Archive for May, 2011
Notice of Court Orders Is Important in Death Penalty Cases
The representation of prisoners accused of capital crimes is unique in its difficulty — and in the consequences — when that representation is inadequate. Maples v. Thomas, which will be argued before the Supreme Court this fall, exposes some of the serious cracks in the system charged with representing indigent defendants in such cases.
Cato takes no position on the merits of the death penalty other than that the Constitution does not prohibit it and that our justice system is responsible for, at the very least, ensuring that prisoners receive fair notice of orders on which their lives depend. Both the courts and counsel failed Cory Maples here.
Maples was convicted of capital murder and sentenced to death for killing two companions. After a series of state court appeals which affirmed his conviction, Maples filed a petition for post-conviction relief, which was ultimately dismissed.
Maples never received notice of this deadline-triggering order because his pro bono lawyers left their big-firm jobs and a court clerk did nothing when the letter containing the order was consequently returned unopened. Because Maples did not receive notice of the deadline, he did not timely file an appeal and his claims were procedurally defaulted. The Eleventh Circuit affirmed the district court’s denial of Maples’s subsequent federal habeas petition because Maples “cannot establish cause for his default because there is no right to post-conviction counsel.”
Cato has now joined The Constitution Project to file an amicus brief supporting Maples and arguing that the Supreme Court should excuse his default because the state failed to notify him of an order that could result in his death. Moreover, if the default is not excused, the state’s inaction will deny Maples his constitutional right of meaningful access to the courts.
The Eleventh Circuit relied on the rule that because “there is no constitutional right to an attorney in state post-conviction proceedings, a petitioner cannot claim constitutionally ineffective counsel in such proceedings.” But Maples’s habeas claim does not involve the ineffectiveness of his post-conviction counsel; his underlying claim is that his trial counsel provided ineffective assistance. Indeed, his post-conviction counsel provided no assistance whatsoever when it was time to appeal.
Finally, there is cause to excuse Maples’s default because this case is ultimately governed by principles of equity and basic fairness. Few if any reasonable observers would conclude that it is fair or equitable to put a man to death without allowing the least consideration of appellate claims that could save his life simply because his lawyers left their jobs, a firm mailroom returned letters to them unopened, and the court clerk’s office did nothing when it discovered that crucial notice was never received.
Again, the case is Maples v. Thomas and you can read Cato’s brief here.
Agriculture Cuts to Usher in the Apocalypse
Harold Camping is “flabbergasted” that the world did not end on May 21st as he had predicted. I think it’s because he didn’t account for the devastation that will be wrought by Republican budget cuts for fiscal 2012, which doesn’t begin until October 1st. Therefore, Camping’s new predication that the world will end on October 21st is much more plausible.
Yesterday the House Appropriations Committee’s subcommittee that deals with agriculture and nutrition programs passed its bill, which will now be considered by the full committee. According to the committee’s numbers, discretionary funding for these programs in 2012 would be $17.2 billion – a $2.7 billion reduction versus 2011.
According to a statement released by the subcommittee’s ranking member, Sam Farr (D-CA), the four horsemen are readying their saddles:
Farmers will be broken. Jobs will be lost. Ag economies will crumple.
Wow, even though “the farm economy [is] booming”? I half expect to see Rep. Farr waving a “The End is Near!” sign from a street corner in early October.
The Associated Press reports that “hunger advocates” are particularly upset by an 11 percent funding reduction for the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC). (“Hunger advocates” is the AP’s bizarre term for advocates of federal welfare programs.) The AP cites an estimate from a group of “hunger advocates” that the cuts could deny benefits to 475,000 people otherwise eligible for WIC.
If you’re looking for Republicans to defend the cuts on the basis that there’s nothing “progressive” about depending on a federal bureaucracy for sustenance then you’re going to be disappointed:
Republicans who wrote the bill said the cuts in domestic food programs are taken from excess dollars in those accounts, and participants won’t see a decrease in services.
Subcommittee chairman Jack Kingston (R-GA) basically says that the cuts are about making the federal government more efficient:
This subcommittee has begun making some of the tough choices necessary to right the ship. We have taken spending to below pre-stimulus, pre-bailout levels while ensuring USDA, FDA, CFTC, and other agencies are provided the necessary resources to fulfill their duties. Our members have worked to root out waste and duplication and, where they have strayed from their core mission, we rein in agencies so they may better focus on the responsibilities for which they are intended. In doing so, we balance the urgent need for fiscal restraint with the necessity to provide an abundant food supply, robust trade, prudent conservation measures, and strong rural communities.
Sorry, congressman, but if the media is going to uncritically report the “women and children will suffer” argument, the “root out waste and duplication” counter-argument isn’t going to win the heart of the average American who probably thinks WIC is something that comes out of a candle.
For all the angst over cuts to discretionary spending, I don’t see much discussion over the fact that, according to Republicans, mandatory spending for agriculture and nutrition programs will increase by $3 billion – from $105 to $108 billion. Spending on food stamps, which unlike WIC, is basically on auto-pilot, would increase by almost $6 billion. I’m guessing that the “hunger advocates” didn’t plug that number into their equation.
I’ll end on a positive note by pointing out that Cato’s Downsizing the Federal Government website has essays on why it would be truly “progressive” to eliminate farm subsidies, rural subsidies, food subsidies, and other federal welfare programs.
Antidumping and Bedroom Furniture from China: The Real Story
The Washington Post ran a story in yesterday’s print edition about the U.S. antidumping order against Wooden Bedroom Furniture from China—a case I described seven years ago as the “Poster Child for [Antidumping] Reform” because its sordid details explode the myths upon which rest the rationalizations for the law’s existence.
Those details are nowhere to be found in the WP article, which was published, presumably, to make a few other points. One such point—the only one with which I agree—is that antidumping duties aren’t very effective at restoring or preserving U.S. jobs. As the article demonstrates, since the imposition of AD duties on Chinese furniture beginning in 2005, imports from Vietnam, Indonesia, and other countries not subject to the AD restrictions have emerged to fill the vacuum created by declining imports from China. Not much news in that, though. This kind of trade diversion is a typical consequence of antidumping restrictions. Likewise, furniture production and the jobs it used to support has not undergone a renaissance in the United States – despite that being the rallying cry of the domestic producers who brought the case in 2004. (More on that in a moment.)
But the article—beginning with its title (“Chinese Make a Run Around U.S. Tariffs”)—leads readers to the faulty conclusion that those cunning Chinese are at it again, looking for ways to prosper at the expense of innocent, upstanding U.S. producers and their workers. A pretty good tip-off that an article about China and trade is going to miss the mark, mislead, and misinform is when the author describes trade as a contest between two countries with the trade account characterized as a scoreboard.
The United States and China have exchanged accusations of dumping for years and imposed tit-for-tat duties. All along, though, China has generally come out on top: Its trade surplus with the United States rose to $273 billion in 2010…more than three times the level of a decade earlier.
Is the reader to conclude, then, that more antidumping measures against Chinese products are integral to reducing the trade deficit and, ultimately, “com[ing] out on top”? That conclusion doesn’t really dovetail with the point about how antidumping does nothing to restore U.S. production. But I digress.
The main problem with the article is that it escorts readers to the incorrect conclusion that it was Chinese furniture producers who initiated efforts to get around the U.S. antidumping duties. Implied throughout the article is that a man named Lawrence Yen, president of a Chinese furniture company, was the architect of some crafty plan to avoid U.S. duties. It reports that during a meeting of Chinese furniture makers in Dongguan: “[Yen] told them [he] would set up a factory in Vietnam,” which was presented in the article as though it were the idea’s genesis. The caption to the inset chart of furniture imports in the article reads:
To avoid a 2005 U.S. tariff on Chinese-made wooden bedroom furniture, Chinese furniture companies moved operations to other Asian countries, thwarting U.S. efforts to curb “dumping,” the export of goods at unfairly low prices.
This presentation of events may serve the clichéd theme that Americans are in a pitched battle with the Chinese, who are willing to stretch and break the rules to “win,” but it fails to give readers critical parts of the story. The fact is that this strategic tariff aversion plan, which is as legal and common as off-the-shelf tax minimization software at Best Buy, was the brainchild of the U.S. domestic furniture industry before it filed the case in 2004.
No Time to Debate Patriot
Back in February, Democratic leader Harry Reid promised fellow senator Rand Paul that—after years of kicking the can down the road—there would be at least a week reserved for full and open debate over three controversial provisions of the Patriot Act slated to expire this weekend, with an opportunity to propose reforms and offer amendments to any reauthorization bill. And since, as we know, politicians always keep their promises, we can look forward to a robust and enlightening discussion of how to modify the Patriot Act to better safeguard civil liberties without sacrificing our counterterror capabilities.
Ha! No, I’m joking, of course. Having already cut the legs out from under his own party’s reformers by making a deal with GOP leaders for a four-year extension without reform, Reid used some clever procedural maneuvering to circumvent Rand Paul’s pledged obstruction, slipping the Patriot extension into an unrelated small-business bill that’s privileged against filibusters. All this just to prevent any debate on amendments—the most prominent of which, the Leahy-Paul amendment, is frankly so mild that it ought to be uncontroversial. (Among other things, it modifies some portions of the statute already found constitutionally defective by the courts, and codifies some recordkeeping and data use guidelines the Justice Department has already agreed to implement voluntarily.) Apparently it’s too much to even allow these proposals to be debated and voted on.
One reason may be that a growing number of senators—most recently Ron Wyden and Mark Udall—have been raising concerns about a classified “sensitive collection program” that makes use of the sunsetting “business records provision,” also known as Section 215. They’ve joined Dick Durbin and (former Senator) Russ Feingold in hinting that there may be abuses linked to this program the public is unaware of, and that, moreover, the secret Foreign Intelligence Surveillance Court has interpreted this provision (in a classified ruling, of course) in a way that the general public would find surprising, and which goes beyond the law’s apparent intent. Intelligence operations, of course, must remain secret, but this means we are now governed by a body of secret law, potentially at odds with citizens’ understanding of the public statute—with the result that we cannot even know the true reason that common sense reforms, once endorsed unanimously by the Senate Judiciary Committee, cannot be adopted. This is—to put it very mildly—not how a democracy is supposed to function. Equally troubling, there’s strong circumstantial evidence (which I’ll outline in a separate post) that the program in question may involve large-scale cell phone location tracking and data mining—a conclusion shared by several other analysts who’ve followed the issue closely.
The one silver lining here is that, while press may not have the patience for a complicated policy debate involving byzantine intelligence law—especially now that many Democrats have decided that powers which raised the specter of tyranny under George W. Bush are unobjectionable under an Obama administration—they are always happy to cover a legislative boxing match. Perhaps, thanks to Sen. Paul’s intransigence, we’ll finally see a little sunlight shed on these potent and secret surveillance powers.
On Pins and Angels
The focus of the debate over a national curriculum has shifted to the illegality of the federal government extorting states to homogenize their standards and paying for national tests. It’s an important point, but let’s remember another one that Neal McCluskey has been at pains to make: these are bad ideas irrespective of their legality.
There is no consistent body of evidence supporting national standards and testing schemes, while there is a vast and consistent body of evidence that the least regulated, most market-like education systems around the world outperform those blessed with the careful oversight of bureaucrats and regulators.
The push for homogenized national education standards is so unscientific and anti-empirical, so purely based on the faith its proponents have in the rightness of what they are doing, as to evoke medieval scholasticism.
NY-26 Post Mortem
Today POLITICO Arena asks:
Reacting to yesterday’s NY-26 election results, Paul Ryan this morning said, “I saw the ads. I saw burning people’s Medicare cards. If you can scare seniors into thinking that their current benefits are being affected, that’s going to have an effect. And that is exactly what took place here.” Do Republicans have a messaging problem on Medicare?
My response:
Some Republicans have a messaging problem — that partially explains the NY-26 result. Others, like Paul Ryan, are telling it straight, for which they should be commended.
Medicare “as we know it” will soon end, as every honest analyst has recognized. If Democrats continue to demagogue the issue, we have a character problem on our hands. And if enough voters fall for that flim-flam, we have a national problem of lethal proportions. Hard reality doesn’t play politics.
Wednesday Links
- DON’T FORGET: Today at 2:00 p.m. Eastern at Cato, former Minnesota governor Tim Pawlenty will detail specific spending cuts Congress can make as it tries to rein in the size and scope of the federal government in “Limiting Government: What Washington Can Learn from Minnesota.” Tune in at our live events hub, or watch on Facebook.
- It’s not low taxes that caused the Greek crisis, but high spending.
- A new Internal Revenue Service account reporting rule would drive out foreign capital.
- A defense budget that does not force trade-offs assumes the United States can take on any mission, and that all are necessary.
- If the Affordable Care Act is so great, why are so many people seeking waivers?
Financial Crises as Information Problems
If you haven’t seen it already, be sure to give a read to Friedman Prize winner Hernando de Soto‘s recent piece in Business Week, “The Destruction of Economic Facts.” It’s a fascinating perspective on the economic and financial turmoil that is wracking the United States and the world.
As de Soto perceives more easily from working in developing economies, an important input into functioning markets is good information—about property, ownership, debts, and so on. The “destruction of economic facts” is one of the roots of instability and uncertainty in Europe and the United States: “In a few short decades the West undercut 150 years of legal reforms that made the global economy possible.”
The law and markets are information systems, says de Soto:
The rule of law is much more than a dull body of norms: It is a huge, thriving information and management system that filters and processes local data until it is transformed into facts organized in a way that allows us to infer if they hang together and make sense.
If you’re interested in information and transparency, it’s worth a read.
TAA Reversal on Grand Bargain
On Monday, a group of 41 Senate Democrats, led by Sen. Debbie Stabenow (MI) sent a letter to President Obama, praising his administration’s recent decision to abandon its erstwhile promotion of the three pending trade deals as “job creators” and instead warn Congress it won’t submit the pacts for a vote unless they can be assured that a stimulus-enhanced version of trade adjustment assistance will be renewed.
The letter contains much about the benefits of the program, with little mention of its costs to taxpayers and even less concern shown for the innocent consumers whose pockets have been picked for decades to maintain the jobs lost when trade is allowed to flow more freely. That’s pretty standard fare for protectionists, who rely on the hidden and dispersed nature of the costs to get support for their policies. What’s new about this situation is the ratchet effect — the base TAA program is still in place, so what they are asking for is a renewal of part of the stimulus as a pre-condition for supporting trade liberalization. Note that the stimulus changes included a removal of the requirement that job losses be linked to a trade agreement (a feature, not a bug of the program, according to the Senators).
Wait, did I say a renewal of TAA-plus would be a pre-condition for supporting trade agreements? Not necessarily. Note this telling paragraph of the letter:
While we the undersigned may have differing views on elements of the trade agenda – with some of us looking forward to supporting the pending trade agreements with South Korea, Colombia, and Panama, and others skeptical of the impact of the agreements -we are unified in our belief that the first order of business, before we should consider any FTA, is securing a long-term TAA extension. [emphasis added]
As I’ve said repeatedly, I understand (even if I don’t support) the political calculation that TAA is necessary — and worth it– if it secures votes for trade liberalization. But reading between the lines, some of the letter signers have no intention voting for the trade agreements, even if the mega-TAA is approved. What we have here is a reversal of the grand bargain on trade liberalization, that gave extra welfare to workers who lost their job because of freer trade in exchange for support for trade agreements that lowered trade barriers. That ‘grand bargain’ has been tenuous for years now, of course — witness the complete lack of movement on the trade agreements even after the 2009 enhancement of TAA, at least until recent months. But now, rather than using TAA to buy votes for trade liberalization, the administration and their allies appear to using pretty-much-assured votes for trade liberalization to buy TAA. As a Wall Street Journal editorial said on Friday, it’s extortion.
You Can Fool Some of the Audiences Some of the Time…
…but not this one.
According to Education Week, yesterday U.S. Secretary of Education Arne Duncan told an audience at the National Center on Education and the Economy that “we have not and will not prescribe a national curriculum.” Many in attendance got a good laugh out of that one.
Federalism and Med-Mal Reform
Thanks to star libertarian lawprof and Cato senior fellow Randy Barnett for pointing out something that has needed saying for a while: most proposals in the U.S. Congress to address medical malpractice law run into serious federalism problems.
Most medical malpractice suits go forward in state courts under state law. If the U.S. Congress wishes to impose a nationwide rule on these suits, such as by limiting damages for pain and suffering, it first needs to answer the question: under which of the federal government’s constitutionally prescribed powers is it acting? Even if it can identify such authority, it should also ask: is it a wise idea—consistent with what one might call a prudential federalism—to gather yet more power in Washington at the expense of the states?
Unfortunately, the backers of the current federal med-mal bill have chosen to rely on the Supreme Court’s very expansive “substantial effects” doctrine, which as Barnett explains:
allows Congress to regulate any economic activity in the country that can be said, in the aggregate, to have a “substantial effect” on interstate commerce. This doctrine was unknown before the 1940s, and goes far beyond the original power to regulate trade between states. This is how most of Congress’ regulatory power has been justified since then.
Although it is followed even by conservative justices, Justice Clarence Thomas has long criticized the Substantial Effects Doctrine on the ground that it exceeds the original meaning of the Constitution.
Let’s step back for a moment to review what’s not at issue here. First, this is not an argument over whether liability reform of some sort is a good idea: in fact Prof. Barnett “strongly support[s] reforming our malpractice laws to protect honest doctors from false claims and out-of-control state juries.” (So do I.)
Nor is this an argument over whether the federal government should simply leave the state courts alone as a general proposition, as some late-blooming friends of federalism on the left side of the aisle seem to suggest. Our constitutional scheme of government is entirely consistent with federal-level supervision of state courts when those courts behave in certain ways, as by violating litigants’ due process, impairing the obligation of contract, or abridging the privileges and immunities of citizens of other states, to name but a few. Article IV, Section 1 confers on Congress a broad charter to prescribe to states “by general Laws” how they are to accord full faith and credit to other states’ enactments. That’s not even counting Congress’s genuine interstate commerce power (as opposed to the on-steroids New Deal version) or various other powers.
Ben Bernanke: Central Planner
There’s a great piece in the spring issue of The Independent Review on Federal Reserve Chairman Ben Bernanke by San Jose State Professor Jeffrey Rogers Hummel. Although a bit long, its well worth the read for anyone wanting to understand both Bernanke’s thinking and his actions during and since the financial crisis.
First, Prof. Hummel discusses the differences between Bernanke’s and Milton Friedman’s explanations for the Great Depression. Those that debate whether Bernanke’s actions, especially the quantitative easings, would be approved of by Friedman will get a lot out of this discussion. From this comparison, you get the point that Friedman was concerned about overall credit conditions and liquidity, whereas Bernanke is less focused on the monetary factors than on the impairment of credit intermediation, which explains his support of selective bailouts.
Hummel’s comparison of Greenspan and Bernanke is also insightful, particularly since many (myself included) often lump the two’s policies together. From the analysis, it is clear that Greenspan falls into the Friedman camp, his “rescues” were of the financial system in general, and not of specific firms.
One might say a bailout is a bailout, so what’s the difference between rescuing the system and rescuing individual firms within the system? Certainly that’s a view I have some sympathy for. The “Greenspan put” was as much a contributor to reckless risk-taking as anything else. Hummel, however, discuses why this difference ultimately matters, and why it shows Bernanke to fit the role of economic central planner. In short, the facts are presented that during the financial crisis, Bernanke did not actually increase overall liquidity by much, he re-directed it to those firms he deemed most important. This process of reducing liquidity to some sectors while re-directing it to others, arguably less efficient sectors, goes a considerable distance in explaining some of the decline in both aggregate demand and consumption in 2008.
Again, the piece is one of the more accessible and insightful I’ve read on Bernanke in quite a while.
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