Category Archive: Liberty
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Is political correctness why Trump won? Watch the Unsafe Space Tour panel discussion at Harvard University, featuring Steven Pinker, Wendy Kaminer, Robby Soave and Brendan O’Neill. Moderated by Tom Slater (of Spiked Magazine).
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What’s the evidence that economic freedom is beneficial for society? Prof. Antony Davies shows charts of the free market’s effects on unemployment, inequality, poverty, and even child labor.
Comments Off on The dirty word that gives us our freedom
Competition is often considered a dirty word, with many critics of free market ideas emphasizing the cutthroat competition of Wall Street as an example of how competition brings out the worst in people, encourages us to cut corners, and undermines our altruistic tendencies.
Proponents of competition often talk in terms of innovation: competition spurs innovation, giving consumers options they didn’t have before. But even that defense isn’t enough for people who don’t understand the true importance of competition and innovation. Take Bernie Sanders’s derision of innovation as just a way to get lots of different deodorant on the shelves, for example.
The Problem with the Way We Think about Competition
What’s problematic about both the criticism and the common defense of competition? Both underestimate precisely why competition is so important. Competition does more than spur innovation or provide people with different kinds of deodorant. In some cases, competition provides us with the powerful freedom to decide what happens to our bodies and is the only thing that makes informed consent meaningful. This connection is particularly important in health care, but the importance of competition to human freedom applies in other areas as well.
A particularly painful and poignant case study came out of Kentucky earlier this month: after one birth center owner spent many hundreds of thousands of dollars fighting the state’s Certificate of Need process, a Kentucky Appeals Court ruled that birth centers cannot compete with hospitals for maternity patients. This decision ignored that pregnant women in Kentucky want birth centers, are demanding birth centers, and that birth centers provide higher quality and lower cost care for low-risk pregnant women than hospitals do.
The Broader Implications of Kentucky’s Ruling on Birth Centers
While this may seem like a narrow case that applies just to pregnant women in Kentucky, its implications are far broader. What this case really does is tell pregnant women in Kentucky what they are allowed to do with their bodies. It tells entrepreneurs who are providing a safe and effective service that they are not allowed to make a living helping other people. It condemns birthing women to worse outcomes, higher rates of interventions, and worse treatment than they want, expect, and demand. And cases like this happen all over the United States each day, affecting everyone from children to the elderly. Government at all levels controls the options you have access to for urgent care clinics, surgical clinics, hospitals, and other health-care providers.So what’s the point? Competition doesn’t just allow for innovation. Competition prevents us from being hemmed in by what other people want for us. It provides us with choices about what happens to the things we hold most dear. Without the diversity of options competition provides, freedom is literally meaningless.
Pregnant women in Kentucky have been denied the opportunity to make basic decisions about what happens to their bodies. If you think this kind of intervention only applies to pregnant women, you’re wrong. Once you peel back the layers of other kinds of government regulation, you’ll find that the government controls a lot more than you realize about what happens to your body, your livelihood, your family, and your community.
So let’s stop talking about competition as the thing that provides us with lots of different brands of deodorant. Instead, let’s start talking about competition as perhaps the most necessary component of a free society.
Comments Off on 3 reasons why the NRA is so powerful
Why is the National Rifle Association such a powerful organization? The reason is that in politics, small but organized groups win.
Politics in Washington is about concentrating and focusing power. Large groups have trouble doing that, but small groups focus power very well. The reason is that effective political groups form if individuals think that they benefit by participating. Social scientists call this the free-rider problem.
Imagine you belong to a club or fraternity. You have a party. People promise to show up the next day to help clean the house. The free-rider problem is that everyone likes having the house cleaned up, regardless of whether they helped clean it. So, who shows up to help clean the house?
Mancur Olson, the renowned 20th-century economist, identified three factors that will help us predict what happens.
- Individual benefits — Not many people enjoy cleaning up the house after a party. Still, in any group, some people always show up for everything. But there aren’t enough of those people to solve the problem.
- Group size — If there are only six people in your frat, it’s easier to get help than if there were a hundred. In a large group, everybody thinks, “Let someone else do it. I’ll just sleep.” But if there are only a few members, you know you need to help.
- Selective incentives — One word: donuts. Or maybe sausage biscuits. Some reward that only goes to the people that actually show up and work for the group.
What does this have to do with the NRA? Suppose you’re opposed to guns and favor stricter gun control laws, but you know the individual benefits to any one person from organizing are very small. Further, if stricter laws are passed, all the supporters win, whether they contributed or not. There are thousands and thousands of people who think that way. So, the potential group size is very large, and it’s hard to organize.
What about selective incentives? Not much hope there, either. If you go to a gun control meeting, all you see is some very earnest people handing out folders and wondering why so few people came to the meeting. Is the NRA different? You bet.Gun rights supporters are not a small group, so group size isn’t the reason. But individual benefits are important because NRA members not only like guns but, in many cases, actually own guns. So, they have something personally at stake in the issue.
Furthermore, if you go to a meeting of pro-gun folks, you’ll get to see … guns! Old guns and rare guns. You can join safety classes and marksmanship classes. Even people who might support gun control would enjoy a gun show.
These sorts of differences explain a lot about our political system generally. Special interest groups that have focused benefits, relatively small numbers, and the ability to offer selective incentives have disproportionate power.
The problem is this means government policy may not be guided by what’s best for the public at large. Organized interest groups are able to control a lot of policy making, even if most people in the unorganized public disagree with them. Perhaps that’s a reason to be wary of giving the government certain powers in the first place.
The article above was adapted from the transcript of a Learn Liberty video featuring Professor Michael Munger, “Why Is The NRA So Powerful?”:
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Why does America put so many people in jail? Is it because we have lots of guns? Lots of criminals? Or lots of laws turning nonviolent people into criminals? Watch this UNSAFE SPACE debate featuring Heather Mac Donald and Prof. Thaddeus Russell.
UNSAFE SPACE is a live show and podcast where comedians do standup on controversial topics, then have a discussion with experts and the audience. See more at UnsafeSpaceShow.com. To view the debate in its entirety, see the full episode here.
Comments Off on Reddit AMA with Professor Ilya Somin of George Mason University
Ilya Somin is Professor of Law at George Mason University. His research focuses on constitutional law, property law, and the study of popular political participation and its implications for constitutional democracy.
Professor Somin has written extensively on constitutional theory, federalism, political ignorance, property rights, immigration, and a wide range of other important policy issues. He is a prolific contributor to the Volokh Conspiracy blog hosted by the Washington Post, and his work has been featured in other major publications such as the Wall Street Journal, New York Times, Los Angeles Times, CNN, USA Today, and Forbes. He’s also the author of several well-received books, including Democracy and Political Ignorance: Why Smaller Government is Smarter (Stanford University Press, Second Edition, 2016), and The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain (University of Chicago Press, 2015).
Fans of Learn Liberty will recognize Professor Somin as the star of our popular video, I Can’t Breathe: How to Reduce Police Brutality, and as a regular contributor to our blog, where he has written about the politics of sci-fi and fantasy series such as Star Wars, Star Trek, and Game of Thrones.
Mark your calendar for Tuesday, September 19th at 3:00pm ET and join us for a conversation at Reddit.com/r/Politics where you can ask him anything!
Update: The AMA is now live!
Comments Off on Breaking the wheel of Westeros: why heroes aren’t enough
In a famous scene in Season 5 of Game of Thrones, Daenerys Targaryen compares the struggle for power in Westeros to a spinning wheel that elevates one great noble house and then another. She vows that she does not merely intend to turn the wheel in her own favor: “I’m not going to stop the wheel. I’m going to break the wheel.”
In the world of the show, Daenerys’s statement resonates because the rulers of Westeros have made a terrible mess of the continent. Even those who are not sadistic (like King Joffrey), or venal (like many of the leaders of the great houses) do little to benefit the common people, and often end up making their lot even worse than before. Their conflicts have left Westeros devastated and poorly prepared to face the menace of the undead White Walkers, who are about to invade from the north. Even such seemingly idealistic leaders as Ned and Robb Stark and Stannis Baratheon end up exacerbating the carnage rather than improving things.
Even in earlier, more peaceful times, the ruling class mostly preyed on the people rather than provide useful public goods. Both George R.R. Martin’s Song of Ice and Fire book series and the HBO series based on it drive home the point that Westeros’s political system is dysfunctional and that its problems go beyond the flaws of any one ruler.
Daenerys’s desire to “break the wheel” suggests the possibility of a better approach. But, what exactly, does breaking the wheel entail?
Good Intentions and Flawed Execution
Even in the late stages of the still-ongoing Season 7, Daenerys seems to have little notion of what it means beyond defeating her enemies and installing herself as Queen on Westeros’s Iron Throne. She recognizes that Westeros’s previous rulers — including her father, the “Mad King” Aerys – committed grave injustices. But it is not clear how she intends to avoid a repetition of them.
Even if Daenerys herself can be trusted to rule justly and wisely as an absolute monarch, what will happen after she is gone? Recent occupants of the Iron Throne have had a short life expectancy. None of the last five have died a natural death. In a recent episode, Daenerys’s chief adviser, Tyrion Lannister, asked: “After you break the wheel, how do you make sure it stays broken?” Daenerys has no good answer to this important question.
Unlike most of the other rulers we see in the series, Daenerys has at least some genuine interest in improving the lot of ordinary people. Before coming to Westeros, she and her army freed tens of thousands of slaves on the continent of Essos. She delayed her departure from Essos long enough to try to establish a new government in the liberated areas that would — hopefully — prevent backsliding into slavery.
Nonetheless, it is not clear whether Daenerys has any plan to prevent future oppression and injustice other than to replace the current set of evil rulers with a better one: herself. The idea of “breaking the wheel” implies systemic institutional reform, not just replacing the person who has the dubious honor of planting his or her rear end on the Iron Throne in King’s Landing. If Daenerys has any such reforms in mind, it is hard to say what they are.
Daenerys most recently restated her desire to break the wheel in episode 4 of season 7, when she announced it to a group of captured enemy soldiers. Immediately afterwards, she proceeded to execute two of the prisoners, Lord Randyll Tarly and his son Dickon, because they refused to swear allegiance to her. Daenerys orders one of her dragons to burn them to death.
Lord Tarly is a far from sympathetic character, one who has committed significant injustices. Dickon was, arguably, complicit in some of them. Nonetheless, this is an example of Daenerys ordering a brutal execution of prisoners without any due process, primarily because they refused to “bend the knee” to her.
It is not a massive injustice on the scale of those committed by her enemies and predecessors. But it also does little to reassure the people that the new regime will be fundamentally different from the old. Life and death are still decided by the word of the king or queen, with no institutional safeguard against the abuse of such arbitrary power.
The King in the North
Daenerys’s failure to give serious consideration to institutional problems is shared by the other great leader beloved by fans of the show: Jon Snow, the newly enthroned King in the North. Perhaps even more than Daenerys, Jon has a genuine concern for ordinary people. He at one point even sacrificed his life in an attempt to save them (he was later, of course, resurrected). Unlike Daenerys — to say nothing of the other contenders for the Iron Throne — Jon seems to have little in the way of lust for power. He clearly did not really want the northern lords to make him King in the North, and views the position as more a burden than a privilege.
To an even greater extent than Daenerys, however, Jon does not have any real notion of institutional reform. Almost by default, he accepts traditional institutional forms, including the kingship of the North itself. In fairness, Jon has been preoccupied first with retaking the North from the villainous Ramsay Bolton, and later with preparing for the war against the White Walkers. But there is little evidence that he even perceives the need for institutional change, much less has a plan to effectuate it.
Heroes and Villains vs. Institutions
What kind of institutional reform can realistically be achieved in Westeros? It is difficult to say with certainty. The continent is, after all, a fantasy world, and only its creators can really say what might be possible there.
But in Medieval Europe, on which Westeros is roughly based, parliaments, merchants’ guilds, autonomous cities, and other institutions eventually emerged to challenge and curb the power of kings and nobles. These developments gradually helped lead to the Renaissance, the Enlightenment, and the economic growth that led to modern liberal democracy. Few if any such developments are in evidence in Westeros, which seems to have had thousands of years of economic, technological, and intellectual stagnation.
The characters in the books and the TV show are not the only ones who largely ignore the need for institutional change. We the fans are often guilty of the same sin. Few fans watch the show with an eye to institutional questions.
Rather, we are fascinated by the doings of the more prominent characters. Who will prevail in the struggle for power? Who will score an impressive victory in battle or single combat? Will Cersei ever completely alienate her increasingly disillusioned brother Jaime, with whom she has had a longstanding incestuous relationship? Will Daenerys and Jon finally develop the long-foreshadowed incestuous relationship of their own? Unbeknownst to either, she is likely his aunt.
These are the kinds of questions that excite many fans. Relatively few wonder whether and when Westeros will get a parliament, secure property rights, or establish some semblance of the rule of law.
All of this is entirely understandable. Most of us read fantasy literature and watch TV shows to be entertained, not to get a lesson in political theory. And it is much easier to develop an entertaining show focused on the need to replace a villainous evil ruler with a good, heroic, and virtuous one, than to produce an exciting story focused on institutional questions. Writers and showrunners tend to follow the former approach.
The Star Wars series, one of the few sci-fi/fantasy franchises even more popular than Game of Thrones, is just one of many pop culture products that exemplify the same trend. Game of Thrones/Song of Ice and Fire is comparatively unusual in even raising the possibility that institutional reform is the real solution to its fictional world’s problems, and in making this idea one of the central themes of the story.
The Real World Has a Dangerous Wheel of Its Own
However understandable, the pop culture fixation on heroic leaders rather than institutions reinforces a dangerous tendency of real-world politics. The benighted people of Westeros are not the only ones who hope that their problems might go away if only we concentrate vast power in the hands of the right ruler. The same pathology has been exploited by dictators throughout history, both left and right.
It is also evident, in less extreme form, in many democratic societies. Donald Trump won election by promising that he could solve the nation’s problems through his brilliant leadership if only we gave him enough power: “I alone can do it,” he famously avowed at the 2016 Republican National Convention. Before him, Barack Obama promised that he could transcend the ordinary limitations of politics and bring “change we can believe in.”
More generally, voters are prone to support charismatic leaders who promise to change the flawed status quo, without giving much thought to the possibility that the new policies may be as bad or worse than the old. They also rarely consider the likelihood that real improvements require institutional reform, not merely a new leader. The spinning wheel of Westeros has its counterpart in the wheel of American politics, where one set of dubious politicians replaces another, each promising that they are the only ones who can give us the “change” we crave.
For all its serious flaws, our situation is not as bad as that of Westeros. But we too could benefit from more serious consideration of ways to break the wheel, as opposed to merely spin it in another direction. And our popular culture could benefit from having more stories that highlight the value of institutions, as well as heroic leaders. However much we love Daenerys and Jon, they and their real-world counterparts are unlikely to give us a better wheel on their own.
Comments Off on Expert Answers on the Drug War: Highlights from Prof. Jeff Miron’s AMA
Last week, Professor Jeffrey Miron joined us on Reddit for an “Ask Me Anything” conversation as part of the Learn Liberty Reddit AMA Series.
The conversation focused on Dr. Miron’s 30+ years of study on the effects of drug criminalization. Check out some of the highlights below.
Comments Off on If you want to be free, it’s time to break through your own resistance.
Every morning when I sit down to write, I face what Steven Pressfield calls “Resistance,” a force that has knocked me down more times than I care to admit.
In his book The War of Art, Pressfield describes Resistance as “a repelling force. It’s negative. Its aim is to shove us away, distract us, prevent us from doing our work.” Beginning a new diet or exercise program? Starting a new career? Start a new business? Taking a principled stand? Researching graduate programs or finishing your dissertation? Learning about liberty? Resistance arises, Pressfield explains, whenever you attempt “any act that rejects immediate gratification in favor of long-term growth, health, or integrity.” We have all faced it.You won’t face Resistance when you binge-watch Netflix instead of getting on the elliptical sitting idle in your basement. Resistance will cheer when you eat the donut today and promise to cut back on refined carbohydrates tomorrow. Use work time to check your email, the weather, or Facebook and you won’t feel the force of Resistance.
The consequence of Resistance is the same for all of us. In short, as Pressfield writes, “Most of us have two lives. The life we live, and the unlived life within us. Between the two stands Resistance.”
Why understanding resistance matters
In the grip of Resistance, we rationalize our bad choices and attempt to eschew responsibility. We are mistaken if we believe that Resistance is generated outside ourselves. Pressfield tells us bluntly, “Resistance seems to come from outside ourselves. We locate it in spouses, jobs, bosses, kids.… Resistance arises from within. It is self-generated and self-perpetuated. Resistance is the enemy within.”
Philosopher Eric Hoffer puts it this way in his book on the nature of mass movements, The True Believer:
The tendency to look for all causes outside ourselves persists even when it is clear that our state of being is the product of personal qualities.… It is understandable that those who fail should incline to blame the world for their failure.
If Resistance gets in the way of using our talents and we do nothing to overcome it, what comes from the inevitable personal frustrations? Hoffer observes that liberty is threatened,
People whose lives are barren and insecure seem to show a greater willingness to obey than people who are self-sufficient and self-confident. To the frustrated, freedom from responsibility is more attractive than freedom from restraint. They are eager to barter their independence for relief from the burdens of willing, deciding and being responsible for inevitable failure. They willingly abdicate the directing of their lives to those who want to plan, command and shoulder all responsibility.
Freedom can alleviate frustration, Hoffer explains, because it makes available palliatives such as action. But Hoffer asks, “Of what avail is freedom to choose if the self be ineffectual? Unless a man has the talents to make something of himself, freedom is an irksome burden.”
Frustrated by our own inaction, Hoffer warns, “We join a mass movement to escape individual responsibility, or, in the words of the ardent young Nazi, ‘to be free from freedom.’”
Perhaps, yielding to Resistance, we complain endlessly and boorishly about the bad breaks life has handed us and how unfairly we have been treated. Do we then, as Friedrich Hayek writes in The Road to Serfdom, wish to be “relieved of the necessity of solving our own economic problems?”
You can’t overcome Resistance as long as you think the problem is external. Beaten by Resistance, I have made up alibis and rationalizations. I was too tired, too busy, too upset by events of the day — the self-deception goes on.
Pressfield writes, “Procrastination is the most common manifestation of Resistance because it’s the easiest to rationalize.” We tell ourselves we are going to do the task, just not right now. When we wait for the perfect set of circumstances to face Resistance, we wait a long time. No one’s glass is full of perfect circumstances.
“Not right now” has terrible consequences. Have you ever seen an article that demonstrates the difference in accumulated wealth when you start saving for retirement, for example, at age 25 as compared to age 35? Compounding makes a huge difference in accumulated wealth.Your career capital, like financial capital, is subject to compounding. Those who overcome Resistance and work at what is important to them, grow their career capital; those who yield to Resistance stagnate. If you are not doing what is critical today, tomorrow, and next week, it is very difficult to make it up.
Resistance doesn’t come from the action but from our thinking about the action. The more we fear and resist our Resistance, the stronger our Resistance becomes. As soon as you turn your full attention to the action required, Resistance yields.
There is a moment each morning when you open your eyes to a fresh day. Pause to notice this moment. Then observe how quickly Resistance steps in, reciting your problematical circumstances, your back pain, your 3 pm meeting, your commute, your difficult project. Attend to those thoughts and Resistance already has the upper hand. Let those thoughts pass without engaging them and Resistance yields.
We all have our own flavors of Resistance—simple awareness of the many forms your Resistance takes can help you gently walk around it. There probably won’t come a morning when Resistance won’t arise, but there can come a morning when you won’t fight with or fear your Resistance.
Become more aware of times you catch yourself thinking “not right now.” We always have rationalizations for yielding to Resistances, but yielding creates frustration, and as frustration grows there are consequences for society and the future of liberty. Pressfield puts it this way: “[T]he truly free individual is free only to the extent of his own self-mastery. While those who will not govern themselves are condemned to find masters to govern over them.”
Comments Off on Reddit AMA with Professor Jeffrey Miron of Harvard University
The Learn Liberty Reddit AMA Series continues on Wednesday, August 9th, with renowned economist and professor, Jeffrey Miron, senior lecturer and director of undergraduate studies in the Department of Economics at Harvard University.
Dr. Miron has written over 100 op-eds for publications such as the New York Times, Washington Times, Boston Herald, CNN, Time, Huffington Post, The Daily Caller, and Newsweek. He has also written several books, including Drug War Crimes: The Consequences of Prohibition (2004) and Libertarianism: from A to Z (2010). You may recognize him as the star of one of Learn Liberty’s all-time fan-favorite videos: “Top Three Myths of Capitalism.”
Mark your calendar and join us for the conversation on Reddit, Wednesday, August 9th at 3:00pm ET, where you’ll have the chance to ask him anything!
UPDATE: The AMA is now live!
Comments Off on Vaping bans: How the FDA is making it harder to quit smoking
If you were struggling to kick a habit like smoking that endangered your health, which would you prefer: trying an alternative that, while not perfectly safe, was significantly less harmful, or giving up and sticking with your deadly habit?
The answer seems obvious, and it should. Harm reduction — opting for a product or activity that is not harmless but is better than the existing alternatives — is a common strategy that we use almost unthinkingly.
That principle needs to be applied in public policy, and the FDA’s coming vaping ban shows us why. Because e-cigarettes don’t burn tobacco (they deliver nicotine through a liquid that’s heated until it vaporizes), they are intrinsically less dangerous than smoking tobacco-containing cigarettes — 95 percent less harmful, according to Public Health England. So it would make sense to encourage people who are unable or unwilling to give up the habit completely to substitute vaping for smoking.
England’s rational solution to smoking
England’s Royal College of Physicians urged doctors last year to “promote the use of e-cigarettes, NRT [nicotine replacement therapy] and other non-tobacco nicotine products as widely as possible as a substitute for smoking in the UK,” because they provide “nicotine without the smoke.” As professor Michael Russell, whose research was the foundation for the 1988 US Surgeon General’s report on nicotine addiction, put it simply, decades ago, “People smoke for nicotine but they die from the tar.”
Just this month, Public Health England issued its long-awaited tobacco control guidelines, based on the latest science and health monitoring data. They recommend: “The best thing a smoker can do for their health is to quit smoking. However, the evidence is increasingly clear that e-cigarettes are significantly less harmful to health than smoking tobacco. The government will seek to support consumers in stopping smoking and adopting the use of less harmful nicotine products.”
However, it also recommended that e-cigarettes not be routinely included in “smokefree policies,” which could have the unintended consequence of making it harder for smokers to quit.
In the United States, FDA regulations are denying smokers the opportunity to use e-cigarettes to quit or to reduce risk. Further complicating matters, leading public health groups including the American Heart Association, the American Lung Association, and the American Cancer Society are actively lobbying against e-cigarettes, supporting adding e-cigarettes to “smokefree” policies and misrepresenting the science about both the safety of e-cigarettes and how they can help cigarette smokers drastically reduce their risk.
In June, San Francisco passed a law which would ban all e-cigarette liquids flavors except those meant to taste like tobacco — despite numerous surveys of former smokers who told researchers that it’s these flavors which helped them make the life-saving switch.
Although anti-e-cigarette activists claim that it will take decades to know definitively whether e-cigarettes are less harmful than smoking, we already know a great deal about why cigarette smoking is so devastatingly dangerous: primarily because of tobacco combustion. There’s a reason that, for decades, cigarettes have had nicknames like “cancer sticks” and “coffin nails.”
We also know a tremendous amount about e-cigarettes, the liquid that goes into them, and what comes out and is inhaled. Are they totally “safe?” No. But there’s no question that they are far less harmful than cigarettes, the most dangerous, irredeemable, widely used consumer product ever invented. And we know that many smokers are using e-cigarettes to quit.
The problem with “deemed” tobacco products
Partisan politics in the US Senate blocked an effort to rein in the FDA’s retroactive de facto ban on e-cigarettes, known as the “deeming” regulation. The Tobacco Control Act of 2009 gave the FDA direct authority to regulate cigarettes, but other products, such as e-cigarettes, would have to be “deemed” tobacco products before the agency could extend its regulatory reach over them.
The blocked legislative fix, as outlined in the bipartisan Cole-Bishop rider to the budget bill in May, was a modest but urgent effort to fix part of the Obama administration’s e-cigarette ban. The amendment would have restricted the FDA’s “deeming” regulations and its ill-conceived premarket tobacco application process to e-cigarette products sold as of August 8, 2016, while the existing regulations, which are being phased in, cover e-cigarette products introduced since February 15, 2007, or virtually all e-cigarette devices and liquids.
The Cole-Bishop amendment was approved by the House Agriculture Appropriations Committee and was on its way to becoming law via the budget bill. However, Senate Democrats considered it a poison pill and threatened a government shutdown if it and a range of other minor legislative riders were included in the legislation.
The same day the budget was unveiled, the FDA announced an extension to deadlines related to the deeming regulations. In a web statement to stakeholders, the agency said the extensions “will allow new leadership at the FDA and the Department of Health and Human Services additional time to more fully consider issues raised by the final rule that are now the subject of multiple lawsuits in federal court.”
This announcement implies that the new leadership at the FDA and its parent agency, the Department of Health and Human Services, are having second thoughts about the prospects of defending the flawed regulatory process that led to a retroactive and innovation-stifling regulation that would decimate an entire class of life-saving products.
The Trump administration will now have an opportunity to use the deadline extension to take action within the confines of its legal discretion.
Nullifying the e-cig ban
There’s one approach that could reverse the Obama-era regulation without ponderous rulemaking or the uncertain legislative process: The administration could effectively nullify the deeming regulation. A new administration cannot simply change rules it doesn’t like. It can, however, evaluate the current status and merits of a growing number of legal challenges that assert the agency failed to follow the proper rulemaking procedures and then instruct the FDA and the Department of Justice to stop defending the rule because of the serious and irrevocable harm the rule is causing to public health.
Just as the Obama administration’s Justice Department decided not to defend duly passed legislation that it determined was not legally defensible (the Defense of Marriage Act, for example), the Trump administration has the discretion not to defend a rule that it believes was created with procedural failures.
It appears that the new head of the FDA, Scott Gottlieb, will agree with our formulation. In his Senate confirmation hearing, he alluded to this, perhaps prophetically, in response to questions about how to balance the benefit of e-cigarettes against any risk. “I think a properly constructed and overseen regulatory process should have the capacity under the authorities Congress gave the agency to make these determinations,” he said (emphasis added).
The Obama FDA’s process was both improperly constructed and lacked effective oversight. Nullifying the rule by declining to defend the process by which it was created would also give Congress time to rethink the underlying 2009 Tobacco Control Act, which did not even contemplate e-cigarettes (which were then in an early stage of development).
Gottlieb also stated, “We need to make sure we’re getting the most bang for our regulatory buck. That means being cognizant of risks and being sure that we’re not adding to consumer costs without improving consumer safety.” Spending time and effort on defending the indefensible is hardly a good investment of the FDA’s resources. But most important of all, nullifying the FDA’s vaping ban would save the lives of smokers who would like to quit cigarettes, today and in the future.
Editor’s note: This is an updated and revised version of a piece published at the National Review.
For more analysis on vaping bans, watch this Learn Liberty video:
Comments Off on Highlights from our Reddit AMA with Professor Michael Munger
Last week, Professor Michael Munger joined us on Reddit for an “Ask Me Anything” conversation as part of the Learn Liberty Reddit AMA Series.
Dr. Munger is an esteemed Professor of Political Science, Economics, and Public Policy at Duke University. He has authored/co-authored 7 books and over 200 scholarly articles. A long-time friend of the Learn Liberty project, he frequently contributes to our blog, and has starred in nine Learn Liberty videos.
Check out some highlights from the AMA below.
I think we have become more not less tribal. The Downsian conception of parties is as an information shortcut: people “choose” the party that on average is closer to most of their policy positions. But we seem now to have gone the other way: party allegiance is stronger, and prior. And THEN I infer my policy positions from my tribal allegiance. It really does suggest some problems for traditional rational choice theory. But that’s why Public Choice, and the work Bryan Caplan (for example) is so useful: we should expect that people are stupid about politics. But they aren’t stupid because they are stupid; they are stupid because they are smart!