New York City: Trading One Meddlesome Mayor for Another

Anyone really surprised to read this?

After his mayoral campaign sent vague signals yesterday about whether he would maintain Mayor Michael Bloomberg’s legal effort to restrict soda cup sizes at restaurants, Bill de Blasio vowed to do precisely that this afternoon.

“I think the mayor is right and I would continue the legal process. We have to, of course, look at the specifics with our own lawyers to handle the mechanics, but there’s no question I want to see this rule go through,” the front-running candidate told reporters at a rally with Chinese-American supporters.

Yesterday, Mr. de Blasio’s spokesman, Dan Levitan, told The New York Times the candidate would “review the status of the city’s litigation” if elected.

Mr. Bloomberg’s proposed ban on sugary drinks larger than 16 ounces was struck down by a lower court earlier this year, following an intense lobbying effort from the soda industry, small business owners and some elected officials. The Bloomberg administration, however, appealed the decision to the state’s highest court, which agreed to hear the appeal yesterday.

To be sure, there are people in New York who deserve to be the beneficiaries of exactly this kind of "leadership"; as Mencken famously said, "[d]emocracy is the theory that the common people know what they want, and deserve to get it good and hard." But there are also plenty of people in New York--and other places as well!--who deserve better than this. And they'd get better than this if the allegedly great and powerful ever learned to mind their own business and to devote their alleged greatness and power to solving actual problems of actual consequence that are within their wheelhouses instead of trying to mollycoddle the rest of the planet.

I trust the people of New York to look after their own waistlines. Bill de Blasio--who aspires to be their mayor--does not. I don't see how any New Yorker with any semblance of self-respect looks to the like of de Blasio and says "ah, yes; that's the person I want leading my city."

The New Nobility?

I am pretty sure that I don't agree with Glenn Reynolds's theory that allowing special privileges for government officials may serve to violate Art. I, Sec. 9 of the Constitution. I do believe, however, that allowing government officials to have special privileges to begin with is fundamentally offensive on a number of levels. And hey, if the advocates of a "living, breathing Constitution" are forced to have their interpretive principles used to curb the growth of government--and the power of governmental bureaucrats as well--I guess I might be able to learn to live with that outcome.

The Latest in Government Overreach (Wartime Suspension of Limitations Act Edition)

Your federal government--and mine--has found a new way to prevent the statute of limitations from running regarding claims that the government has been defrauded. It now employs the Wartime Suspension of Limitations Act to claim that since the United States is at war in Iraq and Afghanistan, the government can take longer to get around to prosecuting cases in which fraud against the government has been alleged. As Walter Olson notes, alleged misconduct need not have anything whatsoever to do with any war, and although the WSLA is part of the federal criminal code, it carries over to civil claims as well, where the standard of proof is lower than it is for criminal cases. Quoth Olson:

Reliance on WLSA [sic] is surging. Last December, the federal government filed a slew of mortgage-meltdown claims against Wells Fargo that would otherwise have been time-barred, citing the Afghan war as reason to ignore the statute of limitations. Twelve times the government invoked WSLA from 2009 to 2012, as many times as it has relied on the statute in the preceding 47 years.

Nervous business lawyers are wondering who is next and when, if at all, they can safely advise clients that a potential dispute is too old to worry about. If truth is the first casualty of war, perhaps the fairness of dispute resolution is the next.

It should go without saying that Congress ought to repeal the WSLA. It should also go without saying that it won't bother to.

Quote of the Day

. . . The President’s view is not necessarily statist in the sense that everything must come from government. He holds the fairly standard view that markets should be robust, but that market failures and other societal needs require government action. His views about the size of government are of course more expansive than that of most readers of this blog, but they are not out of the mainstream: they summarize the standard progressive position.

Yet it is not this antinomy between large versus small government that I want to discuss here. It is, rather, the President’s concept of legitimacy of government action. His view is disarmingly simple: the government is us. The government is not morally separate from us. We are part of it; indeed, that is the centerpiece of the “brave and creative and unique experiment in self-rule” that the President evokes. This view seems to suggest that when the government acts, it’s we who act. So if (say) the government snoops on journalists, then it is us who are snooping on journalists. This is because government and people are one undifferentiated entity. In our democracy, the government can never be tyrannical by definition, because whatever harm the government may inflict, it is self-inflicted. The people has harmed itself, and, of course, volenti non fit injuria (to the willing no injustice is done.) So when you lash out against government you are not lashing out against some sinister entity that is alien to you, but at an institution of which you are an integral part. Such view owes much to Rousseau and his concept of the collective will. Immanuel Kant flirts with this idea as well (see the Doctrine of Right on legislation, and his claim that the concept of revolution is an oxymoron). It is also reminiscent of some of Hegel’s organic conceptions of the state.

The idea, however, does not stand scrutiny. The government is an agent that we hire to do a certain job. The government is not us. It is contractually related to us. It has a fiduciary duty toward us, the duty to provide the services for which it was hired. This does not prejudge the question of how large that mandate should be. As any economist knows, fiduciary relationships often generate agency costs. The government sometimes acts ultra vires, it oversteps its powers, it spins out of control. When that happens, the position that the government is separate from us, that it has turned against us, is perfectly intelligible and justified. With the possible exception of Rousseau, the view that democratic procedures are sufficient warrant for government action is not supported by any credible philosophical view.

Let me put the matter a different way. In a well-functioning democracy, a government is composed of officials who play certain roles defined by laws, by rules. When officials perform coercive acts unauthorized by those rules, they violate the rights of the subjects. Those acts are impermissible acts of coercion. If this is correct, then the insistence that our “unique experiment in self-rule” somehow preempts us from warning about the dangers of government must be rejected. With the exception of anarchists, few people take the view that government is a “separate, sinister entity.” What libertarians and others do is to warn against the excesses of government, its threats to our liberties, its inefficiencies. Above all (and this is something the President overlooks), critics of government, armed with the tools of public choice, point out that the bigger government becomes, the greater is the threat it poses, the larger is the probability that it will malfunction and exceed its rightful function.

--Fernando Teson. (Emphasis in the original.)

Jonathan Turley Sees the Light?

It is nice to see that Jonathan Turley is expressing concerns that our national government may be too big, too unwieldy, and too chaotic. Dare we hope that his commentary seeps into the national consciousness, thus causing us to look to states, localities and the private sector for more solutions to our national problems?

I presume that the above will cause some to tell me that I hate government. Not so. But I am definitely not a fan of big, unwieldy and chaotic government, and as Turley makes clear, that's what we have right now. Liberals believe (in good faith, of course) that government can be--and is--a force for good more often than not. That belief is being seriously undermined by the type of national government we have, and if liberals want to be honest with themselves, they will re-examine their assumptions.