For the better part of a year, I have been urging states to refuse to implement ObamaCare, and to send any ObamaCare grants back to Washington, D.C.. In October, I was pleased to see the Heritage Foundation’s Ed Haislmaier call on states to do the same.

Late yesterday, Wisconsin Gov. Scott Walker (R) became the latest governor to heed that advice. Walker announced Wisconsin will return the $37 million “Early Innovator Grant” it received from the Obama administration under the health care law.

Wisconsin never should have accepted that money. Its purpose was to rope state officials into implementing a law that Walker himself described as “unprecedented,” “unconstitutional,” and jeopardizing “the foundational principle, enshrined in our Constitution, that the federal government is one of limited and enumerated powers.” Yet Walker accepted the Early Innovator Grant after Wisconsin joined the Florida v. HHS lawsuit, and after a federal district court declared the entire law unconstitutional and void.

Nevertheless, Walker did the right thing by joining the other two GOP governors who received Early Innovator Grants—Kansas Gov. Sam Brownback and Oklahoma Gov. Mary Fallin—in sending the money back. Walker’s move probably took no small amount of political courage, given how hard the health insurance industry and other ObamaCare profiteers—including prominent Republicans—have been lobbying states like Wisconsin to create an Exchange.

Kudos.

Wisconsin Stiff-Arms ObamaCare is a post from Cato @ Liberty - Cato Institute Blog

The Washington Examiner ran this Heritage Foundation chart on January 10 under the title (not online) “Defense spending at lowest levels in 60 years”:

Dramatic, eh? It shows defense spending plunging for the past 40 or more years. Except . . . wait a minute . . . has defense spending plunged? This chart from the Cato Institute’s Downsizing Government project sheds some light:

In fact, Pentagon spending in real, inflation-adjusted dollars has roughly doubled since 2000 and is up about 50 percent since 1970, at the height of the Vietnam War. (And note that the recent figures don’t include the cost of the ongoing wars.) So what’s going on? Why the difference in the charts? The Heritage chart, of course, focuses on Pentagon spending as a percentage of the federal budget. And what has happened to the federal budget in the past 40 years? Well, as it happens, another Heritage Foundation chart shows that pretty clearly:

Obviously, the big story in the federal budget over the past 40 years is the dramatic rise in spending on transfer payments. Does the Heritage Foundation really want to suggest that when spending on Social Security, Medicare, and Medicaid rises, military spending should rise commensurately? That when President Bush creates a trillion-dollar Medicare prescription drug entitlement, he should also add a trillion dollars to the Pentagon budget to keep “Defense Spending as a Percentage of the Federal Budget” at its previous level?

Cato and Heritage scholars have often differed on U.S. foreign policy and the defense budget that it implies. But surely neither group would actually suggest that U.S. national security should be measured by the relationship of military spending to entitlement spending. Surely we would agree that military spending must be sufficient to ensure U.S. security and not tied to some extraneous factor. So I invite the creators and promoters of the above chart to explain exactly what they think it proves.

By the way, Heritage’s Rob Bluey, in introducing this chart, writes, “The chart also debunks the myth that our Founding Fathers were isolationists.” But again context matters. I’ll leave the debate over foreign policy in the early Republic to another day. But if total federal spending in 1820 was $19.4 million, and 53 percent of it was for defense, what that tells us is that the federal government was wonderfully small in the early years of the Republic. I’m pretty sure that $10 million military budget didn’t pay for two wars, troops in 150 countries, or a million-man standing army.

Misleading Images on Defense Spending is a post from Cato @ Liberty - Cato Institute Blog

Back in March, Heritage Foundation scholar Ed Haislmaier wrote that states could blunt ObamaCare’s impact (A) by creating non-ObamaCare compliant, “consumer-centered” Exchanges and/or (B) by creating ObamaCare-compliant, “defensive” health insurance Exchanges.  Many states, including some that are suing to overturn ObamaCare as unconstitutional, saw this as a green-light from the free-market groups and forged ahead with creating an ObamaCare-compliant Exchange.

In a blog post last week, Haislmaier recanted on Strategy B.  He writes that “defensive” Exchanges won’t blunt the impact after all, and that states should refuse to create any type of ObamaCare-compliant Exchange and send back all federal ObamaCare grants:

Initially, while HHS was still deciding how to implement the legislation, a narrow window of opportunity existed for states to pursue a “pushback” strategy of creating a restricted exchange and requiring it to contract with the state’s Medicaid program and insurance department to perform the eligibility, enrollment, and insurance regulation functions that state lawmakers seek to retain control of. HHS effectively closed that window in its proposed exchange regulations issued in July…

The combined effect of these regulations and grant requirements are that a state would have to agree to surrender any last vestiges of meaningful control over how Obamacare is implemented. Thus, a state would now have no more real control over an exchange it set up than over one HHS established…

Consequently, at this point the best course of action for states is to neither apply for nor accept exchange establishment grant funding.

Free-market groups are now united on these points.

Haislmaier still recommends that states pursue  Strategy A: a “consumer-centered,” non-ObamaCare Exchange using only state-government dollars.  As I explain here, however, there is no such thing as a non-ObamaCare Exchange.  Insurance carriers will not patronize non-ObamaCare Exchanges, and the federal government will commandeer them or push them aside to create an ObamaCare Exchange.  Creating any type of Exchange merely lends manpower to ObamaCare’s federal takeover of health care.  States should refuse.

Heritage Scholar Urges States: Don’t Implement ObamaCare Exchanges, Send Back Grants is a post from Cato @ Liberty - Cato Institute Blog

Steve Chapman on sex offender registries:

Most convicted sex offenders do not go on to be arrested for new sex offenses, and more than 90 percent of child victims are assaulted not by strangers but by relatives or other people they know.

Sex offender registries may cause parents to focus on the remote peril while ignoring the more pertinent one. And, as in the examples cited earlier, they can inflict harsh punishment that departs from common sense and does nothing for public safety.

Shielding citizens from vicious predators is unquestionably one of the central functions of any sound government. Megan’s Laws were enacted in the sensible pursuit of that goal. What they offer in practice, though, is counterfeit comfort.

Read the whole thing.  Lenore Skenazy has more thoughts about this here.

The Heritage Foundation is not only making the case for registries, but is making the case for federal intervention in this area.   Wrong.  Like education, crime-fighting is a subject the feds should stay out of.  See the Tenth Amendment (pdf).

‘Counterfeit Comfort’ is a post from Cato @ Liberty - Cato Institute Blog

Last week I expressed my disappointment with Paul Ryan’s budget plan, specifically about his unwillingness to cut military spending. Some people think that he does cut spending through his acceptance of Secretary Gates’s $78 in “cuts.” (see, for example, Sen. John Sununu; Sen. Joseph Lieberman, AEI’s Gary Schmitt and Tom Donnelly; and the Heritage Foundation’s Baker Spring).

So either I am wrong, or they are. Let me try to set the record straight.

First, all of Ryan’s other savings — savings which I support — were projected either against the Obama administration’s FY 2012 budget or against the current budget baseline. For example, according to Ryan’s own “Key Facts” his plan “Cuts $6.2 trillion in government spending over the next decade compared to the President’s budget, and $5.8 trillion relative to the current-policy baseline.” With respect to military spending, however, Ryan’s plan basically follows the Obama/Gates budget, proposing to spend a staggering $670.9 billion in FY 2012. The Obama administration’s DoD budget request for FY 2012 — including the Pentagon’s base budget plus overseas contingency operations (OCO) — totals $670.9 billion as well.  Of course, that total leaves out national defense spending tucked away in other departments (including nuclear weapons spending in the Department of Energy). Total national defense spending in FY 2012 will top $700 billion. I stand by my earlier assertion that the Pentagon’s budget escapes from Ryan’s budget axe “essentially unscathed.”

Ryan and others claim that military spending has already been cut, hence the decision to embrace this portion of the president’s budget. Sen. Lieberman explained to Bloomberg news, “To a certain extent, Secretary Gates has enabled us at least temporarily to take defense off the table because he has initiated his own round of defense cuts.”

“To a certain extent” is doing a lot of work in that statement. In fact, Gates and Obama do not cut military spending.

First, they don’t claim to do so. These supposed cuts are only “cuts” in Washington-speak. The Pentagon’s base budget under both the Ryan and Obama plans will increase 1 percent in real, inflation-adjusted terms. See the table below, recreated by my colleague Charles Zakaib from the official DoD budget request.

Second, Ryan claims that Gates’s “exhaustive review of the Pentagon’s budget” identified $178 billion in savings. It does nothing of the sort. By Ryan’s own admission, taxpayers will see only $78 billion of these; the other $100 billion are to be “reinvested” elsewhere in the Pentagon. (They’re always “investments” when you’re spending the taxpayers’ money, even when Republicans do it.)

So we’re really talking about $78 billion toward deficit reduction over the next five years, or approximately 2.6 percent of the Pentagon’s base budget (excluding the wars) over that same period. With all due respect, that isn’t a bold plan for reducing the crushing burden of spending and debt; that’s a rounding error.

What’s more, it is highly unlikely that these savings will materialize. Many of these efficiencies involve consolidation of commands — something that Congress has already balked at — and unspecified savings that are relatively easy to identify, but extremely difficult to implement.

But if, by some miracle, Robert Gates’s successor(s) manage to get them passed by Congress, those savings won’t actually be dedicated to deficit reduction: they will be completely devoured by spending on the wars. This is the greatest sham of all. Charles Knight at the Project on Defense Alternatives (and a key contributor to the Sustainable Defense Task Force, of which I was also a member) explains:

For several years now White House budget projections have included a “placeholder for outyear overseas contingency operations” most of which are accounted for by the wars in Iraq and Afghanistan. This placeholder number has been and remains $50 billion. Every year actual OCO (overseas contingency operations) spending turns out to be several times that number. FY11′s OCO is $159 billion and FY12′s is $118 billion.

Adjusting for the effect of the new OCO for FY12, the $68 billion budgeted above the placeholder of $50 billion eats up most of the $78 billion in Pentagon cuts that Secretary Gates offered up in January to fiscal responsibility….The remaining $8 billion (and much more) will go to the war budgets when reality collides with placeholder projections.

On 14 February Pentagon Comptroller Hale confirmed that the $50 billion placeholders for FY13 and beyond was the “best we can do.” Others make an attempt to be more realistic. The high tech industry association called Tech America annually projects DoD budgets for ten years out. In their 2010 projection they estimate that OCO spending will be $102 billion in FY13, $69 billion in FY14 and $57 billion in FY15. When we subtract the $50 billion placeholder for each of those years and total the remainder we find that the Pentagon is likely to spend $78 billion more in the years FY13 through FY15 than in the White House budget projections.

I hope that I’m proved wrong. I hope that the wars in Iraq and Afghanistan are brought to a close. I hope that the Congress gets serious about tackling Pentagon waste, and stops treating the military budget as an elaborate jobs program. I hope that our brave men and women in uniform get the hardware, equipment, and training that they need, and that Americans get the “defense budget” that they deserve. But if past history is any guide, the Pentagon’s budget will continue to climb, other countries around the world will continue to free ride on Uncle Sam’s largesse, and U.S. taxpayers will be left to foot the bill.

No, Paul Ryan Really Doesn’t Cut Pentagon Spending is a post from Cato @ Liberty - Cato Institute Blog

If you wonder why House Republicans were so keen on ramming through an extension of the Patriot Act without hearings or debate, take a gander at the Heritage Foundation’s blog post and Web memo on the topic. I want to run through the latter in some detail, because I think it’s telling just how poorly the case against reform stands up to scrutiny in the rare instances when the law’s defenders feel obliged to make an argument more sustained than “Boo! Terrorists!” 

Here’s how they begin:

With at least 36 known plots foiled since 9/11, the United States continues to face a serious threat of terrorism. As such, national security investigators continue to need these authorities to track down terror leads and dismantle plots before the public is in any danger. These three amendments—which have been extensively modified over the years by Congress and now include significant new safeguards, including substantial court oversight—are vital to this success.

I’ve debated co-author Jena McNeil Baker on Patriot a few times, and she invariably leads off with a running tally of foiled terror plots. I’m not sure exactly which cases make her current list, but in the past she’s cited yahoos like the Lackawanna Six, who don’t appear to have had any actual plot to dismantle, and since our last exchange the FBI has augmented the count via its innovative strategy of planning terror attacks for itself to foil.

But let’s all agree the terror threat is real and serious even without this sort of inflation. What evidence do the authors have that any of the three expiring authorities were “vital” in any of those cases? There just isn’t any. Even if it were true, the authors would have no basis in the public record for the assertion. The evidence we do have, however, suggests just the opposite. Lone Wolf has never been used, so it certainly wasn’t vital. FISA roving authority has been granted an average of 22 times per year since Patriot, and in many of those cases, investigators found they didn’t end up needing to use it. And none of the reports I can recall reading on apprehended wannabe-terrorists suggested that they were practicing sophisticated countersurveillance tactics. The Office of the Inspector General couldn’t find any major case developments attributable to 215 business record orders, which also don’t seem to be used that frequently.

If one of the sunsetting powers had played an important role in disrupting a concrete plot or attack, though, you’d think Justice Department officials would have every incentive to say so loudly and unambiguously, even if they couldn’t get into operational specifics. While these facts are suggestive, of course, I can’t say with certainty that the two powers that have actually been used definitely didn’t play a vital role in any of those (let’s be generous) 36 cases. It would be more convenient if I could say so, but I’m at something of a disadvantage here: In the absence of evidence, I lack the panache needed to make whatever sweeping assertions would help my position. I can only say that all the evidence we do have cuts against that bold claim.

We move to roving wiretaps, which we’re told are a “garden variety” surveillance tool used “routinely” in criminal investigations. The authors seem to be operating with highly idiosyncratic definitions of those terms: In 2009, there were 2,376 wiretap warrants issued for criminal investigations, of which 16 were roving. But routine or not, pretty much everyone in fact agrees that roving authority should be available for intelligence investigations. Astonishingly, the Heritage memo never even mentions the actual issue civil libertarians have with this provision: that unlike the parallel criminal authority, it permits roving warrants that don’t name an individual target. So the authors spend five paragraphs mounting an irrelevant defense of a power nobody contests in principle, but never informs their readers about the real point of controversy, let alone argue for the asymmetry.

Next, business record orders. The blog post summarizing the Web memo confusingly claims that there was no FISA authority to compel the production of records before Patriot, which isn’t true. There just had to be some factual basis (not even “probable cause”) for thinking the records belonged to a terrorist or foreign agent. Oddly, while the Heritage memo does reference Patriot’s expansion of the types of records that could be obtained, it fails to mention the elimination of this key requirement—which, again, is precisely the change to which critics have objected. We’re also told that heightened standards apply to demands for records that “might have the slightest relation to freedom of speech and expression,” which is ridiculous. Library and bookstore records get a bit more protection because librarians raised an admirable fuss about this provision, but there’s no similar protection for records of people’s online reading habits, which have at least as much bearing on modern speech and expression as someone’s library borrowing. There’s the usual analogy between this authority and prosecutorial or grand jury subpoenas, but (perhaps you’re noticing a pattern here) the big, glaring difference between them is not even mentioned: Those processes are ultimately public, and that publicity serves as the strongest practical check on prosecutors who might be tempted to sweep too broadly, while giving third-party record holders a far stronger incentive to challenge improper requests on behalf of their customers.

By the time we get to Lone Wolf, it feels like they’re not even trying anymore:

While the FBI has confirmed that this section has never actually been used, it needs to be available if the situation arises where a lone individual may seek to do harm to the United States.

Why can’t they use the same criminal authority they’re forced to rely on when a lone individual who’s a citizen seeks to do harm to the United States? Why are the extraordinary breadth and secrecy of FISA surveillance, designed for dealing with state-sponsored espionage agencies and global terror networks, necessary when the adversary is some guy acting alone? Crickets.

Finally, we get these two howlers in the conclusion:

Little evidence has ever been proffered to demonstrate any PATRIOT Act misuse…. The act has been narrowed and refined continuously, contributing to the fact that no single provision of the PATRIOT Act has ever been found unconstitutional.

Now, as it happens, both of those claims are pretty clearly false. Federal courts have, in fact, found the gag provisions of the National Security Letter statutes to be unconstitutional—though the court opted to impose its own set of requirements rather than voiding the statutes outright. As for misuse, I’ll defer to the Inspector General of the Department of Justice, who characterized the FBI misuse of that authority uncovered by his office as “widespread and serious.”

But these are, in any event, absurd standards. Covert surveillance whose targets are never informed about it turns out to be rather difficult to challenge in court—harder still when the government can assert a state secrecy privilege that prevents courts from reaching the merits of the challenges that do arise. The identification of rule violations mostly relies on self-policing by intelligence agencies—which report plenty, though they often take their sweet time about it. More importantly, if the intended use of these authorities is to allow the government to siphon up vast amounts of information about thousands of mostly innocent Americans, and retain that information forever in massive classified databases, focus on “misuse” is something of a red herring. The “correct” use is too intrusive.

So this is what the best case for Patriot reauthorization without reform looks like, apparently: bold assertions offered without supporting evidence, and a persistent refusal to engage the actual objections raised by critics. No wonder they’re so anxious to bypass a debate.

The Heritage Foundation on the Patriot Act is a post from Cato @ Liberty - Cato Institute Blog

James Sherk of the Heritage Foundation has an excellent report out today on Trade Adjustment Assistance, and why Congress should allow the program to expire. Without action, it is set to do so on February 12 [$].

Trade Adjustment Assistance is a collection of programs that have been with us since the mid-1970s. The programs provide taxpayer-funded benefits to workers (and firms, and farmers, and entire “communities”) who are harmed – e.g., by losing their job — from import competition. The main program is the Trade Adjustment Assistance for Workers program, administered by the Department of Labor and the subject of a paper I wrote in 2007. 

It pains me to say that my 2007 call for its abolishment was instead followed in 2009 by an expansion of the program as part of the ‘stimulus’ package. Some of the extra goodies included allowing government workers access to the benefits, extending TAA to service workers (previously the program was applicable only to manufacturing workers) and weakening the link between trade and job losses (i.e., by removing the requirement that the job loss had to be linked to increased imports following a trade liberalization agreement).

Sherk gives a thorough critique of the program in his report, which I encourage you to read in full, but to my mind the important factors are:

First, very few unemployed people are in their unfortunate predicament because of import competition (you heard it here first, folks!). Why should we discriminate between workers based on the cause of their unemployment?

Second, it costs a bundle, an estimated $2.4 billion in 2011 according to the Department of Labor. Research, including the government’s own studies, has shown the program is poor value for money, even by government standards.

Third, and this is where I put on my free trader hat, TAA was originally sold as a way to get those who are harmed from import competition — or, to put it more accurately, those who have become accustomed to artificially created demand for their services by government intervention and taxing consumers – to go along with trade liberalization. But as recent events have shown, that “deal with the mob” has well and truly broken down. Even though TAA was expanded almost two years ago, Democrats are only now making tentative noises about passing the trade agreement with Colombia (nothing on Panama), and the administration agreed to promote the agreement with South Korea only after renegotiation and “improvement.”

TAA – along with much of current Federal activity — belongs at the state level, where local people can decide which benefits unemployed workers (of all stripes) should receive given state resources and priorities, and how best to deliver them.

Trade Adjustment Assistance Set to Expire? is a post from Cato @ Liberty - Cato Institute Blog

I wrote an op-ed for National Review (Online) last week showing how conservative exploitation of the Supreme Court’s broad misreading of the Commerce Clause to reach intrastate medical marijuana facilitated liberal exploitation of the same to create the individual mandate in Obamacare.

A principled stand on the limits of federal power does not begin and end with health care. The Commerce Clause is a double-edged sword: Conservatives cannot wield it in the drug war without making it a useful tool for advancing progressive visions of federal power.

I’m happy to see Barton Hinkle, winner of the 2008 Bastiat Prize for Journalism, pick up on my writing and drive the point home in today’s Richmond Times-Dispatch:

So far, many conservatives outraged over Obamacare do not seem to have reconsidered their enthusiasm for national drug prohibition. Whether they do so could provide a good indication as to whether they’re standing up for a principle — or merely against the president.

Hinkle points to a recent Heritage Foundation paper opposing Prop. 19, California’s referendum on marijuana legalization. The Commerce Clause makes a prominent appearance:

In 2006, the Supreme Court held in Gonzales vs. Raich that the Commerce Clause confers on Congress the authority to ban the use of marijuana, even when a state approves it for “medical purposes” and it is produced in small quantities for personal consumption. Many legal scholars criticize the Court’s extremely broad reading of the Commerce Clause as inconsistent with its original meaning, but the Court’s decision nonetheless stands.

Yes, the decision “nonetheless stands.” That doesn’t make it right. Several prominent conservative drug warriors signed on to an amicus brief in Raich endorsing an expansive use of the Commerce Clause. Copy, paste, and replace the word “marijuana” with “health insurance,” and you just wrote a Department of Justice brief for any of the suits defending Obamacare across the nation.

Or, for a good laugh, go read former Oklahoma congressman Ernest Istook, now working for Heritage, who frames the health care debate as “Obamacare vs. Limited Government.” As he puts it: “Straining to find a constitutional basis for mandating that everyone must buy health insurance, Obama’s lawyers resorted to the all-purpose Interstate Commerce Clause.” Istook signed on to the drug warrior brief in Raich.

There’s no good reason for this inconsistency. State attorneys general from both sides of the aisle opposed the federal intrusion in Raich. Deep red Alabama, Mississippi, and Louisiana touted their drug warrior prowess but argued against an overly broad Commerce Clause reading on federalism grounds. True blue California, Maryland, and Washington argued that the Controlled Substances Act did not bar states from regulating intrastate markets.

I make many of these points in a Cato Podcast, Conservatives, Obamacare, and the Commerce Clause. For some more Cato work on the drug war, check out how Portugal decriminalized drugs without the social ills that conservatives forecast, and how ending the war on drugs would save billions annually.

Obamacare and the Drug War is a post from Cato @ Liberty - Cato Institute Blog

Congratulations to the wave of Republicans who successfully ran on promises to tackle rising government debt and cut the hugely bloated federal budget. On the campaign trail, most candidates were not very specific about how they would cut the budget, but when they come to Washington they will be looking for good reform targets.

Newcomers to Congress can find a wealth of budget-cutting ideas in recent plans by various D.C. think tanks:

• At the Heritage Foundation, Brian Riedl has come up with $343 billion in proposed annual cuts.
• At the Committee for a Responsible Federal Budget, Bill Galston and Maya MacGuineas have proposed $400 billion in annual cuts.
• Esquire magazine assembled four former senators who came up with $476 billion in annual cuts.
• The National Taxpayers Union teamed up with the U.S. Public Interest Research Group to propose $600 billion of cuts over five years.
• Michael Ettlinger and Michael Linden of the Center for American Progress offer one plan that would cut annual spending by $255 billion.

Cato’s website, www.downsizinggovernment.org, also provides a treasure trove of spending cuts, and I will be publishing a detailed budget-reform plan in coming days. 

Some of the above budget plans include tax increases, but voters gave a resounding message yesterday that they want Congress to focus on cutting spending, not raising taxes.

Out of the starting gate next year, fiscal reformers in Congress should push for an across-the-board cut to discretionary spending for the rest of the current fiscal year. One approach would be for House leaders to propose a continuing resolution that extends spending at last year’s levels, less some substantial percentage cut applied to every program.

For the upcoming fiscal year of 2012, reformers need to carefully target some major program cuts and eliminations. The president and the Democrats in the Senate will likely resist proposed cuts, but the point is to further the national debate that has begun about the proper size and scope of the federal government.

Some initial targets for GOP reformers, with rough annual savings, could include: community development subsidies ($15 billion), public housing subsidies ($9 billion), urban transit subsidies ($9 billion), and foreign development aid ($18 billion). On the entitlement side, initial cuts could include raising the retirement age for Social Security and introducing progressive price indexing to reduce the growth rate of future benefits.

We will not get federal spending under control unless we begin a national discussion about specific cuts. And we won’t get that discussion unless enough members of Congress start pushing for specific cuts. Ronald Reagan was able to make substantial cuts to state grants in the early 1980s because policymakers had discussed such reforms throughout the 1970s. Republicans in the mid-1990s were able to reform welfare because of the extended debate on the issue that preceded it.

The electorate wants spending cuts, and they will support the policymakers who take the lead on cuts if they are pursued in a forthright and serious-minded manner.

What Spending Should the GOP Cut? is a post from Cato @ Liberty - Cato Institute Blog

Over at the Huffington Post,  I scrutinize a recent Legal Memorandum published by the Heritage Foundation on the Prop. 19 ballot initiative.

Here is an excerpt:

The Heritage memorandum claims that if Prop 19 were approved, it would conflict with the federal criminal statute, the Controlled Substances Act and thus “invite litigation that would almost certainly result in [Prop 19] being struck down” as unconstitutional. This legal claim is dead wrong. While it is true that the supremacy clause of the Constitution makes it clear that federal law will override a conflicting state law, that clause simply has no application here. The federal law on marijuana remains in force, but that does not mean that a state government is under any obligation to assist the feds. As the Supreme Court noted in New York v. United States (1992), the state governments are neither “regional offices nor administrative agencies” of the federal government. Let’s take another example. Suppose Congress were to criminalize, say, cotton candy–would California be in violation of the Constitution because its police agents are not now empowered to arrest people producing and possessing cotton candy? No. Nor could Congress compel the California legislature to move against cotton candy producers and consumers. Here again is the Supreme Court: “Even where Congress has the authority to pass laws requiring or prohibiting certain acts, it lacks the power directly to compel the States to require or prohibit those acts.” (New York v. United States, 505 U.S. 144, 166 (1992)). Prop 19 is consistent with the constitutional principle of federalism.

For additional Cato scholarship on drug policy, go here and here.

Heritage and Prop. 19 is a post from Cato @ Liberty - Cato Institute Blog

There has been an on-going discussion recently about the Tea Party’s foreign policy views and how this might influence the upcoming election and new members of Congress.  In an essay at the Daily Caller last week, the Heritage Foundation’s Jim Carafano addressed this question and the claim that the new “Defending Defense” initiative— led by Heritiage, AEI, and the Foreign Policy Initiative—is aimed at co-opting the Tea Party movement (for more on the substance, or lack thereof, of “Defending Defense,” see Justin Logan’s response here).

Over at The Skeptics blog, I take issue with Carafano’s assessment of the Tea Party’s foreign policy views:

With respect to Carafano’s assessment of the Tea Partiers’s views on foreign policy and military spending, most of what he puts forward is pure speculation. Little is actually known about the foreign policy views of a movement that is organized primarily around the idea of getting the government off the people’s backs. It seems unlikely, however, that a majority within the movement like the idea of our government building other people’s countries, and our troops fighting other people’s wars.

Equally dubious is Carafano’s claim that the Tea Party ranks include “many libertarians who don’t think much of the Reagan mantra ‘peace through strength’” but an equal or larger number who are enamored of the idea that the military should get as much money as it wants, and then some. Carafano avoids a discussion of what this military has actually been asked to do, much less what it should do. By default, he endorses the tired status quo, which holds that the purpose of the U.S. military is to defend other countries so that their governments can spend money on social welfare programs and six-week vacations.

Tea Partiers are many things, but defenders of the status quo isn’t one of them. This movement is populated by individuals who are incensed by politicians reaching into their pockets and funneling money for goo-goo projects to Washington. It beggars the imagination that they’d be anxious to send money for similar schemes to Brussels, Paris, Berlin and Tokyo, and yet that is precisely what our foreign policies have done — and will do — so long as the United States maintains a military geared more for defending others than for defending us.

Click here to read the entire post.

The Tea Party and Foreign Policy is a post from Cato @ Liberty - Cato Institute Blog

Bill Kristol has a plan to help the US military

George F. Will has called neoconservatism “a spectacularly misnamed radicalism” whose adherents are “the most radical people in this town.”  (It is a shame that the Heritage Foundation has fallen so far from its sensible opposition to the neoconservative vision and evidently bought into the neoconservative program in toto.)

Like other radicals, however, they are pretty good at politics, which is clear from reading their latest offering, a talking points document [.pdf] produced by the “Defending Defense” initiative intended to demonstrate that U.S. military spending is not that large and should not be cut.

I have several things to say about the document, but all of the internet sniping and providing adversarial quotes to journalists probably aren’t the best way to adjudicate the debate.  To that end, on behalf of my colleagues I extend the offer of an open, public, live debate to the Defending Defense people:  Let’s debate the security of the United States, the strategy to best protect it, and the resources needed to fund the strategy.  Any time, any place.

The overarching problem in this debate is that the big spenders keep inserting the red herring of defense expenditures as a percentage of GDP into the debate.  This is relevant only as it pertains to their claim that “current levels of defense spending are affordable,” but last time I checked the mere fact that something wouldn’t, in itself, bankrupt the country is not a sufficient conservative justification for a government program.

The logic of basing the military budget on a percentage of GDP would imply that security and economic growth are inversely related.  Of course, the simple fact is that economic growth does not pose a threat to the United States and economic contraction does not make us safer.  During World War II we spent roughly 40 percent of GDP on our military, and given where we were, that seems sensible to this analyst.  But the “given where we were” part of that sentence is doing a lot of work.  Where are we today?  What are the threats we face?  How should we deal with them?  How much would it cost to do so?  Answers to those questions should provide the grounding for our military budget, not the deeply unconservative justification that “it won’t bankrupt us.”

Another point: It might sound pedantic, but many of what they characterize as “myths” can’t be myths.  They might be wrong.  They might be poor analytic points.  But they can’t be “myths.”  To correct just a few of what they call “myths”:

“Pentagon budgets were a “gusher” of new money in the Bush Administration.”
-    A metaphor can’t be a myth.

“The United States should not be ‘the world’s policeman.’”
-    Preferences aren’t myths.

“Defense spending should focus primarily on ‘winning the wars we’re in.’”
-    Again, preferences aren’t myths.

Myths are mistaken empirical claims that people believe, or the stories surrounding mistaken empirical claims that cause people to believe them.  For example, lots of people think President Obama signed the TARP.  That’s a myth.  President Bush did it.  The way the neoconservatives are using the word “myth” in the document is something more like “argument I disagree with.”

But let’s take these “myths” one by one and have a look at the analysis.

1)    “Additional defense spending is unnecessary as the United States already spends more on defense than half the world combined.”

Interestingly, the authors nowhere argue that additional military spending is necessary, although they strongly imply that it is.  In 2005 Tom Donnelly and Gary Schmitt wanted 5 percent of GDP to go to defense, which today would be roughly $730 billion.  It wasn’t clear whether they wanted to keep the supplementals going with the 5 percent comprising just the base budget, but with the wars we’re already spending roughly $730 billion on the military as it is.  (Also, just a factual correction, the best estimate is that we spend just under what the rest of the world spends combined, not just over.)

The authors also spirit in a normative claim in the first sentence to fend off scrutiny: “No other country in the world has the enduring vital national interests of the United States, and therefore the U.S. military has global reach and responsibilities.”  Given the weight hung around this claim, it would have been good if the authors could have offered even a superficial defense of it.  They did not.

Instead, they move on to observing that using purchasing power parity, Chinese defense spending is closer to $150 billion than the $78 billion that market exchange rates would indicate.  This is solid analysis.  I am glad to see that someone has convinced Heritage president Ed Feulner, a leader of “Defending Defense,” to distance himself from his problematic 2007 judgment that “Beijing’s military spending, in purchasing power parity terms, would be around $450 billion – about what America spends.”  (Maybe he read my blog post correcting him.)

2)    “Pentagon budgets were a ‘gusher’ of new money in the Bush Administration.”

Again, “a gusher” is in the eye of the beholder.  For facts, you should turn to the study authored by my colleagues Ben Friedman and Chris Preble.  There they point out that U.S. military spending has risen by 50 percent over the last 12 years, not including inflation or the wars.  If you include the wars, U.S. military spending has increased by more than 80 percent since 1998.  Military spending constitutes 23 percent of the federal budget.  That’s real money where I come from.

3)    “Cutting waste and excess from the Pentagon budget will provide sufficient funds to make up for shortfalls.”

Depending on whether we change our grand strategy, this is definitely true.  Our foreign policy is insolvent today.  Given our commitments, defense spending is too low, but the commitments are the problem.  We could spend less with fewer commitments and still be safe.

4)    “Current levels of defense spending are unaffordable.”

Even though the rhetoric the authors assemble to knock down this claim isn’t very good, I agree with them.  (I agree based primarily on Stephen Brooks and William Wohlforth’s excellent book, which makes a strong case that the United States can afford a massive military budget.)  Big, fabulously wealthy countries like ours can afford to do lots of expensive things, like Medicare Part D or funding a chunk of the defense of Europe, Japan, South Korea, and Israel ourselves.  But it doesn’t mean we should, necessarily.

5)    “The United States should not be ‘the world’s policeman.’”

Again, this is a preference, not a myth.  But the authors’ central defense of the implied claim that we should be the world’s policeman comes in the argument that “the cost of preserving America’s role in the world is far less than would be the cost of having to fight to recover it or, still greater, the cost of losing it altogether.  While many Americans would prefer to see our allies and partners play a larger part in securing the blessings of our common liberty, no president of either political party has backed away from America’s global leadership role —a bipartisan consensus that remains strong evidence that American leadership is still necessary to protect the nation’s vital interests.”

This argument, in turn, is based on an unstated theoretical premise, which is that when America isn’t somewhere, all hell breaks loose, and that when all hell breaks loose, it tends to land on our heads.  The balance of power doesn’t work, we live in a bandwagoning world not a balancing world, and therefore if we aren’t everywhere, chaos will be, and if chaos is everywhere, it’s going to hit us eventually.

I think this is a silly claim, and I also think the theoretical roots of neoconservative foreign-policy thought are underdeveloped, but it would be good if an actual neoconservative could speak for himself about his own theory of international politics rather than allowing others to try to assemble coherent theoretical groundings for his ideas.

6)    “Defense spending should focus primarily on ‘winning the wars we’re in.’”

This might be a surprising area of agreement, but as someone who has long thought that the wars we’re in are dumb (and deeply unconservative), I believe strongly that focusing our defense dollars on winning the wars we’re in is a dumb idea.

Again, though, there’s lots left to discuss, so let’s hope AEI, Heritage, or the Foreign Policy Initiative will agree to a debate.

The ‘Spectacularly Misnamed Radicals’ Fire Back on Military Spending is a post from Cato @ Liberty - Cato Institute Blog

In the years since September 11, 2001, the secret digital surveillance state has grown enormously. Given heightened security measures, heightened anxiety, and cheaper-than-ever data collection and storage, such growth was perhaps inevitable.

But what are the proper limits on the secret collection of information? Where do our constitutionally guaranteed civil liberties stand in this new era? Do the federal government’s increased powers of surveillance even accomplish the security tasks at hand?

Constitutional lawyer and columnist Glenn Greenwald argues in this month’s Cato Unbound that the digital surveillance state is out of control. It’s also failed to deliver on its promises of greater security. Rather than helping to find the needle in the haystack, we have only made the haystack bigger.

Commenting on Greenwald’s essay will be Professor John Eastman, of Chapman University Law School; Paul Rosenzweig, now of the Heritage Foundation and formerly Deputy Assistant Secretary for Policy in the Department of Homeland Security; and the Cato Institute’s own Julian Sanchez, a prolific journalist on the interface of technology and civil liberties. Please stop by through the rest of this month for a discussion of one of our country’s most pressing issues in both civil liberties and national security.

Cato Unbound: The Digital Surveillance State is a post from Cato @ Liberty - Cato Institute Blog

The Heritage Foundation and National Association of Criminal Defense Lawyers (NACDL) made a stir by announcing their joint report, Without Intent: How Congress is Eroding the Criminal Intent Requirement in Federal Law. The report highlights the growth of federal criminal provisions in the 109th Congress. Many criminal statutes are drafted without the traditional requirement of criminal intent. When there is no requirement that the government prove you “willfully” or “knowingly” broke the law, mistakes are treated the same as intentional criminality. Some laws are written so broadly that it is impossible for anyone to know what conduct is illegal. Criminal provisions are included in statutes that are never reviewed by the judiciary committees of either chamber of Congress.

The NACDL has a follow-up analysis of the financial regulatory reform currently being considered by Congress. The Restoring American Financial Stability Act of 2010 has passed both houses and is heading into committee.

This 1600-page bill does everything that the Without Intent report warned against. The “reckless disregard” intent requirement is imported from tort law in several provisions and many others have no mental state requirement at all. New bribery and mail/wire fraud provisions are included where none are necessary. Bribery and fraud are already illegal.

Read the whole thing (direct .pdf link here).

Overcriminalization in the Financial Reform Legislation is a post from Cato @ Liberty - Cato Institute Blog

Quinn Hillyer has an excellent piece at the Washington Times highlighting the simultaneously farcical and frightening use of armed agents in enforcing suspected regulatory violations.

”The government,” wrote 50-year-old Denise Simon, “is too big to fight.” With those words, in a note to her 17-year-old son, Adam, she explained why she was committing suicide (via carbon monoxide) three days after 10 visibly armed IRS agents in bulletproof vests had stormed her home on Nov. 6, 2007, in search of evidence of tax evasion. Her 10-year-old daughter, Rachel, was there with Simon when the agents stormed in.

“I cannot live in terror of being accused of things I did not do,” she wrote to Adam. To the rest of the world, in a separate suicide note, she wrote: “I am currently a danger to my children. I am bringing armed officers into their home. I am compelled to distance myself from them for their safety.”

The IRS is not the lone culprit. The EPA, National Park Service, Small Business Administration and even the Railroad Retirement Board have acquired a taste for tactical enforcement of administrative sanctions.

Read the whole thing. And when you’re done, check out Tim Lynch’s book on the proper role of the criminal law, Radley Balko’s work on the unwarranted expansion of SWAT teams within American law enforcement, and the Heritage Foundation’s report on the uncontrolled growth of the federal criminal code.

Ninja Bureaucrats on the Loose is a post from Cato @ Liberty - Cato Institute Blog

One of the major problems with the growing body of federal crimes – over 4,500 and counting, expanding at the rate of 500 each decade – is that many lack the traditional requirement that the defendant has acted with a guilty mind, or mens rea. Highlighting the overcriminalization of nearly everything is necessary to educate the citizenry and put pressure on politicians not to pass overbroad and ill-defined criminal offenses. At some point, however, Congress must act to address the existing flawed statutes and put procedural barriers between bad ideas and the federal criminal code.

Enter the Heritage Foundation and the National Association of Criminal Defense Lawyers with their groundbreaking report, Without Intent: How Congress is Eroding the Criminal Intent Requirement in Federal Law.

The report studies the legislation proposed or passed by the 109th Congress (2005-2006) and finds that a majority lacked an adequate mens rea requirement. The report closes with a strong case for several fundamental changes in the way that Congress creates criminal laws:

• Enact default rules of interpretation ensuring that guilty-mind requirements are adequate to protect against unjust conviction.
• Codify the rule of lenity, which grants defendants the benefit of the doubt when Congress fails to legislate clearly.
• Require adequate judiciary committee oversight of every bill proposing criminal offenses or penalties.
• Provide detailed written justification for and analysis of all new federal criminalization.
• Redouble efforts to draft every federal criminal offense clearly and precisely.

This report is indicative of a broad effort developing across the political spectrum to fix a federal criminal code that has become disconnected from traditional notions of punishing blameworthy conduct. Northwestern Law’s Searle Center on Law, Regulation and Economic Growth held its 2009 Judicial Symposium on Criminalization of Corporate Conduct.

The Heritage Foundation is hosting an event highlighting the findings of Without Intent on Monday, May 24 that can also be viewed online.

Without Intent is a post from Cato @ Liberty - Cato Institute Blog

It was a good idea to get science and democracy from the ancient Greeks. It’s not such a good idea to get fiscal policy from the modern Greeks.

But that’s the way we’re headed.

Greece has a budget deficit of 13.6 percent. We’re not in that league — ours is only 10.6 percent, the highest level since 1945.

Greece has a public debt of 113 percent of GDP. We’re not there yet. But the 2009 Social Security and Medicare Trustees Reports show the combined unfunded liability of these two programs has reached nearly $107 trillion.

Under President Obama’s budget, debt held by the public would grow from $7.5 trillion (53 percent of GDP) at the end of 2009 to $20.3 trillion (90 percent of GDP) at the end of 2020. It could rise to 215 percent of GDP in 30 years. Welcome to Greece.

Here’s a graphic presentation of the official debt and real net liabilities of various countries, including the United States and Greece at the right. (From the Telegraph, apparently based on Jagadeesh Gokhale’s report.)

And here’s a Heritage Foundation chart on where the national debt is headed in the coming decade:

Paul Krugman wrote, “My prediction is that politicians will eventually be tempted to resolve the [fiscal] crisis the way irresponsible governments usually do: by printing money, both to pay current bills and to inflate away debt. And as that temptation becomes obvious, interest rates will soar.” Now he was writing in 2003, when a different president was in office, but he was also warning about the possibility of a ten-year deficit of $3 trillion. Presumably the same warnings apply to today’s much larger deficit projections. And he was absolutely right to fear that government would turn to inflation as a supposed solution.

The Greek Model is a post from Cato @ Liberty - Cato Institute Blog

Both the Wall Street Journal and the New York Times have just run major stories on presidential candidate Mitt Romney’s difficulties in getting people to understand the difference between his Massachusetts universal-health-care plan, which featured an individual mandate, subsidies, and forbidding insurance companies to deny coverage for preexisting conditions, and the Obama-Reid-Pelosi plan, which features an individual mandate, subsidies, and forbidding insurance companies to deny coverage for preexisting conditions.

President Obama is putting Romney on the spot by telling Matt Lauer that his bill is similar to Romney’s. Daniel Gross of Newsweek recommends that Obama hire Romney — someone who has management experience, no current job, and “relevant experience in implementing a large-scale health-care reform program, ideally one that involved using an individual mandate and the private insurance system to attain near-universal health insurance” — to run ObamaCare.

As Romney attacks the Obama bill as an unconstitutional “government takeover,” he makes two basic arguments in defending his own plan: First, that the Massachusetts law was passed on a bipartisan basis, hardly a substantive defense. Second, that his was a state plan, not a federal intrusion on state authority. He also offered a “conservative” defense of the individual mandate:

But he did so by adopting a more GOP-friendly vocabulary, declaring it a matter of “personal responsibility” for all people to buy into insurance pools so that “free riders” without insurance can’t stick taxpayers with their hospital bills.

“We are a party and a movement of personal responsibility,” he said at a book signing in Manchester. He invoked the same idea at the college, calling it a “conservative bedrock principle.”

That’s a point that Stuart Butler of the Heritage Foundation made as far back as 1992, but most conservatives didn’t embrace the argument. And they’ve strongly opposed the mandate in the Obama bill.

Conservatives have campaigned for more than a year against the Obama health care bill, with its mandate, subsidies, and insurance regulations. Now they are backing “Repeal It!” efforts and lawsuits to have it declared unconstitutional. Yet such conservative leaders as Rush Limbaugh and the editors of National Review endorsed Mitt Romney, the man who wrote the prototype for ObamaCare, in 2008. Romney is leading Republican polls for the 2012 nomination. Romney just won the straw poll at the Southern Republican Leadership Council (with only 24 percent, to be sure, and just 1 vote ahead of Rep. Ron Paul). Can the Republican effort to defeat President Obama and repeal ObamaCare really be led by the first American political leader to impose a health care mandate on citizens?

Can Romney Lead the Fight against ObamaCare? is a post from Cato @ Liberty - Cato Institute Blog

"Father of the Individual Mandate" Mitt Romney

The former nickname came from National Journal or The Wall Street Journal, I’m not sure which.  The latter nickname comes from Institute for Health Freedom president Sue Blevins.

See here for details on an upcoming event in Dallas where Goodman’s National Center for Policy Analysis will play host to Romney.

It should be an interesting event.  With all 40 Republican members of the U.S. Senate, including moderates like Sen. Olympia Snowe (R-ME), voting to declare an individual mandate unconstitutional…with 35 states moving legislation to block an individual mandate…with the Heritage Foundation rebuking an individual mandate…and with Virginia’s Democratically controlled Senate approving legislation to block an individual mandate…well, Romney may have a tough road to hoe with the conservatives who typically attend NPCA events.

‘Father of HSAs’ John Goodman Plays Host to ‘Father of the Individual Mandate’ Mitt Romney is a post from Cato @ Liberty - Cato Institute Blog

Steve Hynd at Newshoggers looks at Heritage’s recent work on Iran and observes that it sure seems like they’re prepared for war.  James Phillips says the Israelis may attack Iran but we shouldn’t try to stop them.  Phillips notes uncritically Israeli PM Binyamin Netanyahu’s characterization of the Iranian state as a “a messianic apocalyptic cult” and points out that while the United States “has the advantage of being geographically further away from Iran than Israel and thus less vulnerable to an Iranian nuclear attack … it must be sensitive to its ally’s security perspective.”

Therefore we should accede to an Israeli preventive strike and prepare for the consequences.  What’s odd about Phillips’ piece is that he doesn’t seem to think that the United States should provide its own view as to when an attack would be smart and when it would not be.  Instead, we should just toss the keys to the Israelis and buckle up: “Wash­ington should not seek to block Israel from taking what it considers to be necessary action against an existential threat. The United States does not have the power to guarantee that Israel would not be attacked by a nuclear Iran in the future, so it should not betray the trust of a democratic ally by tying its hands now.”  This is a pretty high standard.  It’s very difficult to guarantee a third party won’t do something in the future.  If that’s the standard we’re using to determine when we allow ourselves to be sucked into wars, we’re in for a lot of wars.  Moreover, I’m clear on the logic of starting a war, but why wouldn’t we, as the larger power in the relationship, want to determine the timeline on which the attack occurs?  Why just defer to Tel Aviv?

Ariel Cohen

Hynd also points to an accompanying piece by Ariel Cohen that calls on the U.S. to extend nuclear deterrence over Israel, Egypt, and Saudi Arabia, and to “deploy a visible deterrent, including overwhelming nuclear forces near Iran, on surface ships, aircraft, or permanent bases … designed to hold at risk the facilities that Iran would need to launch a strategic attack, thereby making any such attack by Iran likely to fail.”  Interestingly in a passage he attributes to personal meetings with Vladimir Putin and Sergei Lavrov, he says the Russian leadership sees Iran as a “regional superpower” and doesn’t want to go to war with them.

Cohen also says bombing is better than non-bombing because of the “existential threat” a nuclear Iran would pose to Israel, as well as Cohen’s worry that by not bombing “the U.S. would send a message to other countries that nuclear weapons are the trump card that can force U.S. and Israeli acquiescence.”  But they sort of are that sort of trump card, right?  Presumably that’s why the Iranians and the North Koreans appear to have been so enthusiastic about getting some.  Ultimately, says Cohen, the U.S. should drop the pretense of UN sanctions against Iran and opt instead for a sanctions coalition of the willing.  We should also apply unilateral sanctions against Russia for refusing to join the Iran sanctions coalition, and we should station nuclear weapons in the Middle East.

This is getting a bit too long for a blog post already, so I’ll just point to the study I produced on the “should we bomb Iran?” question back in 2006 for those with interest.  The basic outline of the argument holds up reasonably well, I think, so my thoughts are mostly contained in it.  While the Heritage scholars point out that the Obama administration is unlikely to be terribly enthusiastic about bombing Iran, it’s an interesting counterfactual to think about what things might look like if John McCain had won the presidency.  Imagine the Sarah Palin speeches.

Israel, the United States, and the Danger of War with Iran is a post from Cato @ Liberty - Cato Institute Blog