services,” advertising services, metadata analytics, browsers, app monetization, maps/location services, video distribution, among others.
Specifically, Google is de facto cornering multiple digital and metadata markets simultaneously, by contractually forcing most all global OEMs, carriers, and devices to default to Google’s already 90+% share of the “general online search services” market, and also to Google’s other market-leading, search-driven and metadata-generating, advertising apps: Chrome, YouTube, Maps, Play, Gmail, Drive, etc. — so Google’s products and services are guaranteed to be positioned most advantageously on the home screens of most all of the world’s smartphones and tablets.
This tying/bundling strategy is highly effective because it exploits Google’s unique inside knowledge of global Internet user behavior, i.e. Google is confident Internet users will automatically acquiesce >90% of the time to any new automatic, Google-forced, default change or setting — with or without an opt-out. Absent antitrust accountability, Google can do whatever it wants with Android and its apps.
The problems/harms from Google’s leveraging its dominance in “general online search services” into the mobile OS market and further into the markets for the underlying Internet utility functions of access to: online information, apps, advertising, data/metadata monetization, computing, storage, etc. – are unprecedented in their scale, scope and reach.
The common harm to consumer welfare and innovation from Google’s anticompetitive behavior — in the EU’s charges involving “general online search services,” and the EU’s formalinvestigation into “mobile operating systems, [and] mobile communication applications and services” — is foreclosing competition, user competitive choice, and competitive innovation, by hindering the development and market access of rival products and services by systematically favoring Google’s products and services over rivals products and services.
III. Why an EU-Android antitrust case would enjoy a uniquely solid foundation
A potential EU Android case would greatly benefit from three unique and powerfully supportive circumstances.
First, assuming the EU as expected formally rules Google Search to be dominant and that it abused its search dominance in Google Shopping, an Android case that at least in part charges that Google contractually tied its dominant search apps to Android to extend its desktop ~90% search dominance into ~90% mobile search market share — then would not have to re-prove the most difficult part of the case, the market definitions and the findings of dominance, but only the abuses of dominance part, which relatively is a much easier task.
Second, it is unprecedented that Google has effectively repeated the violations of what another high-profile company did over the last twenty years that was proven illegal in both the EU and U.S.
While there are precious few antitrust precedents overall, the biggest, most-relevant, antitrust precedent that the EU does enjoy — fits much of Google’s illegal Android behavior almost like a glove.
EU antitrust enforcers are very familiar with how anticompetitive it is for a dominant operating system to tie a product to extend its dominance into an adjacent market, because of what Microsoft did in snuffing out Netscape by bundling its free Internet Explorer browser with its paid dominant Windows OS in the late 1990s.
While Google’s sequence was different in tying its dominant search capability to its free Android OS, the anticompetitive effect was the same in extending its dominance from one market to another. And that extended Android OS dominance affords Google the market power to dominate additional strategic markets like browsers, maps/location services, advertising, etc.
Third, an impetus that adds urgency and gravity to a potential Android antitrust case is that Google is now poised to eerily repeat the core offense of the Microsoft case. Google’s current plans to integrate/bundle its Android OS with its Chrome browser-based OS is a potential eerie replay of Microsoft illegally-bundling a dominant operating system with a browser, this time with a monopoly Google-Android mobile operating system bundled with a world-leading browser commanding a fast-growing 57% share that is on path to ~80-90% global market share in relatively short order — given the effectiveness of Android’s contractual tying behavior to date.
Google claims technology and innovation are inherently “disruptive” and dismiss complainants as those who can’t keep up and thus deserve no redress. This is a classic self-serving, straw man argument.
The illegal behaviors that Google has already been charged with, and will likely be charged with again in the future, are not a result of technology or innovation, but of Google leaders deciding to override their technology and manipulate their algorithms to favor Google content over rivals content, because they could, and by deciding to negotiate hundreds of Android-OEM contracts to systematically tie/bundle their dominant search services and apps to override market forces and favor Google apps over rivals apps on smartphones’ home screens, because they could.
Via search and Android, Google at core is an intermediary/broker between most everyone and most everything on the Internet. And Google established their intermediary dominance by consistently promising that they worked for user interests and that they never would manipulate search rankings for profit.
Damningly, the EU is enforcing antitrust law against Google because Google has not acted as the ‘honest broker’ that they have publicly represented themselves to be to gain user trust globally, but in actuality have acted systematically as a biased-broker, which non-transparently and monopolistically favors its own products and services over rivals’ offerings in a way that forecloses competitive choice and innovation.
Scott Cleland served as Deputy U.S. Coordinator for International Communications & Information Policy in the George H. W. Bush Administration. He is President of Precursor LLC, an emergent enterprise risk consultancy for Fortune 500 companies, some of which are Google competitors, and Chairman of NetCompetition, a pro-competition e-forum supported by broadband interests. He is also author of “Search & Destroy: Why You Can’t Trust Google Inc.” Cleland has testified before both the Senate and House antitrust subcommittees on Google and also before the relevant House oversight subcommittee on Google’s privacy problems.
Co-authored by Paul Driessen and Mark Duchamp
Environmentalists say navy sonar hurts whales, but ignore impacts of offshore wind farms
Between January 9 and February 4 this year, 29 sperm whales got stranded and died on English, German and Dutch beaches. Environmentalists and the news media offered multiple explanations – except the most obvious and likely one: offshore wind farms.
Indeed, that area has the world’s biggest concentration of offshore wind turbines, and there is ample evidence that their acoustic pollution can interfere with whale communication and navigation.
However, Britain’s Guardian looked for answers everywhere but in the right place. That’s not surprising, as it tends to support wind energy no matter the cost to people or the environment. After consulting with a marine environmental group, the paper concluded: “The North Sea acts as a trap.… It’s virtually impossible for [whales] to find their way out through the narrow English Channel.”
No it’s not. These intelligent animals would naturally have found their way to and through the Channel by simply following the coast of England or continental Europe. But the author seems determined to pursue his “explanation,” even when it becomes increasingly illogical. “The [trapped] whales become dehydrated because they obtain their water from squid,” he argues, before acknowledging that “the dead Dutch and German animals were well-fed,” and that the North Sea’s squid population has increased in recent years.
The article discards Royal Navy sonar and explosives, because “big naval exercises in UK waters are unusual in midwinter.” Finally, the author concludes with this quote from his purported expert: “When there’s a mass stranding, it’s always wise to look at possible human effects. But, at the moment, I don’t see anything pointing in that direction.” He should look a bit harder. Not everyone is so blind.
Indeed, “researchers at the University of St. Andrews have found that the noise made by offshore wind farms can interfere with a whale’s sonar, and can in tragic cases see them driven onto beaches where they often die,” a UK Daily Mail article observed.
It is certainly possible that permanent damage to the cetaceans’ middle and inner ears, and thus to their built-in sonar, can result from large air guns used during seismic surveys and from violent bursts of noise associated with pilings being rammed into the rock bed. Wind promoters themselves admit that their pile-driving can be heard up to 50 miles (80 kilometers) underwater, and can be harmful to whales that happen to be nearby. But unless these injuries cause external bleeding, they are very difficult to detect.
Natural phenomena such as seaquakes, underwater volcanic eruptions and meteorites crashing into the oceans have likely been the cause of whale beachings throughout history, by injuring the animals’ inner ears and sonar organs, frightening and disorienting them, and causing them to seek refuge in shallow waters. In more recent years, “military exercises using mid-frequency sonar have been linked quite clearly to the disorientation and death of beaked whales,” says The Guardian.
Low frequency sonar can be even more dangerous, the Natural Resource Defense Council asserts. “Some systems operate at more than 235 decibels,” the NRDC has said, “producing sound waves that can travel across tens or even hundreds of miles of ocean. During testing off the California coast, noise from the Navy’s main low-frequency sonar system was detected across the breadth of the northern Pacific Ocean.”
The U.S. Navy itself has recognized the danger that sonar systems represent for marine mammals. As reported in Science magazine: “In a landmark study, the U.S. Navy has concluded that it killed at least six whales in an accident involving common ship-based sonar. The finding, announced late last month by the Navy and the U.S. National Marine Fisheries Service (NMFS), may complicate Navy plans to field a powerful new sonar system designed to detect enemy submarines at long distances,” despite how important that system and its submarine and surface ship counterparts are for national security.
It has been said the “low-frequency active sonar” from this system would be the loudest sound ever put into the seas, The Guardian states. But wind turbines also emit low frequency noise, including dangerous infrasound. At sea, these vibrations are transmitted via the masts to the water, and via the pilings to the rock bed. They can travel up to 31 miles (50 kilometers).
Granted, the acoustic pollution caused by sonar – particularly powerful navy systems – is greater than that from wind turbines. But wind turbine noise and infrasound are nearly constant, last as long as the turbines are in place and come from multiple directions, as in the areas where the whales were recently stranded.
On land, although the wind industry continues to deny any culpability, evidence is mounting that low frequency and particularly infrasound waves emitted by wind turbines have significant adverse effects on local residents, including sleep deprivation, headaches, tachycardia (abnormally rapid heart rates) and a dozen other ailments. Underwater, a milieu where sound waves travel much farther, it would be irresponsible and unscientific to argue that whales are not affected by operating wind turbines, all the more because cetaceans use their sonar to “see” what’s around them
As scientists have pointed out, “It is likely that acoustic masking by anthropogenic sounds is having an increasingly prevalent impact on animals’ access to acoustic information that is essential for communication and other important activities, such as navigation and prey/predator detection.”
“Blinded” by this masking, whales and dolphins could seek refuge in shallow waters, away from big ships and killer whales. There, low tides could surprise them, as large pelagic species have limited experience with tidal flows.
In September 2012, 19 pilot whales, a minke whale and a large sei whale beached on the coast of Scotland opposite an area where air guns were being used by ships surveying the ocean floor, as a prelude to installing offshore wind farms. “A second pod of 24 pilot whales was spotted in shallow water by Cellardyke around the same time, but [it] returned to sea without beaching,” the article noted.
Offshore turbines were also associated with “many” stillborn baby seals washing up onshore near the UK’s Scroby Sands wind farm in June 2005. “It’s hard not to conclude the wind farm is responsible,” the author concluded.
Many more similar deaths may well have been caused by wind farms at sea. The scientific and environmental literature abounds in warnings about risks to marine mammals from man-made noise.
Modern 8-megawatt offshore turbines are 656 feet (200 meters) above the waves; their rotating blades sweep across a 538-foot (164-meter) diameter. Those enormous blades create powerful pulsating infrasound and exact a toll on many species of marine birds, and even on bats that are attracted to the turbines as far as 9 miles (14 km) offshore.
In a February 2005 letter, the Massachusetts Audubon Society estimated that the proposed Cape Cod wind project alone would kill up to 6,600 marine birds each year, including the roseate tern, which is on the endangered list.
Do we really want to add marine mammals to the slaughter of birds and bats, by expanding this intermittent, harmful, enormously expensive and heavily subsidized energy source in marine habitats?
In addition, having forests of these enormous turbines off our coasts will greatly increase the risk of collisions for surface vessels, especially in storms or dense fog, as well as for submarines. It will also impair radar and sonar detection of hostile ships and low-flying aircraft, including potential terrorists, and make coastal waters more dangerous for Coast Guard helicopters and other rescue operations.
The offshore wind industry makes no sense from an economic, environmental, defense or shipping perspective. To exempt these enormous installations from endangered species and other laws that are applied with a heavy hand to all other industries – and even to the U.S. and Royal Navy – is irresponsible, and even criminal.
Paul Driessen is senior policy analyst for the Committee For A Constructive Tomorrow (www.CFACT.org) and author of Eco-Imperialism: Green power – Black death. Mark Duchamp is president of Save the Eagles International.
Uncle Sam is becoming “Uncle Shrink” to millions of schoolchildren, including many preschoolers, who are now subject to various psychology-focused educational components that have been implanted in federal education legislation over the past decade.
One of the most influential ways the federal government is molding young minds is through “social and emotional learning” (SEL) programs, a prominent feature of the omnibus Every Student Succeeds Act (ESSA), which was signed into law by President Barack Obama in December 2015.
SEL has no clear definition in federal law, but many education sites tout SEL as instilling in students the necessary attitudes and skills that will supposedly enable them to manage their emotions, which in turn theoretically helps them do good things, such as showing empathy for others.
Very much in the same vein is the Strengthening Research Through Education Act (SETRA), which is currently being considered by Congress and will likely be passed soon. SETRA is a reauthorization of a George W. Bush-era law that extended the U.S. Education Department’s research arm into the collection of personal data about students and also authorized the use of linked state longitudinal databases.
Proceeding so far with minimal debate in Washington, DC, SETRA would expand federal education research to pupils’ “social and emotional learning, and the acquisition of competencies and skills, including the ability to think critically, solve complex problems, evaluate evidence, and communicate effectively.”
This kind of subjective probing of children’s attitudes, beliefs, and behavior amounts to psychological profiling that (thanks to electronic dossiers) could haunt an individual throughout a lifetime.
Dr. Karen Effrem, a pediatrician who has tracked this trend for years as the president of Education Liberty Watch, laments, “Parents are expected to submit their children to this kind of government profiling and psychological experimentation with no explanation, no way to express concern, [and no way to] opt their children out.”
Effrem also says SETRA is incredibly problematic because parents are afforded “no way to see the federally mandated assessments or to find out what private, sensitive psychological data was collected on their children as part of some online assessment and shared with some third-party vendor without their consent.”
Starting with the 2016–17 school year, the exploration of what education theorists call “the affective domain”—meaning feelings and emotions, as opposed to actual thought—will spread to the fairly well-respected National Assessment of Educational Progress (NAEP), also called the Nation’s Report Card. A background survey accompanying NAEP will attempt to assess a child’s grit and motivation, among other qualities.
If the late John Wayne showed “true grit” in his Western movies—grit being perseverance in pursuit of a goal—how in tarnation does a student exhibit that trait by filling out a federal form? The kid may be tired, he may be sick, or he might just be sick and tired of being psychoanalyzed by proxy, but his facetious answers will rank him low on the Grit-o-Meter, and if that nugget pops up some day from a database, it might cost him a job.
Parents and educators concerned about ESSA, the successor to No Child Left Behind and the latest version of the mammoth Elementary and Secondary Education Act, should watch carefully for a big push by some to advance federal preschool programs now that a $250 million program of competitive grants for state pre-K initiatives has been made permanent in federal law. This will bolster the Obama administration’s latest version of Race to the Top, the Early Learning Challenge—also known as “Baby Common Core”—which encourages the socio-emotional assessment of preschoolers.
The proposals made by two states that are eagerly seeking their cuts of the loot indicate where all this is heading: “California will offer additional provider training in assessing social-emotional learning and ensure greater access to developmental and behavioral screenings. … [Minnesota’s] existing birth-to-five child development standards will be aligned with K–12 standards, which will [be] expanded to include non-academic developmental domains for children ages five to 12,” according to a summary by the federally supported Early Learning Challenge Collaborative.
ESSA also calls for an extensive “family engagement policy,” which, according to a recent policy draft by the U.S. Departments of Education and the Department of Health and Human Services, will begin prenatally and continue “throughout a child’s developmental and educational experiences.”
Along the way, say the bureaucratic behemoths, the government must “prioritize engagement around children’s social-emotional and behavioral health.”
In plain language, this means the government will assess children every single step (or crawl) of the way, from cradle to career, to be certain they acquire all the attitudes, beliefs, and dispositions the omniscient, omnipotent government deems they must have. SEL, baby, SEL.
Uncle Shrink approves, but what about U.S. parents? Are they ready to let the government assume their child-rearing responsibilities?
In 1952, the Council of State Governments reported that less than 5 percent of U.S. workers were required to be licensed to legally perform their jobs. Economists Morris M. Kleiner and Alan B. Krueger put that number at 29 percent in 2008 — a nearly 500 percent increase in American workers licensed over the last half century.
Advocates of occupational licensure argue that it protects the public interest by excluding incompetent and unethical individuals from sensitive jobs. This is certainly the case in some fields, such as health care — but in general, research reveals weak evidence that licensure confers a tangible benefit on public safety or the overall quality of services provided to consumers. What it mainly does is increase costs: Kleiner estimates that licensing increases prices 5 to 33 percent, depending on the occupation and geographic location.
Deregulation, however, has faced strenuous political opposition. In an article last year, economists Robert J. Thornton and Edward J. Timmons investigated the phenomenon of “de-licensing.” Examining 40 years’ worth of records, the authors found only eight examples of this phenomenon at the state level, and in four of those cases, efforts to re-license the occupations followed soon afterward.
Given the political difficulty of removing licensure requirements, more modest state-level policy proposals are more likely to succeed. For example, states could shift from licensure to state certification, which is less restrictive.
Here are some other options for state policymakers:
Use cost-benefit analysis before requiring licenses in newly emerging occupations. Implicit in this approach is a high barrier to licensure. Lawmakers should start with an assumption of no regulation.
Coordinate with other states. The Council of State Governments, for example, could be effective in coordinating efforts to harmonize requirements across the states and develop interstate compacts for licensure reciprocity.
Reassess the scope of practice among existing regulated occupations. While so-called “turf wars” among occupations can be intense, a public airing of such concerns can often result in increased competition and innovation. For example, the present environment allows consumers a choice among various licensed mental health providers offering similar (but differentiated) services at a range of hourly rates.
While increasing labor mobility and consumer choice, reducing barriers to entry, and improving the climate for service innovation are all laudable goals, more modest, targeted attempts at reform will be easier to achieve and should be considered a major policy success.
Looking backwards makes it hard to see what’s right in front of you.
Looking backwards at 1934-era Title II telephone utility law, the FCC concluded in its 2015 Open Internet Order that only broadband providers could be “gatekeepers” warranting net neutrality regulation to “protect and promote the “virtuous cycle” that drives innovation and investment on the Internet.”
That’s because the FCC is apparently oblivious to the very different 21st century communications “gatekeepers” right in front of them that command dramatically more potential “gatekeeper” market power than any broadband provider.
The FCC should listen to what one 21st century communications provider, which commands well over a billion social and communications users globally, has to say about the dominance of edge platforms.
Facebook-WhatsApp blogged last week, and stated that after 2016 it will no longer support the competitive mobile operating systems from Nokia, Blackberry and Windows Phone 7.1, in order “to focus our efforts on the mobile platforms the vast majority of people use.”
Tellingly, Statista’s reporting of this, spotlighted the reality of Facebook-WhatsApp’s decision:
“WhatsApp’s plan to focus on fewer platforms is the latest of many signs pointing in the same direction: the mobile platform war is over and there are two big winners. Last year, Android [81.6% share] and [Apple] iOS devices [15.9% share] accounted for 97.5 percent of global smartphone sales, up from just 38 percent in 2010. As Android and iOS gobbled up market share, all other platforms have sooner or later been caught in the same vicious circle: publishers and app developers prefer platforms with large audiences and users choose platforms based on the availability of their favorite apps. Once the users jump ship, app developers soon follow and vice versa.” [Bold added for emphasis and to contrast the FCC’s assumption that there can be an edge “virtuous cycle,” if gatekeepers must be neutral.]
Mobile operating systems may be the ultimate, non-neutral, Internet network gatekeepers. They control if their preferred content and apps are used by default or positioned best on a device homepage for maximal adoption. They also can block images; block apps from loading; throttle display advertising traffic from loading; offer mobile content fast lanes; or engage in paid prioritization to favor their preferred content.
Facebook-WhatsApp and Statista are not the only ones capable of seeing that edge platforms can be dominant gatekeepers.
Widely respected Silicon Valley insider Om Malik triggered the discussion of the dominance of edge platforms with a blunt, must read, year-end, New Yorker op-ed entitled: In Silicon Valley Now, its Almost Always Winner Takes All, in which he concluded “most competition in Silicon Valley now heads toward there being one monopolistic winner.”
Then the New York Times technology columnist, Farhad Manjoo, strongly confirmed Mr. Malik’s overall assessment in his column, “Tech’s Frightful Five Will Dominate Digital Life for Forseeable Future,” in which he concludes the five “inescapable” platforms are Google, Apple, Facebook, Amazon and Microsoft, and which represent “the basic building blocks on which every other business, even would be competitors, depend.”
If the FCC would only look forward to what is happening right in front of them, the FCC could see that they have been totally ignoring the gatekeeper risks of the dominant edge communications platforms, which are vastly greater in both horizontal and vertical market power.
Since Google, Facebook, Amazon, Apple, and Microsoft, generally command ~billion+ user, global scale and scope, compared to broadband providers’ more limited national or regional scale and scope, of at most ~125 million users, the dominant edge platforms thus command ~10-25 times more users than broadband providers.
However, that understates their relative dominance, because of the well-known ‘network effects’ of Metcalfe’s Law. It posits that the “value of a network is proportional to the square of the number of connected users of the system (n2).” Thus the network-effect value-differential of the global dominant edge platforms relative to national broadband providers is ~102 to ~252 times more, or a staggering ~100 to ~625 times more relative horizontal market power.
Moreover, while the FCC and DOJ have held broadband providers to a ~33% horizontal market share limit in blocking AT&T-T-Mobile and Comcast-TWC, and threatening to block Sprint-T-Mobile, the FCC, DOJ and FTC have routinely ignored transactions and non-neutral network behavior by dominant edge providers, which command vastly more problematic, 75-90+%, horizontal market shares.
And since the FCC predicates much of its net neutrality policy on the notion that vertically-integrated “gatekeepers” have a commercial incentive to not be neutral, it is arbitrary and hypocritical that the FCC has no concerns about obvious non-neutral behavior by the two dominant and maximally-vertically-integrated smartphone OS providers, Android and Apple, which command 81.6% and 15.9% global market share respectively.
If the main antitrust case of the last two decades was Microsoft’s anticompetitive abuse of its operating system market power, why is the FCC willfully blind about the threats to an Open Internet from non-neutral, dominant edge mobile operating system platforms?
Given that the FCC has produced an arbitrary Open Internet Order that regulates ISPupstream traffic as a Title II utility, but nonsensically leaves unregulated the alleged “terminating monopoly” downstream traffic to the ISP, it should be no surprise that, the FCC arbitrarily would over-regulate competitive broadband providers as non-neutral gatekeepers based on scant evidence of a problem, while turning a total blind eye to obviously-dominantedge platform gatekeepers who routinely operate vastly larger Internet networks non-neutrally.
To paraphrase the great American philosopher, Forest Gump: Arbitrary is as arbitrary does.
Scott Cleland served as Deputy U.S. Coordinator for International Communications & Information Policy in the George H. W. Bush Administration. He is President of Precursor LLC, a research consultancy for Fortune 500 companies, and Chairman of NetCompetition, a pro-competition e-forum supported by broadband interests.
If you don’t visit Somewhat Reasonable and the Heartlander digital magazine every day, you’re missing out on some of the best news and commentary on liberty and free markets you can find. But worry not, freedom lovers! The Heartland Weekly Email is here for you every Friday with a highlight show. Subscribe to the email today, and read this week’s edition below.Help Us Fix Wikipedia Joseph L. Bast, Somewhat Reasonable Are you surprised to read on Wikipedia that The Heartland Institute is an unreliable front group for major corporations and that it is “best known” for its work on tobacco control? That surprised us, too. Left-wing activists have taken over Heartland’s Wikipedia page, removing objective descriptions of our programs and publications and replacing them with lies, errors, and outright libelous claims. Heartland’s Wikipedia page should reflect the fact that the organization has consistently supported sound science and free-markets. Can you help? READ MORE Government Science Secrecy Grows Under President Obama H. Sterling Burnett, Forbes Do you remember when candidate Barack Obama repeatedly pledged he would run the most transparent administration in the history of the United States? Fast-forward to today and find President Obama’s administration has actively worked to conceal important information from the public. The administration has been far more opaque than transparent, with a record number of Freedom of Information Act (FOIA) denials and ongoing refusals to make public scientific information used to justify environmental regulations. READ MORE Heartland Honored to Open the Andrew Breitbart Freedom Center The late Andrew Breitbart was a pioneer who created his own media empire to fight back against the liberal mainstream media and give voice to conservatives, libertarians, and free-market capitalists. To honor his legacy, Heartland’s state-of-the-art meeting space – which has the ability to live-stream events – will be available for free to any group dedicated to advancing liberty and free markets. Heartland is proud that its event space now carries Andrew Breitbart’s name. READ MORE Featured Podcast: Introducing Michael Hamilton, Heartland’s New Managing Editor for Health Care News In this edition of the Heartland Daily Podcast, host Donald Kendal introduces Heartland’s new managing editor of Health Care News, Michael Hamilton. Hamilton talks about his background and several topics that will be featured in the upcoming issue of Health Care News, bringing listeners up-to-date on Medicaid expansion, right to try legislation, certificate of need laws, and the advancement of direct primary care. LISTEN TO MORE March 9 Event: There Is No “Scientific Consensus” on Global Warming The Heartland Institute’s newest book, Why Scientists Disagree About Global Warming, demolishes the myth that “97% of scientists” believe mankind is the cause of a global warming catastrophe. Heartland President Joseph Bast, who edited the book, will discuss his findings and bid a fond farewell to one of the coauthors, Robert Carter who passed away on January 19, at a free event in the Andrew Breitbart Freedom Center on Wednesday, March 9. Go to Amazon.com or the Heartland store [store.heartland.org] now and order a copy. To get a free copy, become a Heartland donor or attend the March 9 event! Health Care Hackers Causing Chaos Justin Haskins, Consumer Power Report A disturbing trend is growing where hackers invade computer systems of medical centers, shut down important hospital functions, and hold records for ransom. The worst part of these electronic sieges is the fact they are exacerbated by legislation related to the Affordable Care Act. The Obama-backed Health Information Technology for Economic and Clinical Health Act required all medical providers to digitize medical records. Since the passage of this law, tens of millions of patient records have been stolen. READ MORE Many Science Teachers Not Stampeded into Climate Alarmism H. Sterling Burnett, Climate Change Weekly As the general public becomes less convinced of the cataclysmic predictions from global warming alarmists, support is beginning to wane even in traditional strongholds: the nation’s public schools. A recent survey of middle- and high-school science teachers in all 50 states shows nearly half refuse to brainwash students into believing humans are causing catastrophic climate change. Since it appears the global warming debate is alive and well in our public schools, perhaps now is the time for further outreach of sound science to our nation’s teachers. READ MORE
Reforming Florida’s Civil Asset Forfeiture Laws Matthew Glans, Heartland Research & Commentary Florida has terrible laws on civil forfeiture – a controversial legal process through which law enforcement agencies take personal assets from individuals or groups merely suspected of a crime or illegal activity. The law essentially considers citizens guilty until proven innocent, forcing people to prove they were not aware their property was being used illegally. Florida lawmakers are considering two proposals that would require law enforcement agencies to obtain a criminal conviction before they can confiscate cash or property. READ MORE Bonus Podcast: Sophia Cope – Apple vs. The Federal Government A great debate has been occurring in the aftermath of a court order demanding that Apple give the Federal Bureau of Investigation access to an iPhone owned by one of the San Bernardino terrorists. Electronic Frontier Foundation staff attorney Sophia Cope joins host Jesse Hathaway to discuss the situation, as well as Apple CEO Tim Cook’s decision to fight the court order. Cope says the government is seeking to set a dangerous precedent that could lead to mass surveillance by requiring Apple to hack into its own products. LISTEN TO MORE Grading States to Protect the Government-Education Complex Timothy Benson and Lennie Jarratt,Washington Times Advocating a specific viewpoint is fine; advocating a specific viewpoint under the guise of objectivity is another story. A recent study by the Network for Public Education, which aims to grade states based on their school systems, is being looked at by the media as an honest-to-goodness objective study. In reality, the report is a rating system that attempts to show how well each state is protecting its public schools from school choice. READ MORE Good and Bad News Seen in Louisiana Voucher Results Joy Pullmann, School Choice Weekly A recently released study on Louisiana’s voucher program shows mixed results. The report found negative effects for the participating children, a rare finding for school voucher programs. On the positive side, the program was shown to increase racial integration and may have increased academic achievement in public schools. The Louisiana Federation for Children released its own report showing the lowest-performing voucher students have closed half the gap between them and the state average. READ MORE Invest in the Future of Freedom! Are you considering 2016 gifts to your favorite charities? We hope The Heartland Institute is on your list. Preserving and expanding individual freedom is the surest way to advance many good and noble objectives, from feeding and clothing the poor to encouraging excellence and great achievement. Making charitable gifts to nonprofit organizations dedicated to individual freedom is the most highly leveraged investment a philanthropist can make. Click here to make a contribution online, or mail your gift to The Heartland Institute, One South Wacker Drive, Suite 2740, Chicago, IL 60606. To request a FREE wills guide or to get more information to plan your future please visit My Gift Legacy http://legacy.heartland.org/ or contact Gwen Carver at 312/377-4000 or by email at email@example.com.
In The Tank Podcast (ep28): Civil Asset Forfeiture, Growth in Regulatory Paperwork, and Film Subsidies
With John Nothdurft out of the office, host Donny Kendal is joined by Heartland Executive Editor Justin Haskins in episode #28 of the In The Tank Podcast. This weekly podcast features (as always) interviews, debates, roundtable discussions, stories, and light-hearted segments on a variety of topics on the latest news. The show is available for download as part of the Heartland Daily Podcast every Friday. Today’s podcast features work from the Institute for Policy Innovation, the American Action Forum, and Reason.
Featured Work of the Week
Featured this week is a report by the Institute for Policy Innovation titled “Civil Asset Forfeiture and the Constitution.” The report explains what civil asset forfeiture is, why its dangerous, and what specific parts of the Constitution it infringes upon.
Linked here are Heartland’s Research & Commentary reports.
In the World of Think Tankery
Today Donny and Justin talk about a report from the American Action Forum titled “The Explosive Growth in HHS Paperwork.” The report explains how the paperwork related to Health and Human Services has skyrocketed in the past two decades.
During this discussion, Justin refers to points made in his Consumer Power Report newsletter – a weekly newsletter covering the top health care stories of the week.
They also talk about a Reason article titled “No Matter Who Wins at the Oscars, Taxpayers Lose on Film Subsidies.” The article explains why states offer movie studios subsides to film in their state and why it’s not a good investment.
Here are a handful of upcoming events that you may be interested in attending.
Mackinac Center – Can I Catch a Ride: Regulating Uber and Lyft (Wednesday, March 9) @ the Radisson Hotel in Lansing, Michigan.
Heartland Institute – Why Scientists Disagree About Global Warming: Featuring Heartland President Joseph Bast (Wednesday, March 9) @ The Heartland Institute in Arlington Heights, Illinois
Heritage Foundation – A Brief History of the Cold War (Wednesday, March 9) @ The Heritage Foundation in Washington, D.C.
heartland daily podcast, hdpodcast, podcast, in the tank, itt, donny kendal, justin haskins, institute for policy innovation, american action forum, reason, civil asset forfeiture, hhs paperwork, regulation, constitution, oscars, film subsidies, heritage foundation, think tanks
Everything in Washington, D.C. established to do X – ends up doing X, Y, Z, and triplets of every letter in the alphabet. This anti-federalism is fueled by several basic precepts. Of course DC wants as much power as it can grab. The more power it wields – the more it can lord over us and the more favors it can dole out. And the more coin it can spend – and the more coin it can justify taking from us.
But the states bear a lot of the culpability too. The more the states off-load onto the Feds – the less for which they themselves are responsible. Politically and financially. The more the Feds do what states should be doing – the more coin the states have for other silliness.
And here is a vitally important component: States can’t print money and have to at least pretend to balance their budgets. The Feds are not constrained by either of those two tethers to Reality. (Hello, $4.5 trillion in phony Quantitative Easing coin and $19 trillion in debt.)
Want yet another example of the DC alphabet growing? Behold the United States Army Corps of Engineers: “A 23,000-employee federal agency that works on a wide range of infrastructure projects for military and civilian purposes. It’s an honorable history in helping build everything from the Washington Monument to the Panama Canal. But like many federal agencies it is prone to mission creep, pork-barrel projects, and outrageous cost overruns.”
Here comes the creep: “On a recent trip to Missouri, it now looks as if Corps may be expanding into the cleanup of hazardous waste sites. Since the country has hundreds of these, this is a worrisome precedent. The West Lake Landfill, near St. Louis’s Lambert International Airport, has been a local eyesore since 1974 but has posed no discernible danger to local public health and safety despite some radiological material left over the 1940s Manhattan Project being present….(A)fter 25 years, (the Feds) have completely dropped the ball and now there has been no cleanup.”
This itself is a lesson. Perhaps we should stop waiting (decades) for the Feds, get off our respective scnheids – and do things for ourselves.
But the awful Environmental Protection Agency (EPA) finally awoke from its tax-dollar-gorging-induced slumber. “(T)he EPA announced it would clean up the site and also build a physical isolation barrier preventing any subsurface fire from spreading. The plan was to involve to the West Lake site, all in 2016. Crucially, the plans involve private sector parties paying much of the cost of the cleanup.”
Wait – We the Taxpayers aren’t on the hook? How refreshing. And after all that wasted time – this privately-funded cleanup is up and running and ready to go.
But of course this federal-government-less problem solving can not be allowed to stand. Enter the Missouri politician contingent: Democrat Senator Claire McCaskill, Democrat Representative William Lacy Clay and Republican Representative Ann Wagner (because the DC insanity is absolutely bipartisan). These three are waving around our National Debt credit card – and looking for even more things for the Corps to do.
“The U.S. Senate passed a ($400+ million, zero-hearings-held) bill to give the Army Corps of Engineers the authority to clean up the radioactive waste. ‘With the passage of this legislation today, the Senate has demonstrated that voices of the community around West Lake Landfill are being heard,’ Democratic Sen. Claire McCaskill of Missouri proclaimed. Missouri Reps. William Lacy Clay and Ann Wagner have introduced companion legislation in the House (HR 4100) – and also demanded it be passed immediately with no hearings.”
Oh look – another terrible bill DC pols are jamming through with zero examination. But after a quarter century of federal lameness – why this sudden urgency? “One possible reason for the haste is that a main backer of the McCaskill bill is the Teamsters Union, a politically powerful player in the St. Louis area. The union says it is concerned the landfill represents ‘a human rights violation.’”
But for the preceding twenty-five years it did not? Wait for it… “It also worries that landfill workers at the site ‘lack a union and are left without a means to voice concerns without fear of retaliation.’ Transferring control of the project to the Corps of Engineers could mean more union involvement in the cleanup….”
There it is. Favors for some – at the exorbitant expense of the rest of us.
The West Lake, Missouri Landfill is a mess – and has been for a long time. But finally, FINALLY – it is on the verge of being solved. With private coin, no less. Washington, D.C. is a much bigger mess – and has been for a much longer time. The Feds mandating DC’s harmonic convergence with West Lake is a quintessential visual aide of all that is wrong with Washington.
Anti-federalism, overreach, zero transparency, cronyism – and redundancy via unnecessary meddling and ridiculous and unwarranted spending. Bravo, Senator and Representatives. And everyone else that voted or intends to vote for this utterly-unnecessary disaster-in-the-making.
This, like so much in DC, brings to mind the words of World War II-era theater producer Martin Gabel: “Don’t just do something – stand there.”
Despite its reputation for freedom, the U.S. has the world’s highest prison population rate, 716 inmates per 100,000 people. More than half the countries of the world have rates less than one-fifth of that. The United States’ rate is six times that of Canada and six to nine times greater than the rates of Western European nations, with whom we have the most cultural and historical ties. Why is criminality so much higher here than in those countries? The U.S. has less than 5 percent of the world’s population but 22 percent of its prison population.
For decades the U.S. prison system was a model for other countries. Then the trend reversed. From 1978 to 2014, our prison population rose 408%. Policies in those years led to stricter federal sentencing, more law enforcement—and an avalanche of new laws. The movement toward broad, punitive crime control and prison policies wasn’t based on any scientific rationale, says Craig Haney, a professor at the University of California (Santa Cruz). “Rather, it was largely the product of a series of policy decisions made for largely political reasons [that] legislators and other politicians have found politically advantageous and expedient.”
Over the past decade Congress has created, on average, 50 new crimes per year. Not 50 new laws; 50 new crimes. That number has been far exceeded by the Obama Administration, which in its first five years created 439 new crimes, an average of 88 per year, bringing the total federal crimes to 4,889. That does not include the state and local crimes for which Americans can be prosecuted.
The laws are voluminous. The Affordable Care Act ran 1,024 pages; Sarbanes-Oxley 810 pages; and the Dodd-Frank Act 2,300 pages. These were crafted by congressional staff personnel, not even read by the senators and representatives, who couldn’t possibly have the time to read them all even if they wanted to. Laws have grown so extensive and complicated that only lawyers, often working in teams, can know everything a law requires; but everyone must obey them, which they are unable to do. John Baker, a retired law professor who has studied this issue, states, “There is no one in the United States over the age of 18 who cannot be indicted for some federal crime.”
It’s not just the laws but the regulations. These are more voluminous than the laws and set forth new crimes beyond what the laws specify. Take the Obamacare regulations, for example. The bureaucracy wrote 30 words of regulations for every word in the legislation itself. The 109 final regulations pertaining to Obamacare contained more than 11 million words (11,588,500), compared to 381,517 words in the legislation. In 2013 the Code of Federal Regulations was over 175,000 pages, the print edition occupied 238 volumes, and the index alone took 1,242 pages. I am unable to find recent estimates of the number of federal regulations, but estimates back in 1991 ran as high as 300,000, and EPA regulations alone occupied more than 30 volumes of the Code of Federal Regulations. Undoubtedly those totals are much higher now.
Andrew P. Napolitano is a former New Jersey Superior Court judge and has written seven books on the U.S. Constitution. He writes that the federal government now regulates “the thickness of leather in shoes, the water pressure in home showers, the amount of sugar in ketchup, ad infinitum. It is impossible to avoid confronting federal regulation of human behavior unmentioned in the Constitution.”
Congress permits the Supreme Court to allow the regulatory agencies to create their own rules, which run roughshod over individual rights and often counter to the intent of Congress. Charles Murray, a scholar at the American Enterprise Institute, writes, “If a regulatory agency comes after you, forget about juries, proof of guilt beyond a reasonable doubt, disinterested judges and other rights that are part of due process in ordinary courts. The ‘administrative courts’ through which the regulatory agencies impose their will are run by the regulatory agencies themselves, much as if the police department could make up its own laws and then employ its own prosecutors, judges and courts of appeal.” Regulation has become a 4th branch of government, which usurps the functions of the other three branches.
The regulatory agencies create crimes by broadening the definition of their powers granted by Congress or the Constitution. EPA, for example, has extended its power under the Clean Air Acts and Clean Water Act far beyond the intent of Congress, and it has extended its Constitutional power over “navigable” waterways by claiming it includes swamps, land under water only a few week a year—or even only a few days— and potholes, ditches and culverts hundreds of miles from any actual navigable water. In 2010 just 3 of more than a dozen environmental statutes (Clean Air Act, Clean Water Act and Resource Conservation and Recovery Act) contained 9,000 pages on illegal behavior, any one of which can result in criminal prosecution. Here are three examples from one of my previous books (The Trojan Project) of people being sent to prison because of such crimes.
In Florida, Ocie Mills and his son served 21-month prison terms for dumping clean sand on two lots they owned and on which they were trying to build a house. They already had permission from the state of Florida, and Florida officials had told them no federal permit was necessary. But federal environmental police found them guilty of dumping a “pollutant” into “navigable waters of the United States.” After serving his full term in prison, Ocie attempted to get the verdict overturned just to clear his name, but he failed. Federal district judge Roger Vinson deplored the twisting of wording “worthy of Alice in Wonderland,” to stretch the meaning of “navigable water” to include dry land, clearly not even a wetland, much less a navigable water, but said he had to apply the law as it existed.
John Pozsgai, a Hungarian immigrant with little schooling bought an old industrial dump, cleaned it up by removing 7,000 old tires—and then committed the crime of adding topsoil without a federal permit. There was no question the environment was improved by his actions. That wasn’t the point. The point was that he did so without a federal permit. Three years in federal prison.
Bill Ellen used to be the state environmental engineer who regulated wetlands. He ran a nonprofit wildlife rescue center and had been hired to convert part of an estate into a 103-acre wildlife sanctuary when he ran afoul of permit regulations. But he wasn’t draining or filling wetlands—he was building them! The sanctuary was adding 45 acres of duck ponds. Ellen wasn’t trying to evade government regulations; he had already obtained 38(!) permits and thought he was doing everything properly. But he was sentenced to six months in jail for dumping two loads of dirt on a portion of the property that the U.S. Soil Conservation Service had previously declared a non-wetland. A U.S. Corps of Engineers official using an expanded definition of “wetland” from a new government manual—so new it wasn’t even in effect yet—declared Ellen guilty. He ended up being sentenced to 6 months in jail for a regulatory standard that didn’t even exist at the time of his actions.
Historically, Anglo-American jurisprudence required a guilty act (“actus rea”) be accompanied by an awareness that the act is wrong (“mens rea” in Latin, literally meaning “guilty mind”) for there to be a crime. However, the federal government has increasingly imposed criminal penalties under what is known as “strict liability” laws. Bill Ellen’s experience cited above is an example; clearly he did not know he was doing anything wrong.
Another example of criminal conviction lacking mens rea is the case of Abner Schoenwetter. He spent six years in a U.S. federal prison for violating an obscure Honduran regulation by packaging lobsters with plastic instead of cardboard. Under the Lacey Act, it is illegal for an American citizen to violate any fish or wildlife regulation of another nation. A reform measure, recently introduced by Congressman Jim Sensenbrenner, which would provide protection from this sort of injustice by a default “mens rea” rule has been opposed by President Obama.
The federal government’s criminalization of human behavior continues to increase with no sign of it stopping, much less reversing. Our Constitution has been violated so often and so extensively that it no longer protects our rights and freedom as was intended. The growth and exercise of federal power has become so commonplace as to be viewed as acceptable or inevitable and render the Constitution irrelevant to the power structure in Washington. The Constitution mentions only three federal crimes: treason, piracy, and counterfeiting. Does anyone involved in creating the hundreds and hundreds of new federal crimes really care that they have no justification under the Constitution?
The Constitution grants the federal government only certain powers enumerated in that document. All others are reserved to the states or to the people under Article 10. The enumerated powers grant the federal government no power to print paper money, regulate the economy, establish a central bank (the Federal Reserve), provide housing, food stamps or many other things in which federal involvement is now widely accepted public policy. These abuses of federal power will never be corrected by the elected leaders in Washington who created them or their successors who continue to benefit from them politically.
There have been 27 amendments to the Constitution. These have all been accomplished by proposed amendments achieving a two-thirds vote in both house of Congress, followed by ratification in three-fourths of the legislatures of the states. But Article V of the Constitution provides an alternative route that bypasses Congress—which would never pass amendments such as I suggest. The alternative route is through approval of two-thirds of the state legislatures, which would trigger a call for a convention to consider amendments, which would then have to be ratified by three-fourths of the state legislatures.
(Black’s Law Dictionary defines “constitutional convention” as: “A duly constituted assembly of delegates or representatives of the people of a state or nation for the purpose of framing, revising, or amending its constitution.” [emphasis added] The enemies of amending the constitution claim that such a convention could result in throwing out the existing Constitution and framing a new one. However, those supporting such a convention have made it clear their purpose is to amend the constitution, not write a new one. It is clear from the Black’s definition employing the word “or” that such a convention can be simply for amending the Constitution. Nevertheless, to avoid confusion and deprive the enemies of such a convention of a lie with which to scare people, it is perhaps best to describe the reform effort as an Article V Amendments Convention, which is what is meant by the term Article V Convention. The further scare tactic that a “runaway” convention could result is absurd because ratification of any amendments would require approval by three-fourths of the state legislatures. )
In just the past month, the governor of Texas has called for an Article V convention to amend the Constitution, and Florida, West Virginia and North Dakota have passed resolutions to this effect in either their senate or house. Several other states seemed poised to add to the total. The campaign for government reform is gaining momentum!
Heartland Daily Podcast – Introducing Michael Hamilton: Heartland’s New Research Fellow for Health Care
In today’s edition of The Heartland Daily Podcast, host Donald Kendal introduces Heartland’s new Managing Editor of Health Care News (HCN) Michael Hamilton. Hamilton talks a bit about his background as well as several topics that will be featured in the upcoming issue of HCN.
Hamilton brings Kendal up to date on the latest regarding Medicaid expansion, Right to Try legislation, Certificate of Need laws, and the advancement of direct primary care. They also talk about the novel idea of price transparency – or allowing potential clients to compare prices of services between medical centers.
Sometimes there are men of principle who live their values and not merely speak or write about them. People who stand up to political evil at their own risk, and then go on to say and do things that help to remake their country in the aftermath of war and destruction. One such individual was the German, free-market economist, Wilhelm Röpke.
Born on October 10, 1899, Wilhelm Röpke died half a century ago on February 12, 1966. It seems appropriate to mark the fifty-year passing of one of the great European economists and advocates of freedom during the last one hundreds years.
In the dark days immediately following the rise to power of Adolf Hitler and his Nazi movement in Germany in January 1933, Röpke refused to remain silent. He proceeded to deliver a public address in which warned his audience that Germany was in the grip of a “revolt against reason, freedom and humanity.”
Nazism as the Destruction of Decent Society
Nazism was the culmination of Germany’s sinking into ”illiberal barbarism, Röpke said, the elements of which were based on: (l) “servilism,” a “longing for state slavery,” with the state becoming the “subject of unparalleled idolatry”; (2) “irrationalism,” in which ”voices” in the air called for the German people to be guided by “blood,” “soil,” and a “storm of destructive and unruly emotions”; and (3) “brutalism,” in which “The beast of prey in man is extolled with unexampled cynicism, and with equal cynicism every immoral and brutal act is justified by the sanctity of the political end.” Röpke warned that, “a nation that yields to brutalism thereby excludes itself from the community of Western civilization.” He hoped Germany would step back from this abyss before its people had to learn their mistake in the fire of war.
Röpke also spoke out against the Nazi dismissal of Jewish professors and students from German universities, which began in April 1933. The Nazis denounced him as an “enemy of the people” and removed him from his professorship at the University of Marburg. After an angry exchange with two SS men sent to “reason” with him, Röpke decided to leave Germany with his family, and accept exile rather than live under National Socialism.
A Man of Courage and Principle
Wilhelm Röpke was a leading intellectual figure of twentieth-century Europe. He combined conservatism with classical liberalism to develop a political philosophy he called a market-oriented “middle way” between nineteenth-century capitalism and twentieth-century totalitarian collectivism. He also became a spiritual guide and political-economic architect of Germany’s “social market economy” in the post-World War II era. As the famous Austrian economist, Ludwig von Mises, wrote when Röpke died in 1966 at the age of 66,
“For most of what is reasonable and beneficial in present-day Germany’s monetary and commercial policy credit is to be attributed to Röpke’s influence. He [is] rightly thought of as [one] the intellectual authors of Germany’s economic resurrection . . . The future historians of our age will have to say that he was not only a great scholar, a successful teacher and a faithful friend, but first of all a fearless man who was never afraid to profess what he considered to be true and right. In the midst of moral and intellectual decay, he was an inflexible harbinger of the return to reason, honesty and sound political practice.”
Röpke grew up in a rural community of independent farmers and cottage industry craftsmen. His father was a country doctor. That upbringing can be seen in his later belief that a healthy, balanced, small community is most fit for human life.
The event, however, that shaped his chosen purpose in life was his experience in the German army in the First World War. War was “the expression of a brutal and stupid national pride that fostered the craving for domination and set its approval on collective immorality,” Röpke explained. The experience of war made him decide to become an economist and a sociologist when the cannons fell silent. He entered the University of Marburg, from which he earned his doctoral degree in 1921. In 1929 he was appointed professor of economics at the University of Marburg, a position he held until his expulsion by the Nazi regime in 1933.
After leaving Germany in 1933 he accepted a position at the University of Istanbul, Turkey, In 1937 he was invited to become a professor of international economic relations at the Graduate Institute of International Studies in Geneva, Switzerland, a position he retained until his untimely death on February 12, 1966.
After the German occupation of France, Röpke was three times offered a teaching position at the New School for Social Research in New York (in 1940, 1941, and 1943) as a means of escape from Nazi-occupied Europe. But each time he turned down the invitation to leave neutral Switzerland, having decided to continue to be a voice for freedom and reason in a totalitarian-dominated Europe.
In the 1950s, after the war, he was an economic adviser to the government of West Germany. He also was one of the leading figures of a group of market-oriented German economists who in the postwar period became known as the Ordo-liberals; their purpose and goal was the construction of a “social market economy” that assured both an open, competitive order and minimal social guarantees.
Monetary Mismanagement and the Great Depression
In the 1920s and for part of the 1930s, a primary focus of Röpke’s writings was business-cycle theory and policy. His most significant work in this field was his 1936 volume Crises and Cycles. Röpke argued that a complex division of labor with a developed structure of roundabout methods of production, held together by the delicate network of market prices for finished goods and the factors of production, had the potential to occasionally suffer from the cyclical waves of booms and depressions.
The cause of such cycles was periodic imbalances between savings and investment in the economy. While not completely following the “Austrian” theory of the business cycle, Röpke’s approach moved along similar lines, arguing that a monetary expansion that kept the market rate of interest below the level that could maintain a balance between savings and investment would feed investment projects and cause misdirections of labor and resources into production processes in excess of the savings available to sustain them in the long run.
Röpke’s particular contribution to the analysis of the business cycle was his theory of what he called the “secondary depression.” When the boom ended, an economic downturn was inevitable, with the investment excesses of the upturn having to contract and be readjusted to the realities of available savings and the market-based patterns of supply and demand. But while serving on the German National Commission on Unemployment in 1930–1931, he came to the conclusion that there were negative forces at work at that time far beyond any normal type of post-boom adjustment.
The failure of cost prices to promptly adjust downward with the decline of finished-goods prices was causing a dramatic collapse of production and employment. Rising unemployment resulted in declining incomes that then created a new round of falling demands for goods in the economy, which in turn brought about another decrease in production and employment. At the same time, growing unprofitability of industry made businessmen reluctant to undertake new investments, resulting in the accumulation of idle savings in the financial markets. Such a sequence of events generated a cumulative contraction in the economy that kept feeding on itself.
Röpke concluded that this secondary depression served no healthy purpose, and the downward spiral of a cumulative contraction in production and employment could only be broken by government-induced credit expansion and public works projects. Once the government introduced a spending floor below which the economy would no longer go, the market would naturally begin a normal and healthy upturn that would bring the economy back toward a proper balance.
In 1933, when Röpke published in English an article explaining the findings of the German Commission on Unemployment, John Maynard Keynes expressed to Röpke his “great satisfaction” that German economists were reaching the same conclusions as he had, namely, that government needed to take an active role in steering the economy.
But Röpke had no sympathy for Keynes’s belief that the market was inherently unstable and permanently in need of government management of “aggregate demand.” In Röpke’s view the Great Depression represented a “rare occurrence” of an “exceptional combination of circumstances” that required “a deliberate policy of additional ‘effective demand’ into the economic system.”
But, Röpke continued, Keynes’s construction of a “general theory of employment” based on the exceptional circumstances of the early 1930s was a “counsel of despair” and an extremely dangerous one, because it created a rationale for continuous government tinkering and a strong inflationary bias harmful to the stability of the market economy in the long run. Indeed, Röpke became a leading critic of Keynesian economics after World War II.The Crisis of Western Civilization
But the central issue that absorbed almost all of Röpke’s intellectual and literary efforts in the 1930s and 1940s was what he considered the crisis of Western civilization, the most stark and terrible symptom of which was the rise of totalitarian collectivism as represented by Soviet communism, Italian fascism, and German National Socialism.
But the heart of Röpke’s critique of the decay of Western civilization and the path for its renewal was in a trilogy published during the war: The Social Crisis of Our Time 1942), Civitas Humana (1944), and International Order (1945). This was followed at the end of the war by The Solution of the German Problem (1945). And a further reformulation of his conception of a properly ordered and balanced society was offered in A Humane Economy: The Social Framework of the Free Market (1958).
The achievements of the eighteenth century, in Röpke’s view, were the use of reason for a balanced understanding of both the natural and social world; the awakening of an insight into the possibilities of a free, spontaneous order of market relationships; a conception of man that looked at him in proportionate human terms; and a sense of humanity in appreciating and wanting to improve the human condition. One of these insights was that a free-market order that both liberated man from the status and caste society of the past and dramatically improved his standard of living; and the liberal, democratic ideal in which the individual possessed rights to life, liberty, and property, and in which peace and tolerant political pluralism replaced imperial violence and political absolutism.
But as Röpke saw it, many of these achievements and successes had been twisted in the nineteenth century. The use of reason had become “unreasonable,” as there emerged a hyper-rationalism that claimed to have the power to discover the secrets for social engineering. The triumphs of the natural sciences in mastering the physical world had fostered a “cult of the colossal,” in which there was a worship of the things of the material world and the desire for the creation of objects bigger than human life. This cut man loose from all the societal moorings of family, community, and the harmonies of local life, And the ideal of democratic pluralism had been undermined and reduced, increasingly, into an arena of special-interest political plunder.Collectivism and the Termite State
The loss of traditional human connections, the dehumanization of man in mass society, and the corruption of the political and economic marketplaces, Röpke argued, had created the sociological and psychological conditions for the emergence of and receptivity to the collectivist idea and its promise of a new community of man, a transformation of the human condition, and a better society designed according to a central plan. All these were false promises and hopes. Collectivism, whether of the fascist or communist sort, meant the end of a rational economic order, threatened the loss of freedom and the end to human dignity, and required the reduction of man to the status of an insect in what Röpke often referred to as the socialist “termite state.”
Röpke was uncompromising in his insistence that only the market economy was consistent with both freedom and prosperity. Only the market, with its system of private property rights, provided the framework to harness individual incentives and creativeness for the benefit of society. Only the market could generate the competitive process necessary for the formation of prices that could successfully coordinate supply and demand. Only the market gave each individual the freedom to be an end in himself while also serving as a voluntary means to the ends of others through the mechanism of exchange.
Yet in Röpke’s view the market by itself was not enough. The humane society required going “beyond supply and demand,” to the construction of an institutional order that incorporated the market in a wider social setting. The market economy needed strong ethical moorings to give a sound moral foundation to market order. Röpke held views concerning the role of government in a free society that were wider than many free market advocates today might consider necessary and appropriate.
But beginning in the 1950s, Röpke argued that the growing politicization of economic and social life through an expanding interventionist-welfare state undermined the possibility for a successful international order based on peace, mutual prosperity, and a rational allocation and use of the resources of the world. International order required countries to practice sound policies at home: respect for private property, enforcement of contracts, protection for foreign investments, limited government intervention, and non-inflationary monetary policies.
Networks of international trade and investment would then naturally and spontaneously connect the world through private market relationships. For this reason, Röpke was doubtful that European economic and monetary integration could be successfully imposed as long as the member states were unwilling to follow the necessary domestic policies of limited government and open, competitive market capitalism. Tensions and conflicts were inevitable in an age dominated by collectivist and interventionist ideas.
A Voice of Reason in an Unreasonable World
Wilhelm Röpke was more than just an economist. During some of the darkest decades of the twentieth century, he sounded more like an Old Testament prophet warning of the dangers from a loss of our moral compass. Collectivism had few opponents in our century with as much of a sense of ethical purpose.
Precisely because he was an economist by training, Röpke understood the indivisibility of personal, political, and economic freedom in a way that many other critics of socialism in its various forms could never articulate. The appreciation of history and the historical context in his analyses only enriched the persuasiveness of his message. The rebirth of the market economy in Germany and in other parts of Europe after 1945 owes a great deal to his intellectual efforts and legacy.
In today’s edition of The Heartland Daily Podcast, Randal O’Toole, economic analyst at the Cato Institute, joins Host H. Sterling Burnett to talk about how the incentive structure facing public lands managers has resulted in mismanagement and the armed conflicts we saw in Nevada and Oregon.
He also discusses how government perversely controls private property in urban areas through growth control resulting in diminished liberty.
In this episode of The Heartland Daily Podcast, managing editor Jesse Hathaway talks with Electronic Frontier Foundation staff attorney Sophia Cope about the Federal District Court for the District of Central California’s recent demand that Apple, the $700 billion tech company producing consumer products like the iPhone and iPad, assist the Federal Bureau of Investigations with their investigation into the December 2, 2015 San Bernardino terrorist attack by devising a way to unlock the deceased terrorist’s iPhone without a password.
Apple is fighting the court order, claiming FBI is seeking unconstitutional powers that could lead to massive invasions of consumers’ privacy in the future by government agencies, Cope says. By requiring a company to hack its own products, the government is seeking to set a dangerous precedent that could lead to mass surveillance.
Requiring the software and hardware company to create an operating system lacking the privacy measures installed on the iPhone is also a form of involuntary conscription, Cope says, and technology companies are right to defy the order and protect their consumers’ privacy.
In today’s edition of The Heartland Daily Podcast, Adrian Moore, vice-president of policy at the Reason Foundation, joins Host H. Sterling Burnett to talk about two issues Moore has recently researched – the Flint water crisis and the Endangered Species Act.
Burnett and Moore talk about how the crisis in Flint, Michigan was the result of multiple failures throughout the state government. Moore explains the causes and the cure. They also discuss the looming threats to Florida and the rest of the nation from the Endangered Species Act (ESA) and how Texas headed off ESA problems to prevent the federal government from getting involved.
After months of debate and public comments, President Obama’s controversial Clean Power Plan (CPP) was issued in August 2015 and published in the Federal Register on October 23, 2015. But that is hardly the end of the story. Instead the saga is just beginning—with the ending to be written sometime in 2017 and the outcome highly dependent on who resides in the White House.
The CPP is the newest set of Environmental Protection Agency (EPA) regulations that the Atlantic states: “anchors the Obama administration’s climate-change policy. It seeks to guide local utilities away from coal-fired electricity generation, and toward renewable energy and natural gas”—with a goal of reducing CO2 emissions from existing power plants by 32 percent from 2005 levels by 2030. States are required to submit implementations plans by September 6, 2016 with emission reductions scheduled to begin on January 1, 2022.
Immediately following the rule’s publication, a coalition of 24 states and a coal mining company, led by West Virginia Attorney General Patrick Morrisey (R), filed a lawsuit to challenge the CPP. Morrisey called it: “flatly illegal and one of the most aggressive executive branch power grabs we’ve seen in a long time.”
The Hill reports: “They are asking the Court of Appeals for the District of Columbia Circuit to overturn the rule. They also want the court to immediately stop its implementation while it works its way through the courts.” Differing from the Cincinnati-based Court of Appeals for the Sixth Circuit that in October issued a stay for the Waters of the U.S. rule, on January 21, 2016, the federal court refused to put a hold on the CPP while the litigation proceeds. It did, however, agree to expedite the case with oral arguments beginning on June 2.
Days later, January 26, in an unusual move, the petitioners—which now include 29 states (Nevada is the latest to oppose CPP, to protect “Nevada’s vital tourism industry.” On February 24, Attorney General Laxalt filed a brief to highlight the federal agency’s overreach and disregard for the rule of law associated with CPP.) and a large group of utility companies and energy industry trade groups—turned to the Supreme Court (SCOTUS). Morrisey acknowledged: “While we know a stay request to the Supreme Court isn’t typical at this stage of the proceedings, we must pursue this option to mitigate further damage from this rule.” Knowing that SCOTUS has never before engaged in a case before a federal court even heard the initial arguments, CPP supporters, like Sierra Club Chief Climate Counsel Joanne Spalding, apparently felt confident, calling the appeal: “another ‘Hail Mary’ challenge to the Clean Power Plan.”
Citing SCOTUS’ 2015 ruling that reversed the Mercury Air Toxics Standards (MATS) rule, petitioners argued that the damage from MATS had already been done by the time the decision came down. In a Client Alert, international law firm Milbank—which works in the energy space—said: “The EPA itself acknowledged that the ruling had virtually no impact, as states had already largely complied with the regulation by the time the Court’s order was issued.”
Despite the historic nature of the request, on February 9, in a 5 to 4 majority, SCOTUS granted an emergency stay of CPP. Milbank states: “The issuance of stay signaled that five of the Supreme Court justices had significant reservations about the EPA’s attempt to regulate emissions from power plants in the way the CPP is currently designed. To grant the stay, the Supreme Court must have found that there was a ‘fair prospect’ that a majority of the Court would vote to reverse a judgment if the D.C. Circuit were to uphold the CPP.” Morrisey agrees: “the decision reinforces confidence in the broader challenge as the Supreme Court found the coalition’s arguments strong enough to stop the EPA even before the lawsuit concludes.” The victory means the EPA is prohibited from implementing or enforcing the CPP until the D.C. Circuit issues a decision on the challenge—which is expected as early as this fall. FuelFix reports: “The conventional wisdom is the three-member court panel will rule favorably for the White House.”
As 18 states opposed the application for the stay, whatever decision the lower court reaches, most experts agree SCOTUS will eventually hear the case—likely in 2017.
CPP opponents saw the stay as a sign SCOTUS might strike down the rule. Seth Jaffe, a former president of the American College of Environmental Lawyers, according to the Atlantic, sees it as an “ominous sign for the regulations.” Jaffe said: “One has to conclude that five justices have decided that the rule must go.”
Confidence ebbed, however, with the death of Justice Antonin Scalia—just four days after the court’s unprecedented stay order. As a conservative voice on the court, Scalia had a history of limiting government regulation and was a scathing critic of EPA’s regulation of greenhouse gas emissions. Depending on who fills the empty seat, and when, the court’s decision could go one way or the other.
Regardless, the EPA is continuing to move forward and is encouraging states to take voluntary steps toward compliance and is supporting those who do.
States have reacted differently to the stay. Many states, such as Massachusetts, Arizona, and Virginia are moving ahead with their plans. Some are already well into their CPP compliance plans, with California expected to submit its plan ahead of schedule. Ohio Public Utility Commissioner Asim Haque, reports that they were “already close to completion,” but the commission has put analysis on hold for now.
Texas, whose Attorney General Ken Paxton (R) shared the lead with Morrisey on requesting the stay, is in a holding pattern. Toby Baker, a commissioner on the Texas Commission on Environmental Quality, according to FuelFix, said: “I’ve watched states get in front of their skis on federal regulations, and then the regulations come out and they don’t match. I do feel like the [clean power plan] will change from what it is right now.”
Following the SCOTUS decision, Wisconsin Governor Scott Walker (R) issued an executive order prohibiting state agencies from doing any work to prepare for the CPP until the stay expires. Citing “undue burden” on state ratepayers and manufacturers, he argued that the rule could have a “devastating impact.”
Because the SCOTUS stay halts enforcement of the CPP until the court challenge concludes, and delays the EPA’s deadlines, Morrisey and Paxton, in a February 12 letter to the National Association of Regulatory Utility Commissioners and the National Association of Clean Air Agencies, encouraged them to “put their pencils down.” They point out: states “have no legal obligation to continue with spending taxpayer funds on compliance efforts for a suspended and likely unlawful Power Plan. …Any taxpayer dollars spent during the judicial review process are unnecessary and likely to be entirely wasted.”
Pennsylvania Coal Alliance CEO John Pippy, a leading advocate for the coal industry in his state, argues that there are “serious concerns regarding the resources that will be wasted attempting to develop a compliance plan, at the expense of the taxpayers, for a rule that may be significantly altered or thrown out by the Federal Courts.”
With the court challenge coming up in a few months, last week, February 23, led by Senate Majority Leader Mitch McConnell (R-KY) and Senate EPW Committee Chairman James Inhofe (R-OK), 34 Senators and 171 Representatives filed an amicus brief urging the Circuit Court to “block the EPA’s attempts to transform the nation’s electricity sector.” As the press release states, the lawmakers believe the rule “goes well beyond the clear statutory directive.” It points out: “States will face unprecedented new regulatory burdens, electricity ratepayers will be subject to billions of dollars in compliance costs, and American workers and their families will experience the hardship of job losses due to power plant shutdowns, higher electricity prices, and overall diminishment of the nation’s global economic competitiveness.”
Congressman Kevin Cramer (R-ND) says he joined his colleagues in filing the brief because “The EPA’s actions are clearly illegal and violate the expressed intent of Congress.” He sees that his state has been singled out. The initial proposed rule required South Dakota to reduce emissions by 11 percent, but the final rule required a “detrimental 45 percent.” Cramer concludes: “North Dakota’s electricity producers provide some of the most affordable electricity and maintain some of the cleanest air, but this Admiration’s focus on implementing a radical environmental agenda threatens our economic future.”
Now, we wait for the CPP to make its way through the courts—first the D.C. Circuit Court and then, in 2017, the Supreme Court. But, since the CPP is on hold until at least 2017, its future will really be decided by the next president. Milbank states: “the next administration could seek to alter, cease or continue efforts to implement the existing CPP. Should a Republican reach the Oval Office, this could result in a permanent halt of the EPA’s implementation of the plan altogether, or a significant departure from current emission reduction targets. Yet, should a Democrat be elected, the new administration could push forward with the CPP while exploring additional provisions of the Clean Air Act.”
Of course, as things stand now, the next president will be appointing Justice Scalia’s replacement. “If a Republican wins the White House, the Atlantic observes, “their nominee would almost certainly join the Supreme Court’s conservative wing. That justice would be unlikely to vote to support the Clean Power Plan—but it wouldn’t matter, because no remaining Republican supports Obama’s climate policies, anyway, so they’d likely be reversed administratively.”
With a Republican president, there’ll be other changes that could impact the CPP. The EPA, should it not be eliminated, will have a new Administrator. Gina McCarthy will no longer be in charge and influencing policy. If the CPP were actually argued before the court, it would be under the guidance of new leadership and could be presented in a very different way.
Since the CPP will not be argued in the Supreme Court until 2017, when the next president will be in office, it really is the winner on November 8, 2016, who determines the legal battle of the CPP—which will either embrace or eradicate Obama’s climate change policies and the Paris Agreement. Considering the CPP will, as Morrisey pleads, cause “even more destruction of untold number of jobs, skyrocketing electricity bills and the weakening of the nation’s electric grid,” the stakes couldn’t be higher.
The author of Energy Freedom, Marita Noon serves as the executive director for Energy Makes America Great Inc., and the companion educational organization, the Citizens’ Alliance for Responsible Energy (CARE). She hosts a weekly radio program: America’s Voice for Energy—which expands on the content of her weekly column. Follow her @EnergyRabbit.
A distinguished group of scholars from a diverse group of organizations has produced a new report stating when considering domestic action to reduce the impacts of climate change, U.S. agencies should limit their estimates to the domestic benefits, not benefits to the world. The Obama administration does just the opposite, using global estimates of “social cost of carbon” (SCC) and the social value of reduced climate damages from regulations that reduce greenhouse gas (GHG) emissions. The scholars point out,
Use of a global SCC as the sole summary measure of the value of reducing GHG emissions through federal rulemaking lacks transparency and leaves such actions at odds with the expressed intent of authorizing statutes passed by Congress and long-standing federal regulatory policy. [F]ederal agencies – operating under laws directing them to protect national interests – are now issuing regulations with significant costs to U.S. residents and citizens based on a finding that benefits, including substantial benefits to foreigners, “justify” those costs.
The difference between global and domestic benefits is huge, with global SCC four to 14 times greater than estimated domestic SCC. By using the global SCC, federal agencies are hiding the fact climate regulations impose substantial costs on Americans to produce benefits for residents of foreign countries.
Wake up world, you’ve been disintermediated.
Google now essentially stands between you and most everyone and everything on the Internet.
Google’s dominant search engine + its dominant Android operating system (OS) + its world-leading Chrome web browser + its uniquely-comprehensive, Internet utility functionality of193 products, services and tools = a virtual Google “Inner-net” regime.
Google’s Inner-net has practically assimilated most all of what the public open-source WorldWideWeb does for Internet users and much, much, more. And it also has practically insinuated Google-controlled code into a virtual intermediary position between most everyone and most everything on the Internet.
Think of the WorldWideWeb increasingly as the public and open façade of the Web, and Google’s Inner-net as Google’s private, and more closed regime of mostly-dominant, Google-controlled operating systems, platforms, apps, protocols, and APIs that collectively govern how most of the Web operates, largely out of public view.
This makes Google your de facto global governing gatekeeper technically for most all things Internet, if you are an Internet platform, network, business, competitor, advertiser, service provider, manufacturer, content provider, app developer, stakeholder, group, or user.
In other words, one now must go through Google-controlled code somehow to virtually access most all competitive Internet information, apps, devices, software, APIs, networks, the cloud, the Internet of things, etc. — going forward.
And the Google gatekeeper’s gazillion gates tend to remain open and free for only as long as it takes for Google to become dominant in the new targeted area, and then Google tends to close those supposed ‘open’ gates with default settings that favor Google. Google’s default dominance rule-of-thumb is that ~90% of users automatically acquiesce to new Google default settings.
What an epic failure of antitrust enforcement this is.
The FTC obviously facilitated Google’s dominance in approving its acquisitions of DoubleClick and AdMob, and in suspiciously shuttering its Google search bias and Android tying investigations shortly after the 2012 Presidential election.
Remember the Clinton Administration DOJ blocked the Microsoft-Intuit acquisition in 1995 which prevented the vertical-ization of Microsoft’s OS dominance of the tech sector into other sectors, and successfully sued Microsoft in 1998 for monopolization in bundling its Internet browser into its dominant Windows operating system.
Until EU Competition Commissioner Margrethe Vestager got very serious about Google antitrust enforcement this past year, previously negligent antitrust enforcement authorities facilitated a dominant Google search and search advertising business by approving challenged acquisitions that later proved anticompetitive, and facilitating monopolization of the mobile operating system market by ignoring the anticompetitive bundling ramifications of its dominant search business being contractually tied with Android, Chrome, YouTube, Maps, Play, Gmail, etc. via Android OEM contracts.
Commissioner Vestager’s expected decision in the coming weeks that Google search is indeed dominant at >90% EU market share, and that it has abused its search dominance in preferencing its own shopping service over competitive shopping services, likely will prove to be powerful precedents for the queue of EU and private antitrust complaints lined up to build upon them.
The biggest development everyone appears to be ignoring is the huge anticompetitive implications of Google’s plans to consolidate its Chrome browser-based operating system with its Android mobile operating system this year — per WSJ reporting.
Simply, folding Chrome’s browser-based OS into Android’s App-based mobile OS would create one global, heavily-bundled, Google Inner-net operating system that could auto-default to Google’s: Search, browser, ad-tech platform, Analytics, Translate service, Gmail, YouTube video distribution, Map location services, RCS multimedia messaging services, Apps, Play store, etc.
And Google’s Inner-net operating system default search and browser could then preference or auto-suggest any or all of Google’s 193 products and services including: 23 search tools, 10 advertising services, 33 communications and publishing tools, 15 development tools, 13 map-related products, 7 operating systems, 11 desktop applications, 46 mobile applications, 27 hardware products, and 8 general services.
This pending sweeping opportunity for Google to much more broadly self-deal or preference Google platforms, apps, products, services and tools over competitors’ offerings raises the stakes on whether Commissioner Vestager’s remedy for Google’s abuse of search dominance case will require Google to abide by a firm, enforceable, and accountable, non-discrimination-principle-remedy, like the EU made Microsoft abide by for several years in its antitrust remedy for Microsoft anticompetitively favoring its Explorer browser over competitive browsers.
Ironically, Google will have an especially hard time credibly opposing a future mandate of an EU non-discrimination-principle-remedy for tying its current market-leading Chrome browser to its dominant Android mobile operating system.
That’s because in 2009, Google’s current CEO, Sundar Pichai, helped publicly lobby the EU in a Google blog post stating: “Internet Explorer is tied to Microsoft’s dominant computer operating system, giving it an unfair advantage over other browsers.Compare this to the mobile market, where Microsoft cannot tie Internet Explorer to a dominant operating system, and its browser therefore has a much lower usage.”
In sum, as critically important as the EU’s final decision is on Google search dominance and its abuse of dominance in Google shopping for online businesses dependent on search, the EU’s Android OS tying investigation is as critically important to offline businesses that Alphabet is targeting with disintermediation going forward: ISPs; automakers; manufacturers of drones, robots, wearables, and home energy/automation devices; and biotech, health care, and finance-related companies, among others.
In a nutshell, Google search and search advertising is about dominating the virtual world of the Web and online content of all kinds. One the other hand, Google’s Android operating system/browser is about also dominating the real world of all IP-enabled devices, vehicles, drones, robots, networks, sensors, cameras, microphones, wearables, implants, and the Internet of things.
Any industry in the real world targeted by Alphabet for disintermediation should ask industries in the online world what it is like to try and compete against an unaccountable, dominant, Google global-gatekeeper and biased-broker that self-deals with impunity.
Forewarned is forearmed.
Scott Cleland served as Deputy U.S. Coordinator for International Communications & Information Policy in the George H. W. Bush Administration. He is President of Precursor LLC, an emergent enterprise risk consultancy for Fortune 500 companies, some of which are Google competitors, and Chairman of NetCompetition, a pro-competition e-forum supported by broadband interests. He is also author of “Search & Destroy: Why You Can’t Trust Google Inc.” Cleland has testified before both the Senate and House antitrust subcommittees on Google and also before the relevant House oversight subcommittee on Google’s privacy problems.