Presidents Should Obey the Law
In Star Wars III: Revenge of the Sith, when Chancellor Palpatine transforms the republic into an empire, Senator Amidala remarks:
So this is how liberty dies . . . with thunderous applause.
But it can also happen in silent acquiescence. For decades now, successive Congresses have evaded their responsibility to make decisions about the deployment of U.S. armed forces abroad. I write about the latest instance of this, in Libya, in today’s Britannica column:
Presidents have an obligation to obey the Constitution and the law. But one of the ways that separation of powers works is that each branch of government is supposed to jealously guard its prerogatives from usurpation by the other branches. Too often Congress ducks that responsibility, preferring to let presidents make decisions, make law, and make war without the involvement of Congress. As Arthur M. Schlesinger, Jr., explained in his book The Imperial Presidency, the expansion of presidential war-making power has been “as much a matter of congressional abdication as of presidential usurpation.”
The president is derelict in his duty to obey the Constitution and the War Powers Resolution. And Congress is derelict in its duty to assert its constitutional authority. And I’m still wondering what’s happened to the antiwar movement, which ought to be loudly protesting not just the continuing wars in Iraq and Afghanistan but the newborn war in Libya.
As George Will said last week, “even if you think the War Powers Resolution is an unwise law—it is a law.” And a former law professor who is now the president of the United States should obey the law. Will expanded on that point in his Sunday column, titled “Obama’s Illegal War,” in the old-fashioned print edition of the Washington Post.
Full Britannica column here.
Support for the Eternal Federal Welfare State Is Bipartisan
George Will makes a good point in his latest column: Democrats maintain a peculiar “conviction that whatever government programs exist should forever exist because they always have existed.” Will’s observation centers around the shameless Democratic attacks on Rep. Paul Ryan’s (R-WI) proposal to reform Medicare and Medicaid.
According to Will, “Ryan’s plan would alter Medicare. But Medicare has existed in its current configuration for only 46 of the nation’s 235 years.” Actually, “current configuration” isn’t quite accurate. For example, Medicare’s prescription drug component added by Republicans, which Ryan voted for, went into effect only five years ago.
Regardless, I agree with Will that so-called “progressives” have a “constricted notion of the possibilities of progress”:
The hysteria and hyperbole about Ryan’s plan arise, in part, from a poverty of today’s liberal imagination, an inability to think beyond the straight-line continuation of programs from the second and third quarters of the last century. It is odd that “progressives,” as liberals now wish to be called, have such a constricted notion of the possibilities of progress.
Yes, Ryan’s plan displays “imagination” and I would add that it took political guts to suggest the reforms knowing that the left would nail him to the cross. However, let’s not forget that Ryan’s plan would also further cement these twin pillars of the federal welfare state. For all the silly accusations that Ryan is proposing to “privatize” Medicare, his plan repeatedly states that his aim is to “save” it:
Letting government break its promises to current seniors and to future generations is unacceptable. The reforms outlined in this budget protect and preserve Medicare for those in and near retirement, while saving and strengthening this critical program so that future generations can count on it to be there when they retire.
I wasn’t born yesterday, so I understand Ryan’s assurance to “those in and near retirement” that Medicare as they know it won’t be touched. However, I can’t square Ryan’s reference at the outset of his plan to the “timeless principles of American government enshrined in the U.S. Constitution – liberty, limited government, and equality under the rule of law” with his intention to strengthen “this critical program so that future generations can count on it be there when they retire.”
Now that Ryan’s plan has taken its inevitable beating from demagoguing Democrats, the GOP appears to be upping the “save Medicare for future generations” rhetoric.
Here’s tea party favorite Sen. Marco Rubio (R-FL) as reported by Politico:
‘I understand the benefits that Medicare brings to America. It should be a part of our country,’ Rubio added. ‘I want Medicare to exist in a way that is unchanged for people that are in Medicare now. I want Medicare to exist when I retire. I want Medicare to exist when my children retire. And I don’t want Medicare to bankrupt itself for our country. And Medicare, as it’s currently structured, will go bankrupt.’
If that’s what Rubio, Ryan, and the rest of the congressional Republicans desire, then thank you for being honest. But please stop wrapping the intention to maintain for eternity a gigantic federal welfare state in the mantle of individual liberty, limited government, and the Constitution.
George Will on Libya
President Obama’s incomprehensible “kinetic military action” in Libya has driven George Will to distraction, and to mordant wit:
At about this point in foreign policy misadventures, the usual question is: What is Plan B? Today’s question is: What was Plan A?
Not to mention literary allusion:
Perhaps the CIA operatives should have stayed home and talked to some senators who seem to know what’s what. Sen. John Kerry (D-Mass.) refers to the Libyan rebels as part of a “pro-democracy movement.” Perhaps they are. Sen. Lindsey Graham (R-S.C.) must think so. Serving, as usual, as Sancho Panza to Sen. John McCain’s Don Quixote, Graham said last Sunday (on “Face the Nation”), “We should be taking the fight to Tripoli.”
George Will on Rand Paul
George Will, whose speech at the Milton Friedman Prize for Advancing Liberty Dinner can be heard here, writes today about Rand Paul’s victory in Kentucky:
Democrats and, not amazingly, many commentators say Republicans are the ones with the worries because they are nominating strange and extreme candidates. Their Exhibit A is Rand Paul, winner of Kentucky’s Republican primary for the U.S. Senate.
Well. It may seem strange for a Republican to have opposed, as Paul did, the invasion of Iraq. But in the eighth year of that war, many Kentuckians may think he was strangely prescient. To some it may seem extreme to say, as Paul does, that although the invasion of Afghanistan was proper, our current mission there is “murky.” But many Kentuckians may think this is an extreme understatement.
These critical commentators range from David Frum and Commentary to the Huffington Post — the entire spectrum of the welfare-warfare state. But as Will says, Paul’s opposition to the Iraq war is shared by 60 percent of Americans. And plenty of mud was thrown at Paul by his Republican opponents, and Republican voters had this reply:
(H/T: DailyPaul.com)
Will also notes the surprising support for Rep. Ron Paul’s book End the Fed from Arlo Guthrie, whose anti-bailout song “I’m Changing My Name to Fannie Mae, was celebrated here.
The Ninth Circuit as a Denial of Service Attack on American Justice
The Supreme Court is expected to decide tomorrow whether to summarily overturn a Ninth Circuit Court ruling, hear an appeal of that ruling, or let the Ninth Circuit’s decision stand. The case involves Arizona’s k-12 scholarship tax credit program that helps families afford private schooling, which the Ninth Circuit found last year to violate the First Amendment.
Before the Ninth Circuit handed down its decision, I predicted that it would rule against the tax credit program, and that it would eventually be overturned by the Supreme Court. The first part of that prediction came to pass, and I still expect the second part to as well. For the reasons why SCOTUS will overturn the Ninth Circuit, see Cato’s brief in the case.
Ilya Shapiro (with whom I co-wrote that brief) draws attention today to a great column by George Will in which Will likens the Ninth Circuit to a “stimulus package” for the Supreme Court. It’s a funny analogy, but it’s too benign. It’s more accurate to see the Ninth Circuit as a Denial of Service Attack on American justice. A D.O.S. is a computer attack that prevents Internet surfers from accessing a particular website/server by flooding it with spurious requests. By failing to take Supreme Court precedents seriously, as the Ninth Circuit routinely does, it creates a torrent of ridiculous rulings that demand the Supreme Court’s attention, thereby preventing the nation’s highest court from taking other important cases.
If there is a way for SCOTUS to reprimand the Ninth Circuit for spuriously consuming the nation’s most important legal resources, it would be in the interest of justice for it to do so.
Supreme Court Should Call Out Ninth Circuit in Education Case
Friend-of-Cato and 2010 Milton Friedman Prize Dinner keynote speaker George Will published an excellent column today about a case under review at the Supreme Court, Arizona Christian School Tuition Organization v. Winn:
The case concerns an Arizona school choice program that has been serving low- and middle-income families for 13 years. The state grants a tax credit to individuals who donate to nonprofit entities that award scholarships for children to attend private schools — including religious schools. Yes, here we go again.
The question — if a question that has been redundantly answered remains a real question — is whether this violates the First Amendment proscription of any measure amounting to government “establishment of religion.” The incorrigible 9th Circuit has declared Arizona’s program unconstitutional, even though there is no government involvement in any parent’s decision to use a scholarship at a religious school.
If this case hadn’t originated in a state within the Ninth Circuit’s jurisdiction, nobody would have heard about it because any other federal appellate court would probably have decided it correctly. Will correctly and convincingly argues for summary reversal — as our friends at the Institute for Justice, who represent the petitioners, request — because the Ninth Circuit’s decision ignores clear Supreme Court precedent allowing parents to choose how to direct state funds for their children’s education (to a sectarian school or otherwise):
So, [Chief Justice William] Rehnquist wrote [in 2002], public money “reaches religious schools only as a result of the genuine and independent choices of private individuals.” Therefore any “advancement of a religious mission” is merely “incidental” and confers “no imprimatur of state approval . . . on any particular religion, or on religion generally.” These standards had been developed in various prior cases.
Cato filed a brief in this case that I previously blogged about. And you can listen to Will’s Friedman Dinner address here. (Unrelatedly, if you still haven’t read his masterful Men at Work: The Craft of Baseball – which has sold many more copies than any of his political books — pick up the re-issued twentieth anniversary edition.)
To ‘Control the Border,’ First Reform Immigration Law
The latest catch phrase in the immigration debate is that we must “get control of our borders” before we consider actually changing the current immigration law that has made enforcement so difficult in the first place.
In his Washington Post column yesterday, George Will wrote that “the government’s refusal to control [the U.S.-Mexican] border is why there are an estimated 460,000 illegal immigrants in Arizona and why the nation, sensibly insisting on first things first, resists ‘comprehensive’ immigration reform.”
On the other side of the political spectrum, Democrats in Congress this week unveiled the outlines of an immigration bill that would postpone any broader reforms, such as a new worker visa program or legalization of workers already here, until a series of border security “benchmarks” have been met.
Requiring successful enforcement of the current immigration laws before they can be changed is a non sequitur. It’s like saying, in 1932, that we can’t repeal the nationwide prohibition on alcohol consumption until we’ve drastically reduced the number of moonshine stills and bootleggers. But Prohibition itself created the conditions for the rise of those underground enterprises, and the repeal of Prohibition was necessary before the government could “get control” of its unintended consequences.
Illegal immigration is the Prohibition debate of our day. By essentially barring the legal entry of low-skilled immigrant workers, our own government has created the conditions for an underground labor market, complete with smuggling and day-labor operations. As long as the government maintains this prohibition, illegal immigration will be widespread, and the cost of reducing it, in tax dollars and compromised civil liberties, will be enormous.
We know from experience that expanding opportunities for legal immigration can dramatically reduce incentives for illegal immigration. In the 1950s, the federal government faced widespread illegal immigration across the Mexican border. In response, the government simultaneously beefed up enforcement while greatly expanding the number of workers allowed in the country through the Bracero guest-worker program. The result: Apprehensions at the border dropped by 95 percent. (For documentation, see this excellent 2003 paper by Stuart Anderson, a Cato adjunct scholar and executive director of the National Foundation for American Policy.)
If we want to “get control” of our border with Mexico, the smartest thing we could do would be to allow more workers to enter the United States legally under the umbrella of comprehensive immigration reform. Then we could focus our enforcement resources on a much smaller number of people who for whatever reason are still operating outside the law.
George Will on Judicial Activism
George Will offers conservatives a useful reminder about “judicial activism” and what the Supreme Court ought to be doing:
Conservatives spoiling for a fight should watch their language. The recent decision most dismaying to them was Kelo (2005), wherein the court upheld the constitutionality of a city government using its eminent domain power to seize property for the spurious “public use” of transferring it to wealthier interests who will pay higher taxes to the seizing government. Conservatives wish the court had been less deferential to elected local governments. (Stevens later expressed regret for his part in the Kelo ruling.)
The recent decision most pleasing to conservatives was this year’s Citizens United, wherein the court overturned part of the McCain-Feingold campaign finance law. The four liberal justices deplored the conservatives’ refusal to defer to Congress’s expertise in regulating political speech.
So conservatives should rethink their rhetoric about “judicial activism.” The proper question is: Will the nominee be actively enough engaged in protecting liberty from depredations perpetrated by popular sovereignty?
George Will and Drug Decriminalization
George Will’s latest column takes a look a drug policy and the views of the new drug czar, Gil Kerlikowski. Notably, Will mentions Portugal’s experience with decriminalization of all drugs since 2001 and says Kerlikowski is aware of the Portuguese policy as well. Cato published a report on Portugal’s drug policy in April and the author, Glenn Greenwald, discussed his findings at a Cato policy forum here. George Will’s shifting views on drug policy (toward liberalization) reflect the shifting views of other conservative pundits and the public more generally.
Will appeared on ABC on Sunday, and discussed his views on drug policy. Watch:
Curbing Free Trade to Save It
In the latest example of “We had to burn the village to save it” logic, Sen. Sherrod Brown (D-OH) argues in a letter in the Washington Post this morning that the way to “support more trade” in the future is to raise barriers to trade today.
Brown criticizes Post columnist George Will for criticizing President Obama for imposing new tariffs on imported tires from China. Like President Obama himself, Brown claims that by invoking the Section 421 safeguard, the president was merely “enforcing” the trade laws that China agreed to but has failed to follow. He scolds advocates of trade for talking about the “rule of law” but failing to enforce it when it comes to trade agreements. Brown concludes, “If America is ever to support more trade, its people need to know that the rules will be enforced. And Mr. Obama did exactly that.”
Nothing in U.S. trade law required President Obama to impose tariffs on imported Chinese tires. As my colleague Dan Ikenson explained in a recent Free Trade Bulletin, Section 421 allows private parties to petition the U.S. government for protection if rising imports from China have caused or just threaten to cause “market disruption” to domestic producers. If the U.S. International Trade Commission recommends tariff relief, the president can decide to impose tariffs, or not.
The law allows the president to refrain from imposing tariffs if he finds they are “not in the national economic interest of the United States or … would cause serious harm to the national security of the United States.”
As I argue at length in my new Cato book Mad about Trade, trade barriers invariably damage our national economic interests and weaken our national security, and the tire tariffs are no exception. If the president had followed the letter and spirit of the law, he would have rejected the tariff.
And since when is causing “market disruption” something to be punished by law? Isn’t that what capitalism and market competition are all about? New competitors and new products are constantly disrupting markets, to the discomfort of entrenched producers but to the great benefit of the general public and the economy as a whole.
Human beings once widely practiced an economic system that minimized market disruption. It was called feudalism.
C/P Mad About Trade
David Brooks Is Confused about Counterinsurgency
Would you buy a state-building mission from this man?
Today David Brooks (in the role of Teddy Roosevelt) debates George Will (as Edmund Burke) on the subject of Afghanistan without citing him. This debate marks a high point of conservative politics where neoconservative ideology appears in concrete clarity.
First, Brooks makes clear that he is not interested in merely managing the problem of terrorism, but rather in “prevailing” in the war in Afghanistan. He argues that “only the full counterinsurgency doctrine offers a chance of success,” but then proceeds to absurdly define population-centric counterinsurgency doctrine as one in which “small groups of American men and women are outside the wire in dangerous places in remote valleys, providing security, gathering intelligence, helping to establish courts and building schools and roads.”
Either Brooks is being cute here or demonstrating his ignorance. With one word — “small” — Brooks has utterly mischaracterized what counterinsurgency is all about.
Population-centric counterinsurgency is all about large numbers of American men and women, not small numbers. The promoters of COIN in Afghanistan have recently taken to including the Afghan National Army in the count of counterinsurgents, but the textbook — and as a result, obviously oversimplified — number of counterinsurgents you’d want in a place with a population, dysfunctional national government, and geography like Afghanistan pushes well up to around half a million. It is an extraordinarily resource- and labor-intensive endeavor. If you don’t believe me, perhaps you’ll take David Petraeus or David Kilcullen as authorities on the matter.
Brooks pushes his argument further, declaring that we possess only two choices in Afghanistan: “surrender the place to the Taliban or do armed nation-building.” One paragraph later, Brooks writes of the fight against terrorism that “we shouldn’t pretend we understand how this conflict will evolve.” That Brooks does not recognize the conflict between these views is telling. See Rory Stewart for more on the swashbuckling certainty like what Brooks is displaying.
The Tire Tariff and the Invertebrate President: A Fable
Anyone still inclined to minimize the meaning of President Obama’s Chinese tire tariff decision should read George Will’s column today.
It is not only the direct costs of this particular decision, which are numerous and tallied in the article (and in this paper), that should concern us. Will’s bigger concern is the foreshadowing of more protectionism from a president who has proven to have no qualms about looking straight into other people’s eyes and claiming that his administration opposes protectionism, favors free trade, and is working to advance pending trade agreements through Congress, all while remaining “invertebrate as he invariably is when organized labor barks.”
Is this a sign of schizophrenia? No, it’s worse. What we have here is a president who views trade policy as nothing more than a tool to advance his own political standing with groups that are hostile to commerce. Since groups on the left have grown disenchanted that some of the most socialist elements of the health care debate might be left on the cutting room floor, why not try to placate them with anti-business, anti-consumer, anti-globalization protectionism? Will makes the link between tire tariffs and the health care debate in his concluding sentence.
A president who fancies himself economically enlightened and internationalist would treat trade policy as a means to promoting economic growth and sound foreign relations. This president, regrettably, views trade policy as a sacrificial pawn in the service of politics as usual.
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