Hunter's Point: Public Choice and Stop and Frisk

Isaiah Hunter* 

One of the perplexing issues of solving communal problems is that of the separation of the costs and benefits. Ideally, the costs fall on those who benefit. This is prudent because it will allow the beneficiaries to determine if the benefit justifies the cost. Also, this intuitively seems fair from a distributive perspective. For an example of the opposite of this approach, look no further than a major issue in the mayoral election in NYC – stop and frisk.

stop and frisk.jpg

A major plank of Democratic mayoral candidate Bill de Blasio’s campaign is curtailing stop and frisk: the police procedure of randomly stopping individuals and searching them for contraband. This practice has been heavily criticized for targeting poor minorities. In fact, the Southern District Court of New York recently ruled the NYPD practice unconstitutional. The case is currently on appeal to the 2nd Circuit.

Bill de Blasio’s opponent, Republican candidate Joe Lhota, claims that a repeal of stop and frisk will revert NYC to times where violent crime was rampant. The Wall Street Journal on Oct. 22, 2013 cited a poll that New Yorkers agree with Lhota on this issue – they would rather keep stop and frisk if the alternative meant higher crime rates.

Here is the example of a bifurcation of costs and benefits. The stop and frisk program falls primarily on a small group whereas the benefits of lower crime fall on a larger group. Because the larger group does not bear the cost of stop and frisk, they are unwilling to eliminate the program because it might bring them benefits. Indeed, they need not be sure whether it is a driver of lower crime. If it isn’t, the cost is borne by another. If it is, they benefit. Note that because the benefits and costs are bifurcated we are not sure the outcome is efficient – i.e. the costs justify the benefits. In fact, it is likely to be inefficient because the party benefiting is in this case the politically powerful party. Moreover, it seemingly violates notions of distributional fairness.

This problem is termed the tyranny of the majority. It was something Madison worried about, spelled out in the famous Federalist #10. The sister to this issue is where the benefits of a policy are concentrated whereas the costs are diffuse. The political valence is much higher for the benefiting party than for the losing party. Therefore, once more because of the bifurcation of costs/benefits the outcome is likely to be inefficient and unfair.

This analysis is nothing new to students of public choice theory. However, the stop and frisk example is important because it is non-pecuniary in nature. It is important to understand that public choice is not merely applicable to so-called economic rights, but also to civil rights. The public choice issue is an intractable issue for government intervention in any substantive field and should trouble the progressive or libertarian alike.

*Isaiah Hunter is a J.D. Candidate at New York University School of Law, class of 2014, Senior Articles Editor of the Journal of Law & Liberty and author of the column "Hunter's Point." 

Hunter's Point: An Overlooked Benefit of the Debt Limit

Isaiah Hunter* 

The debt limit is a universally maligned policy that artificially creates funding crisis. Instead of allowing markets to restrain government borrowing by charging higher interest rates, the debt limit restricts the principal government can borrow. This creates occasional shutdowns, including the current shut down. There is one overlooked positive aspect of the debt limit: it constrains the dead hand control of prior Congresses on new Congresses. This is demonstrated by the current impasse.

President Obama argues that Congress’ job is to fund programs it enacted, including Obamacare. Implied in this argument is that if Congress agreed to create a program and appropriated funds for that program, then it is a duty for a new Congress to secure the funds even if they need to raise the debt limit. However, Obama obfuscates the issue by equivocating on Congress. The Congress that passed Obamacare is not the Congress attempting to defund Obamacare. Therefore, under Obama’s logic prior Congress’ funding plans (but not laws) obligate future Congresses to raise the debt limit to pay for prior Congresses promises. Obama’s failure to differentiate between the two Congresses embraces a weak ethos of: one vote, one person, one time. This is because institutionally old Congresses already exhibit substantial sway over current congresses.

The way Congressional default rules are set up and because of public choice, it is very difficult to invalidate laws once enacted – even if the law is bad policy. The debt limit provides a procedural mechanism whereby the current Congress can regain some of its authority against the older Congresses. This is good because while we want stability, older in time does not necessarily mean superior in wisdom nor should it mean in the policy context as first in right.

Now, the debt limit is per se a dead hand control. Moreover, it is a blunt tool for dealing with a problem that requires precision. Finally, Congress rarely uses this tool. Therefore, I do not support the debt limit even without considering the pecuniary costs associated with the debt limit policy. Nevertheless, there is a benefit to the debt limit. That anti-dead hand benefit frames the issues surrounding the debt limit. Namely, just because one Congress enacted a law does not – contrary to President Obama’s claim – obligate morally or legally a future Congress to fund that law. Further, the anti-dead hand benefit should serve as a normative goal: how can new Congresses assert their policies goals while still maintaining some degree of settled expectations.


*Isaiah Hunter is a J.D. Candidate at New York University School of Law, class of 2014, and is Senior Articles Editor of the Journal of Law & Liberty. Mr. Hunter is the author of the Column "Hunter's Point."