The Census Asks Too Much
Everyone in America, I presume, has just received a letter from the U.S. Census Bureau urging us to fill out our Census forms. Seems like a very expensive way to tell us to watch for the form to arrive in the mail. But I’m particularly interested in why they say we should promptly fill out the form:
Your response is important. Results from the 2010 Census will be used to help each community get its fair share of [federal] government funds for highways, schools, health facilities, and many other programs you and your neighbors need. Without a complete, accurate census, your community may not receive its fair share.
Obviously this is a zero-sum game. If my neighbors and I all fill out the form, then you and your neighbors will get less from the common federal trough. But at least we’ll be getting our “fair share,” as the letter tells us twice in three sentences.
But where does the government get the authority to ask me my race, my age, and whether I have a mortgage? In fact, the Constitution authorizes the federal government to make an “actual enumeration” of the people in order to apportion seats in the House of Representatives. That’s all. Not to define and count us by race. Not to ask whether we’re homeowners or renters. Just to ask how many people live here, so they can apportion congressional seats.
I’m not interested in getting taxpayers around the country to pay for roads and schools and “many other programs” in my community. All the government needs to know from me is how many people live in my house. And I will tell them.
More on the census and the Constitution here.
The Bill Is Deemed Passed
Today’s question at Politico Arena is:
Should Democrats be worried that health care could be subject to a successful court challenge?
My response is:
I’m the first in my family not to be a lawyer. But Mike McConnell’s article seems compelling to me. As he notes, Article I, Section 7, of the Constitution requires that a bill must pass both houses of Congress to become a law. Duh. And for those who have trouble with that concept, he goes on: “As the Supreme Court wrote in Clinton v. City of New York (1998), a bill containing the ‘exact text’ must be approved by one house; the other house must approve ‘precisely the same text.’”
So the “deemed passed” rule doesn’t seem to be constitutional. Then the interesting question is, Will the Supreme Court strike down a major piece of welfare-state legislation just because Congress didn’t dot all the i’s and cross all the t’s. After all, some of us think the Supreme Court has failed to strike down legislation whose substance violates the Constitution. Would it be more forthright on a procedural issue? Would it dare to tell the political branches that they can’t have the health-care program they worked on for 14 months, negotiating careful and complicated compromises in both houses?
But then, the reason that Democrats are contemplating such an audacious scheme is precisely that they can’t find a bill that a majority of the House will vote for. So this wouldn’t be like the Supreme Court striking down Franklin Roosevelt’s Agricultural Adjustment Act, which passed Congress quickly and overwhelmingly in May 1933. It would not involve the Supreme Court standing up to the unified political branches. Rather, it would only require the Court to tell Congress that they have to actually pass bills before they become law, which apparently a majority of the House is not prepared to do.
Filed under: Government and Politics; Health, Welfare & Entitlements; Law and Civil Liberties
Six Reasons to Downsize the Federal Government
1. Additional federal spending transfers resources from the more productive private sector to the less productive public sector of the economy. The bulk of federal spending goes toward subsidies and benefit payments, which generally do not enhance economic productivity. With lower productivity, average American incomes will fall.
2. As federal spending rises, it creates pressure to raise taxes now and in the future. Higher taxes reduce incentives for productive activities such as working, saving, investing, and starting businesses. Higher taxes also increase incentives to engage in unproductive activities such as tax avoidance.
3. Much federal spending is wasteful and many federal programs are mismanaged. Cost overruns, fraud and abuse, and other bureaucratic failures are endemic in many agencies. It’s true that failures also occur in the private sector, but they are weeded out by competition, bankruptcy, and other market forces. We need to similarly weed out government failures.
4. Federal programs often benefit special interest groups while harming the broader interests of the general public. How is that possible in a democracy? The answer is that logrolling or horse-trading in Congress allows programs to be enacted even though they are only favored by minorities of legislators and voters. One solution is to impose a legal or constitutional cap on the overall federal budget to force politicians to make spending trade-offs.
5. Many federal programs cause active damage to society, in addition to the damage caused by the higher taxes needed to fund them. Programs usually distort markets and they sometimes cause social and environmental damage. Some examples are housing subsidies that helped to cause the financial crises, welfare programs that have created dependency, and farm subsidies that have harmed the environment.
6. The expansion of the federal government in recent decades runs counter to the American tradition of federalism. Federal functions should be “few and defined” in James Madison’s words, with most government activities left to the states. The explosion in federal aid to the states since the 1960s has strangled diversity and innovation in state governments because aid has been accompanied by a mass of one-size-fits-all regulations.
For more, see DownsizingGovernment.org.
Gun Rights Secure, Liberty Less So
This morning the Court heard argument in McDonald v. Chicago, the case asking whether the right to keep and bear arms extends to protecting against actions by state and local governments. Just as importantly, it asked whether the best way to extend that right would be through the Due Process Clause of Privileges or Immunities Clause of the Fourteenth Amendment (because the Second Amendment doesn’t apply directly to the states).
From the initial questioning through the end, it was quite clear that those living in Chicago — and, by extension, New York, San Francisco, and other places with extreme gun restrictions — will soon be able to rest easy, knowing that they will be able to have guns with which to protect themselves. Unfortunately, the Court did not seem inclined to adopt the arguments propounded by petitioners’ counsel Alan Gura (and supported by Cato) that the Privileges or Immunities Clause was the way to go. Chief Justice Roberts expressed reluctance at having to overturn the 1873 Slaughterhouse Cases and other justices joined in concerns over how activist judges would use the Clause if the Court revived it — even if that were the path that hewed more closely to the constitution’s true meaning.
This turn of events is unfortunate because reviving the Privileges or Immunities Clause, far from giving judges free reign to impose their policy views, would actually tie them closer to the text, structure, and history of the Constitution. As it stands now — and as it seems will be the case after McDonald is decided — many of our most cherished rights are protected only to the extent that judges are willing to label them as sufficiently “fundamental” to warrant such protection. That is an unprincipled jurisprudence and one that hurts the rule of law.
In short, it is a shame that the Supreme Court seems to be wasting a perfect opportunity to bring constitutional law closer to the Constitution. It is an even greater shame that it is wasting this chance to use guns to protect liberty.
Filed under: Government and Politics; Law and Civil Liberties
Democracy against Free Speech?
A new poll from Washington Post/ABC News poll shows that most respondents oppose the recent Citizens United decision by the U.S. Supreme Court. Just over 70 percent of those polled want to reinstate the unconstitutional restrictions. The questions asked may be found here.
Sean Parnell asks whether the wording of the questions in this poll drove the results. William McGinley shares Parnell’s concerns and suggests some alternative questions for future polling.
I was not surprised by the result. Polls have long found that substantial majorities support something called “campaign finance reform.” Over two years ago, a poll found that 71 percent of Americans wanted to limit corporate and union spending on campaigns. 62 percent also supported limiting the amount of money a person could give to their own campaign, even though such donations could not involve the possibility of corruption. (This desire to restrict self-funding, by the way, has been patently unconstitutional for over thirty years).
The history of public opinion also should be kept in mind. Fifty years ago, when mass polling started, researchers found that the public both supported and opposed the First Amendment. Surveys found overwhelming support for “the First Amendment” and other abstractions like “the Bill of Rights.” They also frequently detected less than majority support for actual applications of the First Amendment and the Bill of Rights. Majorities opposed, for example, permitting Communists or other disfavored groups to speak at a local school.
Not much has changed over the years. In 2007, a survey funded by the First Amendment Center reported the following opinions related to First Amendment freedoms:
- Only 56 percent believe that the freedom to worship as one chooses extends to all religious groups;
- 50 percent agree “A public school teacher should be allowed to use the Bible as a factual text in a history or social studies class.”
- 58 percent of Americans would prevent protests during a funeral procession, even on public streets and sidewalks;
- 74 percent would prevent public school students from wearing a T-shirt with a slogan that might offend others;
- majorities thought “the government should be allowed to require television and radio broadcasters to offer an equal allotment of time to conservative and liberal commentators.”
- That same poll also revealed that 66 percent of the public thought “the right to speak freely about whatever you want” was essential. Moreover, 74 percent found “the right to practice the religion of your choice” to be essential.
In the abstract, Americans continue to support First Amendment freedoms. In concrete cases, majorities still often oppose the exercise of such freedoms. Citizens United vindicated the First Amendment in a specific case that a majority does not support. This gulf between principle and application has been and continues to be common among Americans.
These findings suggest two thoughts. Liberals are now saying Citizens United should be undone because majorities oppose the decision. The principle that First Amendment rights should be overturned by majority sentiment may not please liberals in the future. Freedom of religion, in particular, attracts minority support in many concrete applications.
The more important lesson here involves an often ignored truth: the U.S. Constitution does not establish a government through which a majority can do anything it likes. The Bill of Rights marks a limit on political power even if a majority controls the government. (James Madison might have said especially if a majority controls the government). We have a Supreme Court to enforce those limits against government officials and against majorities. In Citizens United, the Court finally did what it should have done: protecting unpopular groups from the heavy hand of the censor. The fact that a majority favored and favors giving unchecked power to the censor matters not at all.
Filed under: Government and Politics; Law and Civil Liberties
Tuesday Links
- How the Tea Party movement can prove its authenticity.
- Why Americans’ first loyalty must be to the Constitution
- “Snowmageddon!” If you’ve been watching the news, recent snow storms both prove and disprove global warming, depending on who you talk to. According to Pat Michaels, both sides are wrong: “The fact of the matter is that global warming simply hasn’t done a darned thing to Washington’s snow. The planet was nearly a degree (Celsius) cooler in 1899, when the previous record was set. If you plot out year-to-year snow around here, you’ll see no trend whatsoever through the entire history.”
- Did last week’s government shutdown actually save American’s billions of dollars?
- Podcast:”Scrap ‘Don’t Ask, Don’t Tell’” featuring Christopher A. Preble.
Filed under: Cato Publications; Foreign Policy and National Security; General; Political Philosophy
Evan Bayh and Congressional Comity
Today Politico Arena asks:
Is Bayh’s lament on target?
My response:
The heart of Evan Bayh’s surprising announcement yesterday that he would not be seeking another term in the Senate was captured in three short sentences:
For some time, I have had a growing conviction that Congress is not operating as it should. There is too much partisanship and not enough progress — too much narrow ideology and not enough practical problem-solving. Even at a time of enormous challenge, the peoples’ business is not being done.
Beguilingly attractive as those sentiments may be, suggesting that some Golden Age of congressional comity has been lost, a candid look at our history shows that comity has been the exception, not the rule. And it’s occurred mainly when one party dominated Congress, as Democrats did during a fair part of the post-War period while Republicans were searching for their identity. So why not over the past year, when those conditions seemed to be in place? Is there something about today’s congressional divisiveness that distinguishes it from the past? I submit that there is, that it’s not narrow policy differences that mainly underpin what we’re seeing, but that the nation is up against a fundamental reality that much of the public is coming to see, even if many in Congress are slow to grasp it.
To barely summarize the matter, the Constitution sets forth a plan for limited government, not for government engaged in all manner of “problem-solving,” as Bayh put it – the problems of private life, mostly, from retirement security, to health care, education, job-creation, you name it. But for more than a century, Progressives have worked to overturn that design. And their something-for-nothing promises that have spurred the ever-greater socialization of life have attracted enough people to make it seem that we were, wonderfully, “all in this together,” especially since the costs of socialization were largely put off to the future. That’s the “comity” of the good life on borrowed money. But those costs cannot be put off forever. Eventually, they come due. And when they do, the differences between those who come finally to recognize reality, and those who still live the dream, are irreconcilable — because reality doesn’t “compromise.” I submit that we’re now at that point.
Not that there haven’t been voices decrying our episodic flights from reality all along — indeed, from the nation’s founding. But the post-New Deal trends, and the critique of those trends that came to wider attention through the Goldwater-Reagan revolution within the Republican Party, which the two Bush presidencies inflamed and thus sharpened, have produced a perfect congressional storm, so to speak, with irreconcilable proposals for how to get out of the mess looming before us. At bottom, in short, two different conceptions of government are at war.
Senator Bayh tells us that he looks forward to working with the president during the next 11 months ”to get our deficit under control, get the economy moving again, regulate Wall Street to avoid future financial crises, and reform education.” Yet his party’s actions, building on many of the Bush administration’s, have given us a deficit unprecedented by orders of magnitude, an economy stagnating due largely to political uncertainty, an analysis of our financial crisis that blames Wall Street while all but ignoring the role of the Fed and government-sponsored enterprises like Fannie and Freddie, and an approach to educational “reform” that denies poor children in the District of Columbia the vouchers that have enabled them to flee our appalling public schools. Compromise? How does one compromise with a proposal to expand Medicare when the program itself is moving fast toward bankruptcy?
Which brings us to the nub of the matter. It’s easy to get into socialism. Getting out is much harder, as the nations of Eastern Europe discovered, and are still seeing. It is here that compromise and comity are needed — to chart a way out. But that will never be achieved as long as there are enough in Congress who cling to the something-for-nothing myths that have brought us to this state. A comity that shields us from this reality is no answer to the divisiveness before us. If the elections of the past few months are any indication, the people are ahead of the politicians in seeing this — and that’s a good thing. If war is needed to reclaim a footing in reality, bring it on.
Filed under: Government and Politics; Political Philosophy
Congress Goes After Citizens United
Snowstorm notwithstanding, Sen. Charles Schumer and Rep. Chris Van Hollen introduced legislation in response to the Citizens United decision. A summary of their effort can be found here.
Some parts of the proposal are simply pandering to anti-foreign bias (corporations with shareholding by foreigners are prohibited from funding speech) and anger about bailouts (firms receiving TARP money are banned from funding speech). Government contractors are also prohibited from independent spending to support speech. We shall see whether these prohibitions hold up in court. The censorship of government contractors and TARP recipients will likely prove to be an unconstitutional condition upon receiving government benefits.
Despite Citizens United, Congress will try to suppress speech by other organizations. Schumer-Van Hollen relies on aggressive disclosure requirements to deter speech they do not like. CEOs of corporations who fund ads will be required to say they “approve of the message” on camera at the end of the ad.
Citizens United upheld disclosure requirements, but it also vindicated freedom of speech. The two commitments may prove incompatible if Schumer-Van Hollen is enacted. This law uses aggressive mandated disclosure to discourage speech. We know that members of Congress believe this tactic could work. Sen. John McCain said during the debate over McCain-Feingold that forcing disclosure of who funded an ad will mean fewer such ads will appear. In other words: more disclosure, less speech. Just after Citizens United, law professor Laurence Tribe called for mandating aggressive disclosure requirements in order to “cut down to size” the impact of disfavored speech.
During the next few months the critics of Citizens United may well show beyond all doubt that the purpose of its disclosure requirements are to silence political speech. In evaluating the constitutionality of Shumer-Van Hollen, the Court could hardly overlook such professions of the purpose behind its disclosure requirements.
One other part of Schumer-Van Hollen is probably unconstitutional. They would require any broadcaster that runs ads funded by corporations to sell cheap airtime to candidates and parties. Several similar attempts to equalize speech through subsidies have recently been struck down by the Court. This effort would share a similar fate.
All in all, Schumer-Van Hollen is a predictable effort to deter speech by disfavored groups. Congress is reduced to attacking foreigners and bailout recipients while hoping that mandated disclosure will discourage speech. The proposal law suggests a comforting conclusion. For most Americans, Citizens United deprived Congress of its broadest and most effective tools of censoring political speech.
Filed under: Government and Politics; Law and Civil Liberties
Obama Small Business Lending Fund Likely A Bust
President Obama has announced his intention to use $30 billion in TARP funds to create a new small business lending fund. In all likelihood, this is $30 billion the taxpayers will never see returned.
First of all, the problem facing small business, outside of the massive uncertainty being created by Washington, is one of credit availability, not cost. For those who can get credit, its quite cheap, arguably too cheap. So if the president doesn’t intend to lower the cost of credit, the plan must be to lower the quality; using the $30 billion to cover expected credit losses. Of course, we tried throwing lots of taxpayer money at unsustainable homeownership, is there any reason to believe throwing taxpayer money at unsustainable businesses is going to work any better?
Using TARP funds for this program is also somewhat disingenuous. This program adds $30 billion to the deficit regardless of whether it’s funded by TARP or by Congressional appropriations. Taking from the TARP only allows the President to keep treating the TARP as his personal slush fund. Nowhere in the TARP legislation can you find language authorizing the use of funds to cover credit losses on new loans. Being a constitutional scholar, the President should know very well that the spending power rests with Congress, not the President. If we are to have a new small business lending program, it should be designed and funded by Congress, not bureaucrats at the Treasury Department.
Historically the two main sources of small business start-up funding have been home equity and credit cards. Clearly the availability of home equity has declined. Sadly as well, with the passing of credit card “reform” the availability of credit card lending has also declined. If the President truly wants to help small business, then the first thing to do is ask Congress to repeal the credit card bill and then just get out of the way.
Tuesday Links
- Obama’s budget and the $1 trillion mistake.
- Justin Logan on the rise of government and central control: “The factor that explains the largest share of the centralism and growth of the American state is war.“
- What we can learn from Hugo Chavez: “The lesson for all of us, north and south of the border, is watch our presidents closely, and check them when they try to slip their constitutional bonds.”
- “Stimulus Means More Meddling in Education” featuring Adam B. Schaeffer.
Can Scott Brown’s Election Stop the Federal Takeover…of Education?
Yesterday, I wrote about President Obama’s proposal to extend the Race to the Top program, this time letting school districts completely bypass state governments and apply directly to the feds for funding. I pointed out that the proposal was one among several troubling signs that Obama intends to put Washington fully — and, of course, unconstitutionally — in charge of American education. At the time, I didn’t realize how right I was.
When I was writing yesterday I was basing my comments on documents from the White House’s website and hadn’t yet read the details of what went on at the President’s photo-op announcing the proposed extension. I sure wish I had: At the dog-and-pony show, the President just came right out and said that he wants to push aside states — mentioned by name was famous holdout Texas — that dared to invoke the Constitution and not participate in a program that was, Constitution or no Constitution, supposed to be voluntary.
“Innovative districts like the one in Texas whose reform efforts are being stymied by state decision-makers will soon have the chance to earn funding to help them pursue those reforms,” intoned the President.
Fortunately, Texas Governor Rick Perry wasn’t about to be cowed: “I will say this very slow so they will understand it in Washington, D.C.: Texas will fight any attempt by the federal government to take over our school system.”
So it’s pretty certain now, more so even than just 24 hours ago: President Obama wants to federalize American education.
Thankfully, a lot can clearly happen in 24 hours. Yesterday’s election of Scott Brown in Massachusetts could very well send shockwaves of fear through the ranks of Democratic (and maybe even Republican) legislators in DC, who might finally get the message that Americans just don’t like federal takovers. Heck, perhaps even the President will get the message. If so, then maybe even something as relatively small as a $1.35-billion scalpel designed to cut through states and get right at districts could be seen as too dangerous to handle.
That’s speculation, of course, but we should know a lot more in just, oh, the next 24 hours.
Filed under: Education and Child Policy; Government and Politics
Tuesday Links
- Gene Healy on today’s election in Massachusetts: “If Republican Scott Brown wins the Massachusetts special election Tuesday, the Bay State will have its first GOP senator since the era when disco was king. And Brown will have the much-derided Tea Party legions to thank.”
- Why opportunistic politicians need to stop using times of crisis for their own ends and let the next one go to waste.
- George W. Obama? “Bush’s successor—who actually taught constitutional law at the University of Chicago—is continuing much of the Bush-Cheney parallel government and, in some cases, is going much further in disregarding our laws and the international treaties we’ve signed.”
- Can Google beat China? Cato’s Timothy B. Lee tackles the question in The New York Times Online.
- Podcast: “Our America Initiative” featuring former New Mexico Governor Gary Johnson. Johnson discusses out of control government spending, immigration, the Bush years, the drug war, defense policy and more.
Weekend Links
- Jeffrey Miron on Obama’s bank fees: “Bailing out the banks was wrong, but a new tax won’t make it right.”
- What Constitution? If Congress can order you to buy health insurance, why stop there?
- Don’t poke the bear: There is a proposal in the Senate Foreign Relations Committee to rearm the country of Georgia.
- Why the tragedy in Haiti cries out for swift action from private donors and yes, governments.
- Podcast: “Obama and Immigration in 2010” featuring Daniel Griswold.
Thursday Links
- The populists have it wrong. Why free trade and globalization are great blessings to Americans and poor families around the world.
- How Obama’s plan for health care will affect medical innovation in America: “Imposing price controls on drugs and treatments–or indirectly forcing their prices down by means of a ‘public option’ or expanded public insurance programs–would reduce the incentive for innovators to develop new treatments.”
- Register now for the upcoming Cato forum featuring author Tim Carney and his new book, Obamanomics: How Barack Obama Is Bankrupting You and Enriching His Wall Street Friends, Corporate Lobbyists, and Union Bosses. Buy the book, here.
- Podcast: “Shoes, Undies and Airplane Security” featuring Jim Harper.
Census Paves the Way for Subsidies
Our bloated government does a lot of things it shouldn’t, but the decennial census is one of the handful of federal activities the Constitution approves of. The census was intended simply to determine the number of seats each state would have in the House of Representatives. Today, census data is plugged into government formulas to determine how more than $400 billion in subsidies from the federal welfare state are allocated to state and local governments.
The impetus to grab federal dollars caused controversy back in December when the National Association of Latino Elected Officials distributed a census promo that read, “This is how Jesus was born…Joseph and Mary participated in the Census.” The group’s website says that, “For each uncounted Latino, more than $11,000 [in federal funding] will be lost over the next decade.” Jesus did get stuck being born in a manger because Joseph and Mary couldn’t find proper shelter, but the Bible doesn’t say that the census led to Bethlehem receiving more affordable housing subsidies from Rome.
I just received a newsletter from the town where I reside. It says that my town was named the best place in the state to raise kids by BusinessWeek, 11th best place in America to move by Forbes, and one of the top 100 best places to live in America according to Relocate America. Sounds like my town’s doing pretty good on its own, but on page six I’m hit with a plea to make sure I participate in the census so the town can grab federal dollars:
When you fill out the census form in April, you’re making a statement about what resources [the town] needs going forward…Accurate data reflecting changes in our community are crucial in deciding how more than $400 billion per year is allocated for projects like hospitals, public works projects, infrastructure improvement, senior centers, schools and emergency services. That’s more than $4 trillion over a ten year period for things like new roads and schools, and services like job training centers.
Not a single item listed by the newsletter is anything the federal government is empowered to fund. There’s no practical or moral reason why my thriving town should receive money from taxpayers in other locals across the country. Nor should taxpayers in my town be forced to send a portion of their paycheck to Washington so politicians can play Santa Claus to their parochial interests. As such, the pork politics surrounding the census is another reminder that a return to fiscal federalism is desperately needed.
Weekend Links
- How to manufacture a climate consensus: “The East Anglia emails are just the tip of the iceberg.”
- Forecast for Copenhagen: “Cloudy with a chance of nothing.”
- A tale of how far modern “constitutional law” has taken us toward the executive state.
- How the president’s policies are holding back the economy: “Right now, the best thing Washington can do for our economy is to simply stop what it has been doing.”
- Podcast: “Liberty, Tradition and Values“
Obama’s Copenhagen Speech
Politico asks, “Was he convincing?”
My response:
In Copenhagen this morning, President Obama convinced only those who want to believe — of which, regrettably, there is no shortage. Notice how he began, utterly without doubt: “You would not be here unless you, like me, were convinced that this danger is real. This is not fiction, this is science.” The implicit certitude is no part of real science, of course. But then the president, like the environmental zealots cheering him in Copenhagen, is not really interested in real science. Theirs, ultimately, is a political agenda. How else to explain the corruption of science that the East Anglia Climate Research email scandal has brought to light, and the efforts, presently, to dismiss the scandal as having no bearing on the evidence of climate change? If that were so, then why these efforts, or the earlier suppression of contrary or mitigating evidence that is the heart of the scandal?
We find such an effort in this morning’s Washington Post, by one of those at the center of the scandal, Penn State’s Professor Michael E. Mann. Set aside his opening gambit — “I cannot condone some things that colleagues of mine wrote or requested” — this author of the famous, now infamous, “hockey stick” article seems not to recognize himself in Climategate. That he then goes after Sarah Palin as his critic suggests only that on a witness stand, confronted by his real critics, he’d be reduced to tears by even a mediocre lawyer. One such real critic is my colleague, climatologist Patrick J. Michaels, who documents the scandal and its implications for science in exquisite detail in this morning’s Wall Street Journal.
But to return to the president and his speech, having uncritically subscribed to the science of global warming, Mr. Obama then lays out an ambitious policy agenda for the nation. We will meet our responsibility, he says, by phasing out fossil fuel subsidies (which pale in comparison to the renewable energy subsidies that alone make them economically feasible), we will put our people to work increasing efficiency in our homes and buildings, and we will pursue “comprehensive legislation to transform to a clean energy economy.”
Mark that word “legislation,” because at the end of his speech the president said: ”America has made our choice. We have charted our course, we have made our commitments, and we will do what we say.” But we haven’t made “our choice” — cap and trade, to take just one example, has gone nowhere in the Senate — even if Obama has made “our commitments.” And that brings us to a fundamental question: Can the president, with no input from a recalcitrant Congress, commit the nation to the radical economic conversion he promises?
Environmental zealots say he can. Look at the report released last week by the Climate Law Institute’s Center for Biological Diversity, “Yes He Can: President Obama’s Power to Make an International Climate Commitment Without Waiting for Congress,” which argues that in Copenhagen Obama has all the power he needs under current law, quite apart from the will of Congress or the American people, to make a legally binding international commitment. Unfortunately, under current law, the report is right. I discuss that report and the larger constitutional implications of the modern “executive state” in this morning’s National Review Online.
There is enough ambiguity in the president’s remarks this morning to suggest that he may not be prepared to exercise the full measure of his powers. But there is also enough in play to suggest that it is not only the corruption of science but the corruption of our Constitution that is at stake.
Filed under: Energy and Environment; Law and Civil Liberties
Tuesday Links
- Whether you’re insured, uninsured, get health insurance on your own or through an employer, own a small business or work for someone else, this is what the health care bill means for you.
- An update on the hidden taxes in the health care bill.
- Why Obama should order the DEA to make more pot available for medical research.
- The U.S. Constitution mentions only three federal crimes (treason, piracy, and counterfeiting). Today, there are more than 4,000.
- Podcast: “Myths of Health Care Reform.”
Weekend Links
- Health care insurance mandates: Why it is unconstitutional for the government to force you to purchase a product you don’t want to buy.
- Should malpractice reform be included in the pending health care bill?
- The end of globalization? Cato’s trade policy expert Daniel Griswold debates.
- Doug Bandow on the minaret ban in Switzerland: “Swiss voters underestimated the impact on religious liberty when they voted to ban minaret construction. But Muslims whose nations persecute Christians, Jews, and other religious minorities have no standing to complain. The Islamic world needs to respect religious liberty at home before lecturing the West about intolerance, racism, hatred and Islamophobia.”
- More debate over Hayek and spontaneous order at Cato Unbound.
- Podcast: “Obama’s nation-building in Afghanistan“
Keeping Pandora’s Box Sealed
In today’s Washington Times, Ken Klukowski and Ken Blackwell co-authored an op-ed about McDonald v. Chicago and the Privileges or Immunities Clause titled, “A gun case or Pandora’s box?”
If that title sounds familiar, it should. Josh Blackman and I have co-authored a forthcoming article called “Opening Pandora’s Box? Privileges or Immunities, The Constitution in 2020, and Properly Incorporating the Second Amendment.“ As Josh put it in his reply to the Kens, “imitation is the most sincere form of flattery.”
Going beyond the title, there are several errors in the piece, which I will briefly recap:
First, the Kens argue that the Supreme Court should uphold the Slaughter-House Cases, out of a fear that reversal — and thereby a reinvigoration of Privileges or Immunities — would empower judges to strike down state and local laws. What they neglect to mention is that it has been the role of the judiciary since Marbury v. Madison to strike down laws that violate the Constitution. There is near-universal agreement across the political spectrum that Slaughter-House was wrongly decided, causing the Supreme Court to abdicate its constitutional duty by ignoring the Privileges or Immunities Clause for 125 years. The Kens want to continue this mistaken jurisprudence.
Next, the Kens describe the Privileges or Immunities Clause as a general license for courts to strike down any law they do not like. This is not accurate. Neither the Privileges or Immunities Clause nor any other part of the Fourteenth Amendment empowers judges to impose their policy views. Instead, “privileges or immunities” was a term of art in 1868 (the year the Fourteenth Amendment was ratified) referring to a specific set of common law, pre-existing rights, including the right to keep and bear arms. The Privileges or Immunities Clause is thus no more a blank check for judges to impose their will than the Due Process Clause — the exact vehicle the Kens would use to “incorporate” the Second Amendment.
To set the record straight, Josh and I are working on an op-ed — not so much to respond to the Kens’ flawed analysis but to present the correct historical and textual view of the Privileges or Immunities Clause. To see our arguments in greater detail, read our article and Cato’s McDonald brief, both of which I’ve previously blogged about here , here, and here.
Cato on Facebook
Cato on Twitter
Cato on YouTube
Cato Tweets