Archive for May, 2010
Proclamation of ‘World Trade Week’ Tops President’s Trade Policy Achievement List
Dear President Obama:
Just when I was ready to concede that U.S. trade policy is hopelessly adrift in a sea of incoherence, bouncing around randomly in the swirling cross currents of laughably dissonant policy objectives, while U.S. businesses and workers suffer the consequences of Washington’s unfettered allegiance to anachronistic and ruinous trade policy group think, you’ve given me pause by taking the decisive step, on Friday, to decree World Trade Week. You wrote:
I, Barack Obama, President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do herby proclaim May 16 through May 22, 2010, as World Trade Week. I encourage all Americans to observe this week with events, trade shows, and educational programs that celebrate the benefits of trade to our Nation, American workers, and the Global economy.
Mr. President, I applaud your efforts and recognize that decision must not have come easily. There were probably late-night discussions with your staff, contemplative 2am walks through the Rose Garden, and perhaps some sleepless nights. To even imply that trade may be beneficial to Americans—this close to November, no less—was an act of profound political courage.
Well, Mr. President, thank you for the encouragement. I will do my part to fulfill your vision of World Trade Week, which is actually something my colleagues and I have been doing for many years—often with citation to the data collected and published by your numerous administrative departments and agencies. I guess one might say that World Trade Week is a 24/7 proposition over here at the Cato Institute’s Center for Trade Policy Studies.
So, rather than reinvent the wheel and since we specialize in “increasing public awareness about the benefits of free trade and the costs of protectionism,” perhaps you can ask the White House webmaster to post a link to our educational materials about trade, including these recommendations for policymakers, on www.whitehouse.gov.
If you’re as committed as we are, Mr. President, to correcting the long-festering myths about trade and helping Americans discern the truth from the heaps of misleading rhetoric and lies they hear so frequently (here’s a blueprint for that course), we just might be able to right the trade policy ship.
Sincerely,
Dan Ikenson
Supreme Court Further Reduces Constitutional Limits on Federal Power
As Roger has just blogged, the Supreme Court in today’s Comstock decision has ”turned an instrumental power, dependent on Congress’s other powers, into an independent power.” That is, Justice Breyer’s decision has imbued the Necessary and Proper Clause — which merely gives Congress the power to enact laws that are “necessary and proper” for “carrying into execution” one of the powers enumerated in Article I, section 8 — with independent authority to justify federal power. Thus, in effect, Congress has the power to do anything it deems “necessary and proper” (or, indeed “convenient or useful”), quite apart from whether that thing relates to an enumerated power or not. I explained here why this view — and Breyer’s elaboration on it during oral argument — is wrong.
Without exaggeration, the Comstock decision is one of the most harmful Supreme Court decisions in recent memory. If there is anything worse than the Court’s radical expansion of the Necessary and Proper Clause, it is that seven justices signed onto this sweeping pronouncement. While it isn’t surprising that Justice Breyer, joined by his “progressive” colleagues, would have such an expansive view of federal power, it is disconcerting that Chief Justice Roberts joined the majority opinion in its entirety. And while Justice Kennedy separately counsels that “the Constitution does require the invalidation of congressional attempts to extend federal power in some instances,” it’s hard to see what those instances are in the wake of Comstock. Justice Alito also has some qualms about the reach of the Necessary and Proper Clause but unfortunately is left satisfied that here “there is a substantial link to Congress’ constitutional powers” (adding yet another exception that swallows the constitutional rule on limited congressional power).
Only Justice Thomas, whose magisterial dissent is joined by Justice Scalia, sees today’s decision for what it is, the transformation of the Necessary and Proper Clause into a sort of federal police power, the existence of which the Court has long denied. As Thomas says, ”the Constitution does not vest in Congress the authority to protect society from every bad act that might befall it.” (This is of course counter not only the Court majority but also the immortal words of President George W. Bush that “when somebody hurts, government has got to move.”)
About the only good thing about this opinion is that it declined to expand Congress’s power under the Commerce Clause – an alternative justification for the law at issue that the government offered unsuccessfully in the court below and which Solicitor General Elena Kagan abandoned before the Supreme Court.
For more coverage of Comstock, see Josh Blackman’s series of posts and Randy Barnett at the Volokh Conspiracy. Also, here is Cato’s brief on the case (which I summarize here) and my description of Kagan’s response to some of the points we raised.
Lessons From Venezuela’s 21st Century Socialism
The accomplishments of Venezuela’s “Socialism of the 21st Century” are looking very much like those of old-fashioned socialism with basic goods shortages, high inflation, negative growth, blackouts, water rationing, the persecution of Hugo Chávez’s critics, plus skyrocketing crime.
Now Chávez is accusing his enemies of sabotaging his TV and Radio program, “Alo Presidente” because it suffers from continuous technical problems on the air, including sound interruptions and the loss of the satellite signal.
An upset Chávez observes: ”The problems are very frequent here, almost every day. I don’t understand how you have so much equipment, so much technology…. By contrast, you see the private channels and that doesn’t happen…. And for me it’s almost every day that there is a problem here and there.”
Chávez’s 21st century solution? He has ordered his military intelligence to investigate.
U.S. v. Comstock Is About Policy Over Law
In his opinion today in United States v. Comstock, Justice Breyer gives us a textbook example of how the Supreme Court, over the years, has converted the Constitution into modern “constitutional law,” which is connected to the Constitution only occasionally. This is policy trumping law, pure and simple.
The question before the Court was whether Congress had the power, under the Constitution, to commit mentally ill, sexually dangerous prisoners beyond the date they would otherwise be released. The problem, as Breyer grants, is that Congress has only certain enumerated powers, and the only power it has to criminalize conduct, beyond the three crimes mentioned in the Constitution, is pursuant to one of those enumerated powers — in particular, through the last of its 18 enumerated powers, its power to enact laws that are “necessary and proper” for “carrying into execution” one of the previous 17 enumerated powers or ends. In other words, Congress can criminalize conduct only if doing so is necessary and proper for carrying out one of its other constitutionally authorized powers.
Under its power to regulate interstate commerce, however, Congress has criminalized all manner of conduct not remotely related to insuring a free national market, the main function of the commerce power. The conduct criminalized here is the possession of child pornography. That’s a responsibility that belongs to the states, under state police power, not to the federal government. And that’s where today’s problem began.
But Breyer has compounded it by holding that even though the Constitution nowhere grants Congress the power to criminalize the conduct in question, Congress can invoke its instrumental power under the Necessary and Proper Clause to commit these prisoners beyond the date they would otherwise be released. In other words, he has turned an instrumental power, dependent on Congress’s other powers, into an independent power. That’s how government expands beyond the limits imposed by the Constitution.
Is D.C. Paris?
The Washington Post reports that the D.C. Council is getting yet more “progressive,” especially on “quality of life” issues.
“People are looking for a fresh approach and a progressive approach,” said [Council member Tommy] Wells, who said he travels to Europe each spring in search of initiatives to replicate at home.
Apparently Europeans recommend bike lanes, bag taxes, and organic foods, but not lower taxes, better schools, and less crime.
Pelosi: ObamaCare Helps Artists Avoid Hassle of Working
ObamaCare creates incentives not to climb the economic ladder. It also creates incentives not to work at all; able-bodied people can quit their jobs, safe in the knowledge that the suckers working man will foot the bill for any health care they may need. House Speaker Nancy Pelosi thinks that’s a not a bug, but a feature of the new law, at least if those able-bodied non-paycheck earners are artists. (HT: CNS News.)
Repeal the bill.
With Liberal Editorial Pages Like These…
…who needs conservative editorial pages?
It’s rather sad that the nation’s leading liberal editorial page dedicates an editorial to Defense Secretary Robert Gates’ milquetoast call for less-huge defense spending, but can only muster dissembling and throat-clearing.
The Times mentions the “feeding frenzy at the Pentagon budget trough” since 9/11. It notes that defense spending has roughly doubled in the last decade. It admits that the recent QDR “failed to start making the hard choices” about defense spending.
But there’s almost nothing of substance in the Times editorial about what the United States should be doing to its military budget. Nonsensically, it argues that as the U.S. gets out of Iraq and Afghanistan, “Washington will have to consider trimming troop strength, beginning with the Navy and the Air Force.” But why wait? The Navy and Air Force have played almost no role in the wars in those two countries. If the Navy and Air Force should be undergoing personnel cuts, Iraq and Afghanistan provide no reason to hold off, and arguably provide reason to hurry up in order to free up scarce resources in order to “win the wars we’re in,” as Gates is fond of saying.
Conservative editorial pages bang away on their war/military spending/nationalism drum all the time, helping to embed militarism in conservative identity. Liberals need cues here, too: is it okay for liberals to be advocating cuts in defense spending? Not only is it okay, but should they do so? The Times had an opportunity to give its views on these questions in this editorial, and it shrugged.
President Just Can’t Leave Them Kids Alone
Remember back in September, the huge hullabaloo over President Obama’s planned address to America’s students to start the new school year? Remember how concerned many people were that the speech would be heavily politicized, and perhaps even designed to “indoctrinate” kids about the President’s views on such controversial issues as health-care reform? You probably don’t remember because the media buried it and the speech ended up being fairly innocuous, but do you recall that the uproar was largely a result of U.S. Department of Education lesson plans that advised teachers to have kids talk about how they could help President Obama, and a cover letter from Education Secretary Arne Duncan that noted that schools are engines of “social progress“? Well it turns out that alarmed parents and taxpayers might have had very good reason to be concerned: In the pages of the most recent Parade magazine, the President furnishes just the sort of politics and social-change laden message to students that lots of parents and taxpayers feared.
The President begins his Parade address by expressing his regret that he “couldn’t be at every high school and college commencement this year.” This might seem uncontroversial, but it actually raises one of the most fundamental problems with any president forcing himself into a child’s schooling: Under the Constitution, the federal government has no authority to interfere in education. With this president especially, though, it appears that among the ever-growing titles accompanying the presidency is now Principal-in-Chief. But that is most definitely not a legitimate presidential title, and at the very least taking it ensures that education — even if unintended — will constantly be wrapped up in White House level politics. So when kids should be sitting in their classes learning, they’ll be increasingly swept up in national political storms, just as happened last September.
Unfortunately, with President Obama’s address in Parade, we see exactly why people of all political stripes should demand that the president stay out of their kids’ classrooms: the president very well might push political and social ideas on their kids that they find unacceptable. In the case of President Obama, he has chosen to push his not-so-subtle campaign against Americans who dare to to earn profits — charlatans who try to produce things that others want and need, and earn a living through voluntary exchange – and to continue to elevate to sainthood those who work for nonprofits and, of course, government. Oh, and he throws a bit of alternative-energy environmentalism in there, too:
Of course, each of you has the right to take your diploma and seek the quickest path to the biggest paycheck or the highest title possible. But remember: You can choose to broaden your concerns to include your fellow citizens and country instead. By tying your ambitions to America’s, you’ll hitch your wagon to a cause larger than yourself. You can choose a career in public service or the nonprofit sector, or teach in an underserved school. If you have medical training, you can work in an understaffed clinic. Love science? You can discover new sources of clean energy or launch a business that makes the most efficient and affordable solar panels or wind turbines.
That their kids would be subjected to this sort of politicized, collectivist rhetoric from the president is exactly what numerous parents — many of whom pursue the filthy paychecks that come with manufacturing computers, building houses, keeping a company’s books, editing magazines, and myriad other things that make all Americans’ lives richer – feared in September. And it might very well be what they would have gotten had there not been a public furor well before Obama’s speech was delivered.
Perhaps, though, we owe the President a debt of gratitude for his insatiable desire to interject himself into our children’s education. Thanks to both the uproar created by his September address, and the objectionable content of his Parade message, the President has provided two terrific illustrations of why the federal government should get out of education. He has also illustrated why overall we need to take education away from politicians and let parents freely choose among private educational options. In short, he has unwittingly cast a bright light on a huge reason we need full educational freedom: Without it, our children will at best be embroiled in repeated political conflict, and at worst truly face political indoctrination.
Internet Regulation: How About This Ad Hominem?
The New York Times starts its commentary on proposed Internet regulations with a clever ad hominem argument: “The Republican attack on the Federal Communications Commission’s proposal to classify broadband Internet access as a telecommunications service sounded a lot like the G.O.P. talking points on health care reform.”
The GOP are being like themselves. Accordingly, Times readers should think their viewpoint is yucky. It’s not the most substantive argument you’ll come across today.
There are good reasons not to encumber the Internet with regulations designed for the telephone system. Here are four: The Internet is not like the telephone system, and the FCC doesn’t have the institutional ability to manage a changing, competitive system of networks. Extending “universal service” telephone taxes to the Internet will drive down adoption and frustrate universal service goals. The FCC is subject to capture by the very interests from which the Times thinks regulation would “protect.” The Internet’s large cadre of technologists and active consumers will do a better job than the FCC of protecting consumers’ interests.
But ad hominem is more fun. So let’s ask why the New York Times didn’t disclose that, as a content provider, it has a dog in the fight? Net neutrality regulation would act as a subsidy to content providers like the Times, ultimately paid by consumers as higher prices for Internet access.
The Mote in Paul Krugman’s Eye
Paul Krugman says libertarianism is not a serious political philosophy because politicians are corruptible, do stupid things, et cetera. My colleagues Aaron Powell and David Boaz demonstrate why that’s a bigger problem for Krugman than for libertarians: Krugman’s statism wouldn’t make politicians any less ignorant or corruptible, it would just give those ignorant and corruptible politicians more power.
I made the same point to Krugman during a health care debate. He complained that Republicans complain that government doesn’t work, and then they get elected and prove themselves correct. (It’s a good line, but I think he stole it from P.J. O’Rourke.) I responded, “Unless you have a plan to abolish Republicans, they’re part of your plan. Maybe we can put them in camps?” Krugman seems impervious to the point.
The Roots of the Tea Parties
The sight of middle-class Americans rallying to protest overtaxing, overspending, Wall Street bailouts, and government-directed health care scares the bejeezus out of a lot of people. The elite media are full of stories declaring the Tea Partiers to be racists, John Birchers, Glenn Beck zombies, and God knows what. So it’s a relief to read a sensible discussion (subscription required) by John Judis, the decidedly leftist but serious journalist-historian at the New Republic. Once the managing editor of the journal Socialist Revolution, Judis went on to write a biography of William F. Buckley Jr. and other books, so he knows something about ideological movements in the United States. Judis isn’t happy about the Tea Party movement, but he warns liberals not to dismiss it as fringe, AstroTurf, or a front group for the GOP:
But the Tea Party movement is not inauthentic, and—contrary to the impression its rallies give off—it isn’t a fringe faction either. It is a genuine popular movement, one that has managed to unite a number of ideological strains from U.S. history—some recent, some older. These strains can be described as many things, but they cannot be dismissed as passing phenomena. Much as liberals would like to believe otherwise, there is good reason to think the Tea Party movement could exercise considerable influence over our politics in the coming years.
Judis identifies three strains of American thinking that help to define the Tea Party movement:
The first is an obsession with decline. This idea, which traces back to the outlook of New England Puritans during the seventeenth century, consists of a belief that a golden age occurred some time ago; that we are now in a period of severe social, economic, or moral decay; that evil forces and individuals are the cause of this situation; that the goal of politics is to restore the earlier period; and that the key to doing so is heeding a special text that can serve as a guidebook for the journey backward.
I’ve offered a dissent from the common libertarian perception that we have declined from a golden age of liberty, but declinism is certainly a strong theme in conservative thought. (Not to mention in Club of Rome environmentalist thought.) Judis suggests that declinism often takes conspiratorial form and wonders “how could a movement that cultivates such crazy, conspiratorial views be regarded favorably by as much as 40 percent of the electorate?”
That is where the Tea Party movement’s second link to early U.S. history comes in. The Tea Partiers may share the Puritans’ fear of decline, but it is what they share with Thomas Jefferson that has far broader appeal: a staunch anti-statism.
And the final historical strain that Judis identifies:
They are part of a tradition of producerism that dates to Andrew Jackson. Jacksonian Democrats believed that workers should enjoy the fruits of what they produce and not have to share them with the merchants and bankers who didn’t actually create anything….
During the 1970s, conservatives began invoking producerism to justify their attacks on the welfare state, and it was at the core of the conservative tax revolt….
Like the attack against “big government,” this conservative producerism has most deeply resonated during economic downturns. And the Tea Parties have clearly built their movement around it.Producerism was at the heart of Santelli’s rant against government forcing the responsible middle class to subsidize those who bought homes they couldn’t afford…. Speaking to cheers at the April 15 rally in Washington, Armey denounced the progressive income tax in the same terms. “I can’t steal your money and give it to this guy,” he declared. “Therefore, I shouldn’t use the power of the state to steal your money and give it to this guy.”
Judis could have cited Ayn Rand’s analysis of “producers” and “looters” in influencing this strain of Tea Party thought. Not to mention a much older classical liberal version of class analysis, one that predated Marx’s theory, which focused on “conflict between producers, no matter their station, and the parasitic political classes, both inside and outside the formal state,” or “between the tax-payers and tax-eaters.”
Judis concludes on a note of despair:
their core appeal on government and spending will continue to resonate as long as the economy sputters. None of this is what liberals want to hear, but we might as well face reality: The Tea Party movement—firmly grounded in a number of durable U.S. political traditions and well-positioned for a time of economic uncertainty—could be around for a while.
There’s plenty for libertarians to argue with in Judis’s essay. But it’s an encouraging report for those who think it’s a good thing that millions of Americans are rallying to the cause of smaller government and lower spending. And certainly it’s the smartest, most historically grounded analysis of the Tea Party movement I’ve seen in the mainstream liberal media.
Big Global Warming Case Hinges on Weird Procedural Technicality
Nearly two weeks ago, I blogged about some strange procedural developments in the big global warming case coming out of the Gulf Coast, Comer v. Murphy Oil USA. On the eve of final briefing deadlines before the en banc Fifth Circuit, an eighth judge of that court recused from the case (we don’t know the reason, but the previous seven recusals were presumably due to stock ownership) and so the court was faced with an unprecedented situation: losing an en banc quorum after previously having had enough of one to vacate the panel decision and grant en banc rehearing in the first place. We were all set to file our brief when the Clerk of the Fifth Circuit issued an order notifying the parties of the lost quorum and canceling the scheduled hearing — and nothing more. Out of an abundance of caution, we decided to go ahead with filing late last week.
Again, here’s the situation: Mississippi homeowners sued 34 energy companies and utilities operating in the Gulf Coast for damage sustained to their property during Hurricane Katrina. The homeowners alleged that the defendants had emitted greenhouse gases, which increased the concentration of greenhouse gases in the atmosphere, which contributed to global warming, which accelerated the melting of glaciers, which raised the global sea level, which increased the frequency and severity of hurricanes, which caused the destructive force of Hurricane Katrina. The district court concluded that it lacked the authority to resolve the public debate over global warming and dismissed the case. A Fifth Circuit panel reversed this dismissal, holding that the homeowners have standing to raise some of their claims and that those claims are appropriate for resolution by the federal courts. The Fifth Circuit then granted rehearing en banc.
Cato filed an amicus brief on the energy companies’ behalf, arguing that homeowners lack standing to bring their suit and that the case raises a nonjusticiable political question. Our brief asserts that the homeowners’ claim does not provide a clear causal connection between the harm suffered and any particular conduct by the energy companies, and that the money damages the homeowners requested would not remedy the environmental harm alleged. More importantly, we maintain that political questions such as those surrounding climate change must be resolved by Congress, not the federal courts. Put simply, the Constitution prohibits federal courts from resolving highly technical social and economic policy debates. Permitting plaintiffs to achieve “regulation by litigation” would not only contradict settled Supreme Court precedent, but would betray the separation of powers principles embodied in the Constitution.
The Clerk has since directed the parties to brief the procedural issues surrounding the apparent lost quorum, which letter-briefs came in this week (as a mere amicus, we did not file on this). I’ll spare you the technical details, but there are three possible ways in which the Fifth Circuit could now rule: 1) the court actually does have a quorum and thus oral argument is resecheduled; 2) the panel decision is reinstated (with an ensuing cert petition appealing that decision to the Supreme Court); and 3) the district court is affirmed without opinion (the same result as when an appellate court vote is tied). Stay tuned — this is a truly weird denouement to a hugely important case.
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