by | ARTICLES, SCOTUS
Gorsuch does a good job pointing out some of the logical flaws in Justice Sotomayor’s dissent in the Colorado website cake. The WSJ’s Notable and Quotable gives a fine excerpt, which I have included below, plus a link to the full opinion.
“From Justice Neil Gorsuch’s majority opinion in 303 Creative v. Elenis, decided June 30:
It is difficult to read the dissent [by Justice Sonia Sotomayor] and conclude we are looking at the same case. . . . The dissent claims that Colorado wishes to regulate Ms. Smith’s “conduct,” not her speech. Forget Colorado’s stipulation that Ms. Smith’s activities are “expressive,” and the Tenth Circuit’s conclusion that the State seeks to compel “pure speech.” The dissent chides us for deciding a pre-enforcement challenge. But it ignores the Tenth Circuit’s finding that Ms. Smith faces a credible threat of sanctions unless she conforms her views to the State’s. The dissent suggests (over and over again) that any burden on speech here is “incidental.” All despite the Tenth Circuit’s finding that Colorado intends to force Ms. Smith to convey a message she does not believe with the “very purpose” of “[e]liminating . . . ideas.” . . .
In some places, the dissent gets so turned around about the facts that it opens fire on its own position. For instance: While stressing that a Colorado company cannot refuse “the full and equal enjoyment of [its] services” based on a customer’s protected status, the dissent assures us that a company selling creative services “to the public” does have a right “to decide what messages to include or not to include.” But if that is true, what are we even debating?”
by | ARTICLES, SCOTUS
The Wall Street Journal published their “Notable & Quotable: “Thomas vs. Jackson” on July 1, 2023. Clarence Thomas takes apart fellow Justice Ketanji Brown Jackson, observing that her “contrary, myopic world view based on individuals’ skin color to the total exclusion of their personal choices is nothing short of racial determinism.” It’s brilliant. You can read it in full below:
“From Justice Clarence Thomas’s concurring opinion in Students for Fair Admissions v. Harvard, decided June 29 (citations omitted):
Justice [Ketanji Brown] Jackson uses her broad observations about statistical relationships between race and select measures of health, wealth, and well-being to label all blacks as victims. Her desire to do so is unfathomable to me. I cannot deny the great accomplishments of black Americans, including those who succeeded despite long odds.
Nor do Justice Jackson’s statistics . . . prove anything. Of course, none of those statistics are capable of drawing a direct causal link between race—rather than socioeconomic status or any other factor—and individual outcomes. So Justice Jackson supplies the link herself: the legacy of slavery and the nature of inherited wealth. This, she claims, locks blacks into a seemingly perpetual inferior caste. Such a view is irrational; it is an insult to individual achievement and cancerous to young minds seeking to push through barriers, rather than consign themselves to permanent victimhood. . . .
Individuals are the sum of their unique experiences, challenges, and accomplishments. What matters is not the barriers they face, but how they choose to confront them. And their race is not to blame for everything—good or bad—that happens in their lives. A contrary, myopic world view based on individuals’ skin color to the total exclusion of their personal choices is nothing short of racial determinism.
Justice Jackson then builds from her faulty premise to call for action, arguing that courts should defer to “experts” and allow institutions to discriminate on the basis of race. Make no mistake: Her dissent is not a vanguard of the innocent and helpless. It is instead a call to empower privileged elites, who will “tell us [what] is required to level the playing field” among castes and classifications that they alone can divine. Then, after siloing us all into racial castes and pitting those castes against each other, the dissent somehow believes that we will be able—at some undefined point—to “march forward together” into some utopian vision. Social movements that invoke these sorts of rallying cries, historically, have ended disastrously.
by | ARTICLES, CONSTITUTION, EDUCATION, FREEDOM, GOVERNMENT, SCOTUS
There is nothing in our Constitution about the “separation of church and state.” This phrase is often wrongly used as shorthand for the Establishment clause found in the first amendment, which states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” What that plainly states is that the government will not prefer or establish one religion over another or restrict the practice of religion. Many people who use the phrase “separation of church and state” interpret it to mean the opposite, that the Constitution requires a separation of church and state. But that is simply untrue.
Thus, if the government gives money to a group, such as private schools, it cannot discriminate against a particular school just because it is religious. The recent SCOTUS decision in Espinoza v Montana case is a clear confirmation of that important understanding.
by | ARTICLES, BLOG, CONSTITUTION, ECONOMY, FREEDOM, GOVERNMENT, SCOTUS, TAXES
This week, the Supreme Court ruled in favor of taxation for businesses that lack a physical nexus. Justices Clarence Thomas, Ruth Bader Ginsburg, Samuel A. Alito Jr. and Neil M. Gorsuch, writing for the majority opinion, believed that the emergence of the internet as a mainstream medium for interstate commerce caused the physical presence rule to become further removed from economic reality and resulted in significant revenue losses to states.
The revenue loss argument is nonsense; it is a back-door way for states to add additional levies on their citizens under the guise of leveling the playing field . For years now, we’ve been hearing the protestations that there is dearth of tax revenue from which states are suffering terribly.
But this is simply and patently untrue. State legislatures have always set their tax rates with the full understanding that they would not actually collect that supposed billions of internet “slippage”. It’s not like there is a line item in state budgets that lists “uncollected online tax” or “tax cheats” with a number attached. Sales tax is merely one of many levies whose revenues positively fund government spending. This online tax will now just be yet another tax (and therefore revenue) for the coffers. Higher marginal rates exists because state-government spending levels are higher — not because of some “absence of tax” nonsense that forces states to raise rates.
In our states’ budgets, current taxes rates (income + sales, if applicable) are set at levels appropriate to cover the calculations of state spending. 49 out of 50 states require a balanced budget. These states are fully aware that taxes are “avoided” (internet and out-of-state) and therefore don’t even count them in their budget calculations. So there is no concrete “absence of revenue”. Instead, by passing this new internet tax, states are now given free reign to add a tax without taking the political heat for it, under the guise of “fairness”.
Looked at it another way, it is unconscionable for this ruling to stand without Congressional action that requires states to lower their marginal rates so that the new tax makes everything revenue neutral. Higher marginal rates as they are already burden taxpayers. This internet tax doesn’t fix anything — because there is nothing in their budgets to be “fixed”. True tax reform (a true “fix”) always means broadening the base and thereby reducing the overall burden of taxes. Instead of that, what we have with ruling will be a revenue grab.
Another fallacy for supporters is that including the internet tax in transactions is simply a matter of adding a quick, little tax line where there was none before. But it is highly irrational for legislators to believe that compliance with multiple tax jurisdictions for vendors will be an easy and unburdensome process. The recordkeeping will be excruciating. From an accountant’s perspective, here’s how:
The effect of distressing our businesses to comply with this online tax collection will be a drag on the economy. Can you imagine vendors needing to figure such things as whether marshmallows are a taxable food/candy in some jurisdictions while it might be a non-taxable food in others? To think that software can seamlessly make this distinction is ludicrous (especially software run by the government.) When has the government ever actually streamlined anything?
Internet tax collection for 10,000 local tax jurisdictions or even just 50 states is too much. If such a tax is to be implemented, it should be either a tax in which every state accepts one set of rules OR a tax payable to the state-of-sale only — which would ultimately be better for tax competition overall. Without a fix, compliance will certainly be massive and burdensome — which will hurt this economy that is slowing but surely recovering from the last ten years.
Arthur Laffer observed that “the principle of levying the lowest possible tax rate on the broadest possible tax base is the way to improve the incentives to work, save and produce which are necessary to reinvigorate the American economy and cope with the nation’s fiscal problems”. But a hodge-podge “internet tax” doesn’t do that. Without a solid Congressional solution for correctly calculating and remitting sales tax in 10,000+ jurisdictions, we will have a nightmare for accountants and businesses — at the cost of grabbing another revenue stream for our bloated, overspending government.
