Whither Constitutional Authority Statements?
On its first day of business this past January, the Republican House majority adopted a new rule requiring every bill to include a so-called constitutional authority statement, listing the part(s) of the Constitution that give Congress the power to do what the bill says.
At the time, I analyzed the requirement, as did Cato’s chairman emeritus Bill Niskanen, and what effect it might have on congressional action. We noted that, while it was a good thing for people (and especially elected officials) to be paying attention to the Constitution, the practical effect may be negligible because legislators would overwhelmingly cite the General Welfare Clause, Commerce Clause, and Necessary and Proper Clause — all part of Article I, section 8. To minimize this result, Cato ran an ad in Politico and other publications explaining what these clauses could and could not justify. Here are the points we made:
- Contrary to modern readings, the General Welfare Clause does not grant Congress an independent power to tax and spend for the “general welfare.” If it did, there would be no need to enumerate any other powers. Rather, it authorizes Congress to enact the specified taxes for the specified purposes—headings more precisely defined by the 17 enumerated powers or ends that follow. And Congress’s power to tax for the “general welfare” precludes it from taxing to provide for special parties or interests.
- The Commerce Clause too does not authorize Congress to regulate anything and everything, which again would put an end to the idea of a government of enumerated and thus limited powers. Under the Articles of Confederation, states had erected tariffs and other protectionist measures that were impeding interstate commerce. To end that and ensure free interstate commerce, Congress was given the power to regulate, or “make regular,” such commerce—the main sense of “regulate” at the time. Were Congress thought to have the all but unbounded regulatory power it exercises today, the Constitution would never have been ratified.
- The Necessary and Proper grants Congress the means to execute its enumerated powers or ends and those of the other branches. It adds no new ends. And the means must be “necessary and proper.” That means they must respect the Constitution’s structure and spirit of limited government; they must respect federalism principles; and they must respect the rights retained by the people.
So, nine months later, what happened? The Republican Study Committee – essentially the GOP House Caucus’s conservative sub-caucus — has come up with the following analysis (analyzing 3042 bills through September 16, some of them counted more than once in the below statistics):
- 3 bills cite only the Preamble to the Constitution.
- 84 bills cite only Article 1, which creates the Legislative Branch.
- 58 bills cite only Article 1, Section 1, which grants all legislative powers to Congress.
- 470 bills cite only Article 1, Section 8, which is the list of specific powers of Congress, without citing any specific clause.
- 539 bills cite [the General Welfare Clause].
- 567 bills cite [the Commerce Clause].
- 247 bills cite [the Necessary and Proper Clause], without citing a “foregoing power” as required by [Article I, section 8,] clause 18.
- 309 bills cite two or more of the “general welfare” clause, commerce clause, or the “necessary and proper” clause.
- 87 bills cite Article 1, Section 9, Clause 7, which provides that no money shall be drawn from the Treasury, but in consequence of appropriations made by law.
- 210 bills cite Article 4, Section 3, which provides that Congress shall have the power to make rules and regulations respecting the territory or property of the United States.
- 252 bills cite an amendment to the Constitution. For example, 54 cite the 10th Amendment (powers not delegated to the federal government), 30 cite the 14th Amendment (“equal protection, etc.”), and 64 cite the 16th Amendment (income tax).
Pretty thin gruel and, as I noted above, not unexpected. Then again, if the constitutional authority statement requirement has caused even one House member to waver over what he has the power to propose — let alone to refrain from offering a bill — this minor legislative rule will have been an improvement on the status quo ante.
Finally, a Vote on the Three Trade Agreements
Almost a thousand days into his term, President Obama has at last submitted the trade agreements with South Korea, Colombia, and Panama for an up or down vote in Congress.
All three agreements appear to have majority support in both the House and the Senate. Organized labor is putting up its usual anti-free-trade fight against all three, with AFL-CIO boss Richard Trumka coming out swinging in a Politico op-ed this week. He makes the standard union argument that Colombia is an unworthy free-trade partner because of ongoing violence against union members in that country.
In a Free Trade Bulletin earlier this year, my Cato colleague Juan Carlos Hidalgo and I examined the commercial benefits of the agreement with Colombia as well as the hollowness of the union charge. In the past decade, Colombia has made tremendous progress against violence in general, and especially violence aimed at union members. In fact, as we write in the FTB:
The statistics on the number of killings against union members vary depending on the source, with the figure from the government’s Ministry of Social Protection being lower than that of the National Union School (ENS for its acronym in Spanish), a Colombian nongovernmental organization affiliated with the labor movement. However, both sources show a steep decline in the number of killings since 2001. Moreover, when compared with the total number of homicides in the country, killings of union members clearly have dropped at a faster rate than those of the general population (see Figure 1).
Critics of the FTA fail to recognize that violent crime affects all levels of Colombian society, not only trade unions. What is more, the statistics show that union members enjoy more security than the population at large.
Looking at the homicide rate as defined by the number of murders per 100,000 inhabitants, the rate for the total population in 2010 was 33.9 per 100,000, whereas the rate for union killings was 5.3 per 100,000 unionists that same year (using the statistics of the ENS). That means that the homicide rate for the overall population is 6 times higher than that for union members.
Having just returned from a speaking trip last week to Medellín, Colombia, I can vouch that, after a difficult period of battling Marxist guerrillas and drug cartels, Colombia has once again become a normal country with a growing economy. Medellín is a bustling, business-oriented city with the usual challenges of traffic congestion. The students I spoke with at EAFIT University seemed eager for closer ties with the United States, and they do not understand why it has taken almost five years since the signing of the agreement for Congress to schedule a vote on it.
As I explained in an interview with the city’s leading newspaper (conducted in English, but translated here in Spanish), the politicians in Washington have run out of excuses for not establishing free trade between our two countries.
[Our Cato colleague Doug Bandow made the case for a trade agreement with South Korea in a study we released last year.]
Term Limits and Popular Government
Rasmussen Reports has a new poll indicating 71 percent of the public want term limits for members of Congress. This finding is nothing new. Strong majorities have supported congressional term limits for the past two decades. What about before that? I decided to take a look at the Gallup polling going back more than six decades. Here’s what I found.
The first polling on the topic in 1947 showed 46 percent supporting limits for the House (48 percent opposed) and 52 percent favoring them for the Senate. Eight years later Gallup found support had fallen to 38 percent for senatorial limits. In 1964-5, from 48 to 50 percent favored term limits for members of both chambers. The late 1960s and early 1970s saw weak results for term limits. In 1969, 43 percent favored House limits; two years later a survey showed support for Senate limits had fallen to 39 percent.
And then everything changed.
Surveys in 1977 and 1981 showed about 60 percent support for limits on the terms of members in both houses. Later in the 1980s, support went up toward 65 percent or so. By 1994, Gallup found its first 70 percent response in favor of congressional term limits. A year later, the number was 67 percent. Thereafter, Gallup apparently did not poll on the topic, perhaps because the Supreme Court took term limits off the political agenda.
Still, in 2003, an NBC/Wall Street Journal survey found 67 percent of the public thought term limits were a good idea. A year later a Fox News/Opinion Dynamics poll found 78 percent supported the idea. Against this background, the Rasmussen poll makes perfect sense.
People sometimes argue that popular changes to the Constitution or the rules of the political game can reflect momentary passions that pass, leaving only unwise policies. This concern is not without merit. However, if the public indicates a strong and growing desire for change over more than three decades, shouldn’t a republican government follow that settled and presumably considered desire? I mean, republican government is government by the people, right?
Congress on Transparency: ‘Needs Improvement’
“Needs improvement” is the understated theme of a Capitol Hill briefing this morning entitled “Publication Practices for Transparent Government: Rating the Congress.” (Live-streamed starting at 9:00 am. If timely, check it out—the video will come up before too long also—and join the conversation on Twitter at the #RateCongress hashtag.)
Congress needs to improve its data publication practices if it’s going to be the transparent legislature that it should be.
How did we arrive at this conclusion? We’re doing more than stating the obvious.
A Cato Briefing Paper released today entitled “Publication Practices for Transparent Government” goes through some technically challenging but essential concepts in data publication: authoritative sourcing, availability, machine-discoverability, and machine-readability. Together, these practices will allow computers to automatically generate the myriad stories that the data Congress produces have to tell. Following these practices will allow many different users to put the data to hundreds of new uses in government oversight.
At the event, we’re releasing informal grades that rate how each of the major parts of the legislative process are published as data. To produce the grades, we constructed a “data model” of formal federal legislative processes (HTML version, Word version).
Make-Believe Defense Cuts
Earlier this week, the House Armed Services Committee Republican staff released a video using the anniversary of September 11 to argue for higher military spending while pretending that lately we have cut the defense budget. Chris Preble and I rebutted these outlandish claims, and Evan Banks made our comments into a cool video:
Hawks like HASC Chairman Buck McKeon (R-CA)—who thinks that “power in benevolent hands is a virtue, not a vice,”—pretend that we are about to slash military spending thanks to the Budget Control Act, the deficit deal legislated early last month. Reporters abet them by repeating the White House PR myth that the bill’s security budget cap will cut Pentagon spending by $350 billion over ten years, and writing that the sequestration provision will probably cut another $500 billion. But as I explained here, the BCA will likely produce either a miniscule defense cut in the near term or no cuts at all. That is because I consider a “cut” to mean spending less than we do now, not less than plans say, because agencies other than defense can absorb the cuts required by the security cap, and because the bill encourages lawmakers to move capped base defense funds into the uncapped war bill.
The Senate Appropriations Committee’s proposed funding levels (302b allocations in budget speak) released earlier this week bear out those concerns. Because they come after the BCA, the Senate spending levels are likely to guide those set by the House. Compared to 2011, the committee would cut just under $3 billion from the base defense budget, which is less than one percent. That cut comes entirely from the military construction and family housing account, which was recently bloated by the Base Realignment and Closure (BRAC) process. The senators get another chunk of the $4.5 billion in security spending cuts required by the BCA from State, which would lose $3.5 billion, and Homeland Security, which loses a half billion. The National Nuclear Security Administration and the Veterans Administration get minor increases. For more on these allocations, see Stimson’s The Will and the Wallet blog, especially Matthew Leatherman and Russell Rumbaugh’s recent posts.
So that’s a minor defense cut, right? Maybe not. The Senate appropriators seem to have slipped a larger amount of base defense spending into the war bill (Overseas Contingency Operations funding). The committee’s markup press release brags that it fully funded the president’s war request of $117.8 billion, but then claims that they cut $6.6 billion from that request by trimming funding for U.S. and native forces in Afghanistan. What that most likely means is that the committee, probably in league with the Pentagon, cut the war bill by that amount and shifted the same amount over from the base, keeping the war bill flat and maintaining the fiction of a minor base defense cut. We won’t know for sure until the appropriations bills are published.
The longer term prospects for the BCA cutting defense spending are a story for another time. For now, suffice it to say that the prospects of the bill’s current spending limits staying in place for ten years are slim. Future Congresses easily free themselves from legislative bonds set by prior ones, and democracies with two-to-six-year election cycles can’t stick to ten-year plans.
Nearly Two-Thirds of ObamaCare’s Supposed Beneficiaries Think It Won’t Help Them
Here are a few takeaways from the Kaiser Family Foundation’s most recent monthly poll.
1. Nearly Two Thirds of ObamaCare’s Supposed Beneficiaries Think It Won’t Help Them.
ObamaCare‘s actual beneficiaries are politicians, government bureaucrats, insurance companies, drug manufacturers, etc.—but that’s another blog post for another time.
The law’s supposed beneficiaries are the uninsured. Yet 61 percent of them think the law will either not help them or will hurt them (see pie chart below). The main takeaway: Congress can repeal ObamaCare and its supposed beneficiaries won’t even care.
2. Some of the Uninsured Who Think ObamaCare Will Help Them Are Wrong.
One respondent said that under ObamaCare, you “can go to the doctor with no problems, unlike now you have to worry about insurance and bills.” Yeah. Good luck with that.
3. ObamaCare Is Less Popular than Ever.
In August 2011, support for ObamaCare hit an all-time low in the KFF poll:
‘The Constitution Requires Judicial Engagement, Not Judicial Abdication,’ Writes the 11th Circuit, and Then Leads by Example
On Friday, when the 11th Circuit struck down the individual mandate portion of ObamaCare, a trip to the Supreme Court became all but assured. Previously, although Supreme Court review was highly probable even if a circuit split didn’t develop, there was still an outside chance that the Court would deny review if all circuit courts upheld the law. Now, the Court is essentially obliged to take the case. This is reason enough to be happy about the decision.
As I work my way through the opinion, I become even happier. The opinion is not only exhaustive, it is convincing. If Congress oversteps the outer limits of its power, the court explains, then “the Constitution requires judicial engagement, not judicial abdication.” Thus, we are given over 200 pages of “judicial engagement”: the law is thoroughly explained, the Supreme Court precedents are summarized, and every major counter-argument is addressed. Moreover, the opinion adds nuance to certain arguments that were either not discussed in the briefs or discussed in a subtly different way. I will highlight some of those nuances below.
The opinion describes “two broad limitations on congressional power under the Commerce Clause.” The first is an “accommod[ation] of the Constitution’s federalist structure” that “preserve[s] ‘a distinction between what is truly national and what is truly local.’” The second is that courts should “not interpret the Commerce Clause in a way that would grant to Congress a general police power, ‘which the Founders denied the National Government and reposed in the States.’”
Both of these limitations are indisputable aspects of the existing case law. They are also too often ignored. By enumerating these limitations, the 11th Circuit opinion makes them even more explicit, almost turning them into factors of a legal test. And this is the right way to conceive of them. Those of us who oppose the mandate have constantly reiterated that, if this is allowed, there is nothing left that Congress may not do. Those who support the mandate have either pushed back against this characterization and argued that “health care is special” (in other words, “just this once, we swear”), or they have accepted the new scope of congressional power with a shrug, arguing that existing Supreme Court cases validate the individual mandate, even if this gives Congress unlimited power.
Friday’s opinion unequivocally asserts that such a result is unacceptable. If the current tests of congressional power under the Commerce Clause—specifically the “substantial effects” test articulated in Wickard v. Filburn—are so broad that there is no limitation other than the whims of Congress, then it is time for the Supreme Court to explain whether this constitutionally perverse result is, in fact, where we now stand. Otherwise, the 11th Circuit is obliged to uphold the original principles of the Constitution—that Congress’s powers are “few and defined”—against an unprecedented law that would undermine this founding tenet.
Boehner Plan Doesn’t Cut Spending
House Speaker John Boehner is scrambling to revise his budget plan after the CBO found that it would only cut spending by $850 billion, not the $1.2 trillion promised.
However, the Boehner plan doesn’t actually cut spending at all. The chart shows the discretionary spending caps in the Boehner plan. Spending increases every year—from $1.043 trillion in 2012 to $1.234 trillion in 2021. (This category of spending excludes the costs of wars in Iraq and Afghanistan).
The “cuts” in the Boehner plan are only cuts from the CBO baseline, which is an imaginary path of future spending designed as a planning tool for Congress. Boehner can propose to spend any amount in any future year he wants, and in this plan he choose to have a steadily rising spending path.
The Boehner plan also doesn’t cut spending in a more fundamental way. It doesn’t lay out any particular programs or agencies to terminate. I’m in favor of spending caps as a secondary enforcement mechanism, but actual cuts have to come first. A caps-only plan like Boehner’s just kicks the can down the road. At best, it simply nudges future legislators to actually cut something specific.
Why doesn’t the House leadership propose real cuts? They’ve certainly got the resources and expertise to do the job. A single senator — Tom Coburn — produced a 620-page report last week detailing hundreds of programs to cut and terminate. Coburn and his staff read through thousands of articles and reports on the real-world performance of federal programs, and they made a good case for each particular cut they proposed.
Republican leaders can’t hide behind baselines forever. If they really want a smaller government as they keep claiming, they’ve got to target particular programs and agencies and begin a national debate about terminating them.
Wyden Pressing Intel Officials on Domestic Location Tracking
Back in May, during the debates over reauthorization of the Patriot Act, Sens. Ron Wyden (D-OR) and Mark Udall (D-CO) began raising a fuss about a secret interpretation of the law’s so-called “business records” authority, known to wonks as Section 215, arguing that intelligence agencies had twisted the statute to give themselves domestic surveillance powers Congress had not anticipated or intended. At the time, I marshaled a fair amount of circumstantial evidence that, I thought, suggested that the “secret authority” involved location tracking of cell phones. Wyden backed off after being promised a secret hearing to address his concerns—but indicated he’d be returning to the issue if he remained unsatisfied. The hearing occurred early last month. Now I suspect we’re seeing the other shoe dropping.
At a confirmation hearing this morning for Matthew Olsen, who’s been tapped to head the National Counterterrorism Center, Wyden repeatedly asked the nominee whether the intelligence community “use[s] cell site data to track the location of Americans inside the country.” This comes on the heels of a letter Wyden and Udall sent to Director of National Intelligence James Clapper demanding an answer to the same question. Olsen was unsurprisingly vague, calling it a “complicated question” but allowing that there were “certain circumstances where that authority may exist.” The committee was promised a memo explaining those “circumstances” by September. That means that just about ten years after Congress approved the Patriot Act, a handful of legislators may get the privilege of learning what it does. Ah, democracy.
On a related note, one of the data points I cited in my previous post was that Wyden’s Geolocation Privacy and Surveillance Act had, somewhat unusually, been structured primarily as a reform to the Foreign Intelligence Surveillance Act (FISA), which governs intelligence spying, only later incorporating the same protections into the statutes governing ordinary criminal investigations. Especially striking was the inclusion of a specific prohibition on the use of Section 215 for location tracking, above and beyond the general warrant requirement. Since that writing, however, the bill gained Republican co-sponsorship, and dropped the changes to FISA that had previously been the bill’s centerpiece. Instead, the bill now contains an explicit exception for FISA “electronic surveillance,” in addition to the section providing for location tracking authorized by either a criminal or a FISA warrant. I’m not privy to whatever negotiations necessitated that change, but it’s hard to imagine anyone would have insisted on such a substantial restructuring if the intelligence community weren’t doing at least some location tracking pursuant to a lower standard than probable cause.
It’s not entirely clear exactly what the current version of the bill would permit, however. FISA is mentioned twice in the draft: once as part of a vague general exemption for “electronic surveillance,” and then again as one of the sources of authority for a “warrant” to do geolocation tracking. At a first pass, though, those two definitions ought to overlap, because FISA requires a secret intelligence court to issue a warrant based on probable cause (to believe the target is an “agent of a foreign power”) for government monitoring that falls within the FISA’s definition of “electronic surveillance,” in contrast with the far laxer standards that apply to the use of Section 215. It’s therefore an interesting puzzle what, exactly, that exception is meant to permit. Possibly the idea is to permit the (otherwise prohibited) “use” and “disclosure” of geolocation information already obtained without a warrant in order to target future judicially authorized “electronic surveillance,” but it’s hard to be sure. What does seem increasingly sure, however, is that location tracking is connected to the controversy over Section 215—and that Congress owes the American people a debate over the proper use and scope of that power, which it has thus far refused to have.
The Minefield of American Criminal Law
Over the weekend, the Wall Street Journal ran an excellent article about the problem of overcriminalization—the proliferation of criminal laws and how more and more people can find themselves on the wrong side the law without even realizing it. Here’s an excerpt:
In 2009, Mr. Anderson loaned his son some tools to dig for arrowheads near a favorite campground of theirs. Unfortunately, they were on federal land. Authorities “notified me to get a lawyer and a damn good one,” Mr. Anderson recalls.
There is no evidence the Andersons intended to break the law, or even knew the law existed, according to court records and interviews. But the law, the Archaeological Resources Protection Act of 1979, doesn’t require criminal intent and makes it a felony punishable by up to two years in prison to attempt to take artifacts off federal land without a permit.
Read the whole thing.
It’s great that this phenomenon is getting more attention. Too many people in Washington seem to think that the more laws Congress enacts, the better the job performance of the policymakers. That’s twisted. Before an elected official can take any action whatsoever, he or she must first take an oath to uphold and preserve the Constitution—and the role of the federal government in the criminal area is supposed to be quite limited. I testified before a congressional committee two summers ago on this subject. And Judge Alex Kozinski, quoted in the WSJ article above, has a terrific essay in my book, In the Name of Justice, about the score of federal criminal laws now on the books. And Cato adjunct scholar Harvey Silverglate authored a fine book on the problem, called Three Felonies a Day. More here (pdf) and here.
Requiring Consensus in Congress
Yesterday Cato hosted a book forum on Joe Gibson’s new book, A Better Congress: Change the Rules, Change the Results. The author had a lot of thoughtful ideas, and the event is worth watching (its also a short book, easy read). Several of the book’s proposals move toward getting greater consensus in Congress and more agreement across the parties. Which got me thinking, if you want consensus, why don’t you start by just requiring it. Something like a 300 vote requirement in the House with a 80 vote requirement in the Senate. There’s nothing in our Constitution that requires simple majorities (or 60 for that matter), at least for routine business (yes there are rare exceptions). This would not stop every bad law, far from it, but it would require laws to have more support, with the result that would have more legitimacy in the eyes of the public.
Now the biggest problem with this proposal would be that it favors the status quo, as changing the status quo would become far more difficult. The solution is to require every federal program and authority to have a sunset date, something like 5 or at most 7 years. If you can’t get broad consensus to keep a program, then it sunsets and goes away. If the program is much loved, then it should have no problem staying. Worth keeping in mind that the vast majority of bills pass the Senate by unanimous consent, almost in effect requiring 100 votes. So I don’t see either of these changes being that disruptive to the Senate and would likely improve the process in the House.
Will ‘the People’ Fall for It?
Today POLITICO Arena asks:
President Barack Obama is taking a cue from President Bill Clinton by pushing a series of bite-sized policies. Among them: a new fatherhood pledge, graphic tobacco warnings, updated sunscreen requirements, an anti-bullying summit and entertainment discounts for fathers to spend more time with their kids. Can he use this “school uniforms” approach to effectively appear above the daily partisan Washington sniping? And is this “small ball” approach a retreat from the grander “change we can believe in” vision candidate Obama touted in the 2008 campaign?
My response:
The president has two main responsibilities: internationally, to oversee the nation’s foreign policy; domestically, to see that the laws be faithfully executed. For Obama to devote his attention to trivia like this is not only to demean the office of the presidency — recall Clinton’s “boxers or briefs” incident — but to play to the basest instincts of the electorate.
Unfortunately, in a country in which nearly 60 percent of adults don’t know when we declared our independence and a quarter don’t know from what country, Obama’s “small ball” politics may work. This is a president who couldn’t get a budget passed for two years, despite having huge majorities in Congress, yet he’s got time for this. Perhaps H.L. Mencken put it best: “People deserve the government they get, and they deserve to get it good and hard.” I didn’t know Obama was a student of Mencken.
Cato on Facebook
Cato on Twitter
Cato on Google+
Cato on YouTube
