The New York Times has posted a handy tool for calculating savings from the Pentagon’s budget over the next ten years. I went through the exercise, and my plan resulted in cuts of $1.144 trillion over ten years. Had I checked all of the boxes in the Times’s calculator, it would have generated savings of up to $1.4 trillion.

Though I support reform of the the military retirement system, I think some of these proposals go too far (they would have saved up to $86.5 billion). We should continue to spend money recruiting the very best force, comprised of the most-qualified men and women ($5 billion), and we might find it hard to do that if/when the economy improves. Tuition assistance is a key factor driving recruitment, and I wouldn’t scale that back ($5 billion). (Full disclosure: I attended college on an NROTC scholarship.) We need the best possible services for families, and I could foresee problems with closing elementary and secondary schools on bases ($10 billion). And I have no particular quarrel with military bands ($0.2 billion). My ideal military will be smaller and more elite, but likely better compensated than today’s force. And retirees would continue to receive many benefits not enjoyed by their fellows who never served, but we should experiment with ways to control costs. The key take-away, and the one stressed in the accompanying story by Elisabeth Bumiller and Thom Shanker, is that it is possible to reduce military spending, and the resulting force will still be larger and more capable than any conceivable combination of rivals.

A few additional observations:

1) The Times’s calculator cites my and Ben Friedman’s contribution to the Sustainable Defense Task Force report, “Debts, Deficits, and Defense,” but the main part of the report was the work of the entire task force, and they deserve proper credit. I am particularly grateful to Carl Conetta and Charles Knight of the Project for Defense Alternatives.

2) Ben and I published a stand-alone report a few months later with some numbers drawn from the SDTF report, and with some additional detail surrounding our proposals that were not endorsed by all SDTF members. Our savings were calculated against the baseline from fiscal year 2010, and these numbers are now a bit dated.

3) When I hit the submit button comparing my choices with others who participated in the exercise, I discovered 80 percent of respondents supported the plan to reduce forces in Europe and Asia. That sort of systematic restructuring is necessary to ensure that we don’t impose undue burdens on what will necessarily be a smaller force. As I have said repeatedly, if we are going to spend less, we must expect our troops to do less, and expect other countries to do more.

A Do-It-Yourself Guide to Cutting the Military Budget is a post from Cato @ Liberty - Cato Institute Blog

Some interesting links on agriculture in the news today.

First, a terrific front-page article in the New York Times, about what my friend Vince Smith so accurately calls the “bait-and-switch” farmers are proposing in their offer to give up direct payments (subsidies that flow to farmers regardless of prices or production) in exchange for a new revenue insurance program.  As Vince so rightly points out, because the new revenue targets will be based on today’s current record crop prices, “If farm prices move back towards what are widely viewed as more normal levels than their current levels, farmers will be compensated for going back to business as usual.”  Vince blogs here about the proposed new revenue assurance program, and how it could end up costing us just as much as the current set of programs.

Farmers and their congressional sponsors are still blathering about “proportionality,” essentially saying that they should not have to contribute any more to budget cuts than any other area of the federal government. Here, for example, is a corn farmer, towing the party line:

“We are very much aware of the budgetary constraints of the federal government,” said Garry Niemeyer, an Illinois farmer who is president of the National Corn Growers Association. “We want to do our part as corn growers to help resolve those issues, but we only want to do our proportional part. We don’t want to have everything taken out on us.” [emphasis added]

This is wrong-headed. I’ve said it before, I’ll say it again: “proportionality” implies that everything the federal government currently does is equally valid. That is nonsense.  Some programs are legitimate, some less so. Some—like farm subsidies—not at all. Spending cuts should be made on the basis of legitimacy, not by some abstract formula equally applied. We should be reshaping (in a downward direction) the federal government here, not trimming a topiary hedge.

Second, Bloomberg.com has a good overview on the current state of the negotiations between the Congressional agriculture committees and the deficit-reduction supercommittee regarding the cuts to farm programs. The leaders of the agriculture panels have written a letter to the supercommittee, saying that cuts to agriculture programs should be limited to $23 billion and those cuts ”should absolve the programs in our jurisdiction from any further reduction.” So there.

Finally, here are Senators Mark Kirk (R-Ill.) and Sen. Jeanne Shaheen (D-N.H.)  on the wasteful and expensive sugar program.

Tuesday Agriculture Links is a post from Cato @ Liberty - Cato Institute Blog

What do the New York Times, the Brookings Institution, and the Cato Institute have in common?  Turns out we agree on deregulating the legal profession. 

From a Times editorial:  “Another step is to allow nonlawyers into the mix. The American Bar Association has insisted that only lawyers can provide legal services, but there are many things nonlawyers should be able to handle, like processing uncontested divorces. ”

From a Brookings op-ed: “It would be better to deregulate the provision of legal services. This would lower prices for clients and lead to more jobs.”

From a Cato paper: “Every state except Arizona prohibits the unauthorized practice of law (UPL); a person must possess an attorney’s license to hold himself out as a lawyer. UPL prohibitions restrict the right to pursue a legitimate occupation and the right to contract with others. By imposing a costly barrier to entry, they distort the market for legal services. Consequently, consumers face higher prices and fewer choices.”

It’s unanimous.  Get going state lawmakers—deregulate the legal profession.

Lawyers and Their Licenses is a post from Cato @ Liberty - Cato Institute Blog

I was going to write a blog post on the myriad follies of Mark Bittman’s op-ed in Sunday’s New York Times about all the ways the federal government could and should intervene in people’s dietary choices , but Jacob Sullum has already done it for me. Brilliantly.

HT: Radley Balko

Taking on the Food Police is a post from Cato @ Liberty - Cato Institute Blog

From their editorial the other day:

There is no doubt that Medicaid… has to be cut substantially in future decades to help curb federal deficits. For cash-strapped states, program cuts may be necessary right now. But in reducing spending, government needs to ensure any changes will not cause undue harm to millions.

How would the Times cut Medicaid spending? The magic of central planning!

The best route to savings — already embodied in the reform law — is to make the health care system more efficient over all so that costs are reduced for Medicaid, Medicare and private insurers as well. Various pilot programs to reduce costs might be speeded up….

And if government were smart, rather than stupid, that would work.

I’ve got a better idea for cutting Medicaid that meets the Times‘s criterion of not causing undue harm to millions.

Even the New York Times Wants to Cut Medicaid is a post from Cato @ Liberty - Cato Institute Blog

Monday’s high court decision in Wal-Mart v. Dukes has predictably drawn a strong reaction from legal academia, much of it critical of the Court. Of particular interest are the comments of Richard Primus (Michigan) at the New York Times‘s “Room for Debate” and Alexandra Lahav (Connecticut) at Mass Tort Litigation Blog. According to Primus and Lahav, the decision is the latest sign that the current Supreme Court leans toward a principle of “individualism” in applying the rules of civil litigation. Lahav in particular appears to view this as a shame, since “a more collectivist view” would carry with it more “potential for social reform.”

What does a term like “individualism” mean in the context of litigation procedure? One of its implications is that legal rights to redress on the one hand, and legal responsibility or culpability on the other, are ordinarily things that appertain to individual litigants, and ought not (absent clear authorization by statute or Constitution) be submerged into group claims on the one hand or group guilt on the other. In particular, we should be wary of proposals to deprive litigants of the choice to obtain individualized consideration of their claims or defenses on the grounds that society can accomplish more if it processes litigation in batches while accepting, say, statistical as distinct from personalized proofs.

Lahav and other scholars such as Samuel Issacharoff offer as examples numerous cases in which the Court has insisted on individualized process, often thereby frustrating the advocates of social reform in one or another area. The Court’s scruples on this matter have run into much adverse comment in the academic literature, and that’s hardly a surprise; as I argue in my book Schools for Misrule, today’s legal academy is far more keen on things like group rights and social engineering (as some of us might call it) than is the wider society.

Let me offer a few observations in defense or at least explanation of the Court’s approach:

1) The individualist leaning is by no means confined to the “conservative” justices; all nine members of the current Court partake of it to varying extents, and it is one major reason why the Court’s liberal justices joined in to make the Wal-Mart decision unanimous on one of its most practically significant issues, relating to the handling of claims for back pay.

2) Like so many other aspects of the Court’s work, this one does not fit well into simplistic accounts from some quarters about the Court’s supposed “pro-business” stance. In many circumstances business defendants actually prefer some degree of collectivization of claims, because their main practical concern is to put an end to litigation, and group resolution can do that. In the Court’s landmark 1997 Amchem Products v. Windsor decision, six of eight voting justices (Breyer and Stevens dissenting in part) struck down a giant batch settlement of asbestos litigation that had been ardently pursued by many of the nation’s biggest businesses, as well as many plaintiff advocates, on the grounds that it improperly denied claimants their right to individualized justice.

3) If the question is one of faithfulness to the constitutional vision of law held by the Founders, there really isn’t much of a question: like other Anglo-Americans of Blackstone’s era those Founders saw the courts as dispensers of individualized justice if they were to be anything at all. Much else in American law has changed beyond recognition in the intervening two-plus centuries. Fortunately, as the result in Wal-Mart v. Dukes suggests, that hasn’t.

For more commentary on the Wal-Mart case, check out (e.g.) editorials at the Washington Post, New York Daily News and Omaha World Herald (favoring the court’s view), and the New York Times and USA Today (opposing), as well as my contributions in the Philadelphia Inquirer and at Overlawyered.

Individualism in Legal Process and the Wal-Mart Case is a post from Cato @ Liberty - Cato Institute Blog

The New York Times‘s Charlie Savage reports that the FBI is preparing to release a new Domestic Investigations and Operations Guide (DIOG), further relaxing the rules governing the Bureau’s investigation of Americans who are not suspected of any wrongdoing.

This comes just three years after the last major revision of FBI manual, which empowered agents to employ a broad range of investigative techniques in exploratory “assessments” of citizens or domestic groups, even in the absence of allegations or evidence of wrongdoing, which are needed to open an “investigation.” The FBI assured Congress that it would conduct intensive training, and test agents to ensure that they understood the limits of the new authority—but the Inspector General found irregularities suggestive of widespread cheating on those tests.

Agents can already do quite a bit even without opening an “assessment”: They can consult the government’s own massive (and ever-growing) databases, or search the public Internet for “open source” intelligence. If, however, they want to start digging through state and local law enforcement records, or plumb the vast quantities of information held by commercial data aggregators like LexisNexis or Acxiom, they currently do have to open an assessment. Again, that doesn’t mean they’ve got to have evidence—or even an allegation—that their target is doing anything illegal, but it does mean they’ve got to create a paper trail and identify a legitimate purpose for their inquiries. That’s not much of a limitation, to be sure, but it does provide a strong deterrent to casual misuse of those databases for personal reasons. That paper trail means an agent who might be tempted to use government resources for personal ends—to check up on an ex or a new neighbor—has good reason to think twice.

Removing that check means there will be a lot more digging around in databases without any formal record of why. Even though most of those searches will be legitimate, that makes the abuses more likely to get lost in the crowd. Indeed, a series of reports by the Inspector General’s Office finding “widespread and serious misuse” of National Security Letters, noted that lax recordkeeping made it extremely difficult to accurately gauge the seriousness of the abuses or their true extent—and, of course, to hold the responsible parties accountable. Moreover, the most recent of those reports strongly suggests that agents engaged in illegal use of so-called “exigent letters” resisted the introduction of new records systems precisely because they knew (or at least suspected) their methods weren’t quite kosher.

The new rules will also permit agents to rifle through a person’s garbage when conducting an “assessment” of someone they’d like to recruit as an informant or mole. The reason, according to the Times, is that “they want the ability to use information found in a subject’s trash to put pressure on that person to assist the government in the investigation of others.” Not keen into being dragooned into FBI service? Hope you don’t have anything embarrassing in your dumpster! Physical surveillance squads can only be assigned to a target once, for a limited time, in the course of an assessment under the current rules—that limit, too, falls by the wayside in the revised DIOG.

The Bureau characterizes the latest round of changes as “tweaks” to the most recent revisions. That probably understates the significance of some of the changes, but one reason it’s worrying to see another bundle of revisions so soon after the last overhaul is precisely that it’s awfully easy to slip a big aggregate change under the radar by breaking it up into a series of “tweaks.”

We’ve seen such a move already with respect to National Security Letters, which enable access to a wide array of sensitive financial, phone, and Internet records without a court order—as long as the information is deemed relevant to an “authorized investigation.” When Congress massively expanded the scope of these tools under the USA Patriot Act, legislators understood that to mean full investigations, which must be based on “specific facts” suggesting that a crime is being committed or that a threat to national security exists. Just two years later, the Attorney General’s guidelines were quietly changed to permit the use of NSLs during “preliminary” investigations, which need not meet that standard. Soon, more than half of the NSLs issued each year were used for such preliminary inquiries (though they aren’t available for mere “assessments”… yet).

The FBI, of course, prefers to emphasize all the restrictions that remain in place. We’ll probably have to wait a year or two to see which of those get “tweaked” away next.

FBI’s New Guidelines Further Loosen Constraints on Monitoring is a post from Cato @ Liberty - Cato Institute Blog

A few days ago the New York Times offered the following explanation for why public college and university students graduate with less debt than people attending for-profit schools:

[F]or-profit schools sometimes encourage students to borrow privately from the school, rather than from federal programs, which often have lower rates and loan forbearance for those who fall ill or become jobless.

Of course! Evil “subprime” education has teamed up with evil subprime lending to form the Dastardly Legion of Subprime Higher Ed!

Or maybe not. It could also be that the Old Grey Lady is losing her memory a bit and forgot about the, oh, $75 billion or so that public colleges get directly from state and local taxpayers to keep their prices down. 

Darn those meddling facts.

Oh, Where’d I Put Those Facts? is a post from Cato @ Liberty - Cato Institute Blog

Last week, the House passed a homeland security appropriations bill slashing funding for grants to states and localities. The New York Times has now noticed and unleashed an indignant editorial:

House Republicans talk tough on terrorism. So we can find no explanation — other than irresponsibility — for their vote to slash financing for eight antiterrorist programs. Unless the Senate repairs the damage, New York City and other high-risk localities will find it far harder to protect mass transit, ports and other potential targets.

The programs received $2.5 billion last year in separate allocations. The House has cut that back to a single block grant of $752 million, an extraordinary two-thirds reduction. The results for high-risk areas would be so damaging — with port and mass transit security financing likely cut by more than half — that the chairman of the House Homeland Security Committee, Peter King of New York, voted against the bill as “an invitation to an attack.”

Only a few months ago, Times editorials accused King of trying to “hype” and “stoke” fear of homegrown Muslim terrorism. It’s sort of touching to see them get behind his fearmongering when the beneficiaries are local firefighters, police, and other local interests.

But the editorial has trouble worse than hypocrisy. For starters, it’s light on facts. Its accounting seems to omit over $320 million in funds for local firefighters that a floor amendment put in the bill. It also fails to mention that the bill eliminates a formula that ensures that homeland security funds are distributed to every state. Because it means that counterterrorism spending is highest per-capita in rural areas where the threat from terrorism is lowest, homeland security watchers have long attacked that minimum funding provision. So while this bill would indeed cut homeland security funds going to New York, it would also mean that New York gets more of the remaining funds.

More importantly, the Times evidently did not try too hard to find an explanation for the cuts once they settled on irresponsibility, given that Republican appropriators readily offered one: the funds are wasteful. Rather than explain why they think the money is well spent (my definition of responsibility), the editorial conflates spending on security with security itself. It says the cuts will be “damaging,” but it cites only damage to the budgets of recipient agencies, not their purpose.

In fact, the threat of terrorism is so low in the United States and the efficacy of the funds in mitigating it so uncertain that the right amount of homeland security spending in most parts of the United States is none. That is especially true now that we are roughly a decade removed from the September 11 attacks, which spawned a massive increase in homeland security grant-making. That splurge was meant to bolster our ability to defend against what has proved a massively inflated threat of catastrophic terrorism; it was not meant to be a permanent subsidy to state and local governments.

New York City is uniquely threatened, but that does not mean that federal taxpayers should foot the bill. The federal government should collect intelligence on terrorists and hunt them down. Local and state officials should use that information to determine the right amount of local security spending. They have to ask whether normal policing funds, school spending, or slightly lower taxes are worth sacrificing for a new camera or chemical clean-up suit. Federal grants, because they are buried in a massive budget and partially deficit-funded, dilute our ability to perceive those tradeoffs. They also heighten fear of terrorism by encouraging state and local interests to overstate their peril to win the grants, as the editorial demonstrates.

It ends by instructing the Senate to “stand up for security over politics” and restore funding to past levels. But these decisions should be made politically. We give power over security policy to politicians — rather than leaving it exclusively to unelected bureaucrats — because these decisions are important. That is a product of design, not an accident. The notion that security is too important for politics is backwards.

Luckily, the attempt to divorce security policy from electoral politics is a pretense. The Times is engaging in politics by asking for funds. They aim to politically punish those that oppose their preferred policies. If the Senate restores most of the grant funds, as it likely will, it will do so for sound political reasons.

Cross-posted from The National Interest.

The NYT‘s Weak Defense of Homeland Security Grants is a post from Cato @ Liberty - Cato Institute Blog

The United States will begin drawing down troops in Afghanistan this July. The White House is desperately trying to seize the narrative of the withdrawal claiming that the cuts will be “real” even as Defense Secretary Robert Gates is arguing for the opposite.

This week, the New York Times revealed that some in President Obama’s national security team are seeking steeper reductions, particularly after the death of Osama bin Laden and the increasing costs of the war.

Steeper reductions are certainly warranted. A limited counterrorism mission must be on the table.

The president will try to claim credit for keeping his pledge to reduce the U.S. troop presence, but when we consider that there are three times as many troops in Afghanistan today compared to when Obama took office, a reduction of 3,000-5,000 (out of the roughly 100,000 U.S. troops there) won’t mean much.

Another fold in the Times story is that Secretary Gates and top military commanders in the field are arguing for gradual cuts—not steep reductions. Let’s remember last summer’s Rolling Stone article that profiled the now retired four-star U.S. Army Gen. Stanley McChrystal. He was asked to leave because he made comments that undermined civilian control of the military. Today, albeit in a far less severe manner, military commanders are walking the line of advocating a direction in policy that is at odds with civilians officials.

This underscores a far deeper problem with military policymaking: who controls what exactly?

What Obama decides on for reduction in groundtroops—a token withdrawal or steeper cuts—will partly reflect how confused the Constitutional roles and chain of command has become in the conduct of war.

Cross-posted from The National Interest.

A Debate About Troops is a post from Cato @ Liberty - Cato Institute Blog

The New York Times recently ran a story portraying the Gates Foundation as the puppeteer of American education policy, bribing or bullying scholars and politicians into dancing as it desires. Rick Hess, of the American Enterprise Institute, feels that the story misrepresented his position on the potentially corrupting influence of foundations, making it sound as though he were referring to the Gates Foundation in particular when in fact he was referring to the impact of foundations generally.

Hess told the Times, among other things, that

As researchers, we have a reasonable self-preservation instinct. There can be an exquisite carefulness about how we’re going to say anything that could reflect badly on a foundation. We’re all implicated.

Next Monday, the Cato Institute will publish a study titled: “The Other Lottery: Are Philanthropists Backing the Best Charter Schools?” In it, I empirically answer the titular question by comparing the academic performance of California’s charter school networks to the level of grant funding they have received from donors over the past decade. The results tell us how much we should rely on the pairing of philanthropy and charter schools to identify and replicate the best educational models. Considerable care went into the data collection and regression model. As for the description of the findings, it’s as simple and precise as I could make it. I doubt it will be hailed as exquisite.

Does Scholar Self-Interest Corrupt Policy Research? is a post from Cato @ Liberty - Cato Institute Blog

This weekend, New York Times op-ed columnist Ross Douthat wrote a piece full of common sense thinking about immigration control and the E-Verify federal background check system.

“Common sense”—or “what most people think”—is an interesting thing: When generations of direct experience accumulate, common sense becomes one of the soundest guides to action. Think of common law, its source deep in history, molded in tiny increments over hundreds of years. Common law rules against fraud, theft, and violence strike a brilliant balance between harm avoidance and freedom.

When most people lack first-hand knowledge of a topic, though, common sense can go quite wrong. Such is the case with ”common sense” in the immigration area, which is not a product of experience but collective surmise. Douthat, who has the unenviable task of leaping from issue to issue weekly, indulges such surmise and gets it wrong.

Take, for example, the premise that American workers lose when immigration rates are high: “Amnesty,” says Douthat, would “be folly (and a political nonstarter) in this economic climate, which has left Americans without high school diplomas (who tend to lose out from low-skilled immigration) facing a 15 percent unemployment rate.”

On the whole, American workers do not lose out in the face of immigration. To the extent some do, it is penny-wise and pound foolish to retard our economy (in which displaced workers participate) and overall well-being (which affects displaced workers, too) in the name of protecting status quo jobs for a small number of native-borns.

Full immigration reform that includes generous opportunities for new low-skill workers is not folly, whatever its political prospects may be.

But I want to focus on Douthat’s conclusion that E-Verify is the way forward for immigration control. He cites a study finding that Arizona’s adoption of an E-Verify mandate caused the non-citizen Hispanic population of Arizona to fall by roughly 92,000 persons, or 17 percent, over the 2008–2009 period, and concludes:

[M]aybe — just maybe — America’s immigration rate isn’t determined by forces beyond any lawmaker’s control. Maybe public policy can make a difference after all. Maybe we could have an immigration system that looked as if it were designed on purpose, not embraced in a fit of absence of mind.

Though tentative, his implication is that a national E-Verify mandate is the solution. Everything that came before was the product of fevered impulses.  Maybe E-Verify is the most practical solution. Douthat’s calm tone sounds like common sense.

Ah, but neither Douhtat or the authors of the study have thought that problem all the way through (and the study doesn’t claim to): The decline in Arizona was not produced simply by moving illegal immigrants from Arizona back to Mexico and Central America. They went to Washington state and other places in the United States that are less inhospitable to immigrants. A national E-Verify mandate would offer no similar refuge, and the move to underground (or “informal”) employment would occur in larger proportion than it did in Arizona.

The report also cautions that the honeymoon in Arizona may not hold:

[T]he initial effects of the legislation are unlikely to persist if actors in the labor market learn that there are no consequences from violating these laws. Hence, for long-term effectiveness, policymakers should also consider the role of employer sanctions, which have not played a large role in Arizona’s results so far. However, policymakers must weigh the sought-after drop in unauthorized employment against the costs associated with shifting workers into informal employment.

That’s antiseptic language for: investigations of employers, raids on workers, heavy penalties on both, and growth in black markets and a criminal underground. “Balmy” is a way of describing the temperature potatoes pass through in a pressure cooker.

It’s hard, on analysis, to see Arizona’s experience being replicated or improved upon by an E-Verify mandate that’s national in scale without a great deal of discomfort and cost. I surveyed the demerits of electronic employment eligibility verification in “Franz Kafka’s Solution to Illegal Immigration.”

There is more not to love in the Douthat piece. Take a look at this shrug-o’-the-shoulders to the deep flaws in the concept of “internal enforcement” and E-Verify:

Arizona business interests called it unfair and draconian. (An employer’s business license is suspended for the first offense and revoked for the second.) Civil liberties groups argued that the E-Verify database’s error rate is unacceptably high, and that the law creates a presumptive bias against hiring Hispanics. If these arguments sound familiar, it’s because similar critiques are always leveled against any attempt to actually enforce America’s immigration laws. From the border to the workplace, immigration enforcement is invariably depicted as terribly harsh, hopelessly expensive and probably racist into the bargain.

We should disregard these problems because they’re familiar? With regard to E-Verify, they’re familiar because they are the natural consequence of dragooning the productive sector into enforcing maladjusted laws against free movement of people from a particular ethnic category to where their labor is most productive.

Problem-solving is welcome, and columnists like Ross Douthat have to at least point to a solution with regularity. But this effort, sounding in common sense, does not rise to the challenge. The solution is not even more enforcement of laws inimical to human freedom. The solution is reforming immigration laws to comport with … common sense!

E-Verify and Common Sense is a post from Cato @ Liberty - Cato Institute Blog

Six Republican senators are challenging President Obama’s authority to conduct an open-ended war in Libya without congressional authorization. The six conservative lawmakers (Rand Paul (R-KY), Jim DeMint (R-SC), Mike Lee (R-UT), Ron Johnson (R-WI), Tom Coburn (R-OK), and John Cornyn (R-TX)) sent a letter to the president on May 18th asking if he intends to comply with the War Powers Resolution. The full text of the letter can be found here.

The law stipulates that the president must terminate military operations within 60 days, unless Congress explicitly authorizes the action, or grants an extension. The clock on the Libya operation started ticking on March 21, 2011. Congress has neither formally approved of the mission, nor has it granted an extension. Therefore, the 60-day limit expires tomorrow, May 20th.

Last week at The Skeptics, I noted Deputy Secretary of State James Steinberg’s testimony before the Senate Foreign Relations Committee, in which he suggested that the administration wanted to comply, but was consulting with Congress about how to do so. The New York Times presented some of the creative ideas that the administration was considering in order to adhere to circumvent the law. But the senators can read the Times, too. In their letter to the president, they write:

Last week some in your Administration indicated use of the United States Armed Forces will continue indefinitely, while others said you would act in a manner consistent with the War Powers Resolution. Therefore, we are writing to ask whether you intend to comply with the requirements of the War Powers Resolution. We await your response.

Let me be clear about one thing: I’m not a huge fan of the War Powers Resolution, per se. To me, it is silly, sort of like a law that affirmed the Congress’s authority to levy taxes, borrow and coin money, and establish Post Offices. In the same section where these powers are delegated, the Constitution clearly stipulates that Congress shall have the power to declare war. So why does there also need to be legislation?

Most presidents have complied with the spirit of the War Powers Resolution, but more out of deference to the notion that Congress has some role in whether the United States goes to war, not out of genuine conviction that Congress does/should have the most important role in deciding such things. By all appearances, President Obama is bypassing the charade.

I anxiously await his response to the senators’ letter, and am likewise curious to see if other senators raise questions about the administration’s intentions.

Will Obama Comply with the War Powers Resolution? is a post from Cato @ Liberty - Cato Institute Blog

Animal-welfare activists have scored much publicity success by releasing hidden-camera videos that they say document the mistreatment of animals at farms and slaughterhouses. Now, at the behest of farm interests, lawmakers in Iowa, Florida, and Minnesota are proposing laws seeking to criminalize the making and even possession of such videos. According to the New York Times, the Iowa bill, which has passed the lower house of the legislature in Des Moines:

would make it a crime to produce, distribute or possess photos and video taken without permission at an agricultural facility. It would also criminalize lying on an application to work at an agriculture facility “with an intent to commit an act not authorized by the owner.”

From a libertarian perspective, there’s so much wrong with these bills that it’s hard to know where to begin. Maybe with the bills’ ridiculous overbreadth and over-punitiveness—the Florida proposal, for example, apparently would ban even roadside photography of farms, and send offenders to prison for as much as thirty years. In proposing a (very likely unconstitutional) ban on even the possession of improperly produced videos, the Iowa bill, ironically or otherwise, echoes the tireless legislative efforts of some animal rights activists over the years to ban even possession of videos depicting dogfights and other instances of animal cruelty, for example.

The fact is that we already criminalize too much photo-taking. Depending on where you live, it may be unlawful to snap photos in a busy transit hub, or videotape the police officer who’s conducting an arrest; New Jersey is now considering a law that could ban much picture-taking of children in public places. To be sure, farmers and food processors also have rights deserving of respect, but the core of those rights should be the right to post a notice of “No photography on premises” and then seek civil (as distinct from criminal, in the absence of forcible entry) remedies against visitors or employees who ignore it.

Relatedly, the New York Times invited me to join a “Room for Debate” discussion today on farm animal welfare and my contribution is here. My suggestions that the federal government leave the issue to the states, and that the development of a market in more expensive but humanely raised meat is to be welcomed, brought down predictable outrage from some readers, whose comments included, “The ‘free-market’ litany is a lying crock” and, “It would be a very good thing if meat became unaffordable to most ordinary people.”

Not so relatedly, I am happy to report that the Environmental Protection Agency has finally backed off its position that dairy farmers must build elaborate containment structures to guard against milk spills on the theory that—milk containing butterfat and all—those mishaps should be legally construed as “oil spills.” I had criticized the agency’s interpretation here and here.

A Ban on Farm-Filming? is a post from Cato @ Liberty - Cato Institute Blog

The Belgian painter René Magritte is famous in part for the painting pictured below.

What’s surprising is how much Magritte can tell us about our war in Libya. To recap where we are in Libya, our military objective is to “protect civilians” in that country. Except there’s this paragraph opening the recent New York Times article on the war:

WASHINGTON — NATO planners say the allies are stepping up attacks on palaces, headquarters, communications centers and other prominent institutions supporting the Libyan government, a shift of targets that is intended to weaken Col. Muammar el-Qaddafi’s grip on power and frustrate his forces in the field.

The Times also runs these quotes from officials in charge of the war:

“Now we are going after his rear echelon,” one NATO official said. “We are going after his ability to command and control his forces — his headquarters, his command posts, his communications — all those things that allow him to coordinate his attacks at the front.”

Military officials privately acknowledge that removing Colonel Qaddafi from power is the desired secondary effect of striking at state television and other symbols of his authoritarian rule. “His people may see the futility of continued resistance,” one Pentagon official said.

Somebody should probably loop in poor White House Press Secretary Jay Carney, who made the mistake just yesterday of saying the following:

“The goal of the mission is clear: protect the civilian population, enforce the no-fly zone, enforce the arms embargo. [It is] certainly not the policy of the coalition, of this administration, to decapitate, if you will, or to effect regime change in Libya by force.”

So let’s work this out. The United States currently has as a policy objective in Libya to remove Muammar Qaddafi from power. Washington is simultaneously using the military to attack “institutions supporting the Libyan government” in order to “weaken Col. Muammar el-Qaddafi’s grip on power,” but our official position is that doing so is unrelated to our policy objective of getting Qaddafi out of power. Does the administration really think we’re that stupid? Perhaps more importantly, is Congress that stupid?

Also, it may be time for a rundown of terms for which we no longer have adequate working definitions. I nominate:

• “war”
• “kinetic military action”
• “protect”
• “civilians”
• “protect civilians”
• “massacre”
• “regime change”
• “target”

Any other nominees?

René Magritte’s War is a post from Cato @ Liberty - Cato Institute Blog

Over at the Fordham Institute, Senior Fellow Peter Meyer continues the assault on logic that Fordham has insisted on perpetrating when it comes to national curriculum standards. Writing about a New York Times story on the deceptive curriculum “guidelines” manifesto released by a number of national-standards supporters earlier this week, Meyer declares that:

Contrary to popular belief (especially in some Tea Party circles), a national curriculum, done properly, does not threaten local control.  As we learn in this story, plenty of folks, including Randi Weingarten and our own Checker Finn, have signed on to a “common curriculum,” which its proponents say will constitute only about half of a school’s “academic time.”

Maybe I’m missing some very small but incredibly powerful wrinkle in the logic here, but it seems to me that by definition forcing local districts to use national standards must threaten local control. Indeed, it must not only threaten it, it must actually defeat it. And this is in no way changed by the curriculum having to account for “only about half” of a school’s time: Hours formerly controlled locally are now controlled nationally, which is inescapably a major incursion on local control.

Maybe in some dimension white is black, black is white, and ants are really walruses. But in this dimension, as far as I know, the laws of reality and logic must still apply — even to national curriculum standards.

Not Possible in This Dimension is a post from Cato @ Liberty - Cato Institute Blog

Last week saw a splash of publicity for defenders of Obamacare’s constitutionality.  First, Yale law prof Akhil Amar had a hyperbolic op-ed in the L.A. Times, prompting a thorough fisking by Tim Sandefur, Ilya Somin, and me (among others). Then Harvard law prof Larry Tribe (who has written for the Cato Supreme Court Review) had one in the New York Times.  Here’s an excerpt:

Since the New Deal, the court has consistently held that Congress has broad constitutional power to regulate interstate commerce. This includes authority over not just goods moving across state lines, but also the economic choices of individuals within states that have significant effects on interstate markets. By that standard, this law’s constitutionality is open and shut. Does anyone doubt that the multitrillion-dollar health insurance industry is an interstate market that Congress has the power to regulate?

Well, actually, Prof. Tribe, you’re asking and answering the wrong questions, as I say in my letter to the editor that appeared in the Sunday Times:

First, this is indeed a “novel” issue for the Supreme Court: Never before has the federal government asserted the power to require people to engage in economic activity under the guise of regulating commerce.

Second, those challenging the law do not question Congress’s power to regulate the “multitrillion-dollar health insurance industry,” but rather distinguish such regulation from a command for individuals to purchase that industry’s products.

Third, the difference between activity and inactivity is anything but “illusory”; if Congress can regulate mere decisions, then it can tell me, for example, that I shouldn’t spend time writing letters to the editor.

And finally, imagining that Justice Antonin Scalia would support the government here because he previously ratified prohibitions on the production and consumption of marijuana is to remove the very activity-inactivity distinction that he recognized in that earlier opinion.

Most recently, the Times itself editorialized against the views Randy Barnett presented to the Senate Judiciary Committee — and Randy replied here. 

Setting aside the issue of why Congress is only now getting around to holding hearings on the constitutionality of a fundamental piece of legislation it passed nearly a year ago, it’s clear now at least that the proponents of limitless, extra-constitutional government are running scared.  Obamacare delenda est.

Obamacare Defenders Grasping at Straw Men is a post from Cato @ Liberty - Cato Institute Blog

You have to read all the way to the end to get exactly what the New York Times is getting at in its Sunday editorial, ”Netizens Gain Some Privacy.”

Congress should require all advertising and tracking companies to offer consumers the choice of whether they want to be followed online to receive tailored ads, and make that option easily chosen on every browser.

That means Congress—or the federal agency it punts to—would tell authors of Internet browsing software how they are allowed to do their jobs. Companies producing browser software that didn’t conform to federal standards would be violating the law.

In addition, any Web site that tailored ads to their users’ interests, or the networks that now generally provide that service, would be subject to federal regulation and enforcement that would of necessity involve investigation of the data they collect and what they do with it.

Along with existing browser capabilities (Tools > Options > Privacy tab > cookie settings), forthcoming amendments to browsers will give users more control over the information they share with the sites they visit. That exercise of control is the ultimate do-not-track. It’s far preferable to the New York Times‘ idea, which has the Web user issuing a request not to be tracked and wondering whether government regulators can produce obedience.

The New York Times’ Glib Call for Internet and Software Regulation is a post from Cato @ Liberty - Cato Institute Blog

From a New York Times report on NBC’s interview:

Former Vice President Dick Cheney . . .  said President Obama is likely to be a one-term president because his policies are unpopular with the public.

“His overall approach to expanding the size of government, expanding the deficit, and giving more and more authority and power to the government over the private sector,” Mr. Cheney said in an interview with Jamie Gangel for NBC News. “Those are all weaknesses, as I look at Barack Obama. And I think he’ll be a one term President.”

I recall the Bush-Cheney administration also came under criticism for “expanding the size of government, expanding the deficit, and giving more and more authority and power to the government,” and it didn’t prevent him from being reelected.

Well, Bush Got Two Terms is a post from Cato @ Liberty - Cato Institute Blog

What is it about the editorialists at The New York Times? Again today they’re ridiculing the decision by the new House to begin its business yesterday by reading the Constitution aloud. On Tuesday, with great pomposity themselves, the editors called the anticipated reading “a theatrical production of unusual pomposity.” Then in a nasty little editorial today entitled “The United States Consti …tion” — that’s not a typo; that’s their headline — they criticize House leaders for deciding not to read the “obsolete or offensive” parts of the document that are no longer law due to subsequent amendment. The Constitution was read, that is, as it exists today, which hardly seems surprising.

But it’s far more than surprising to the Times, apparently, because this “rewriting of history” deprives us of yet another opportunity to wallow in the unpleasant episodes of our past, as the Times and its followers so love to do — American unexceptionalism and all. Indeed, those offensive provisions “were written by a group of men that many in the Tea Party and elsewhere seem to consider infallible and nearly divine.”

It’s hard to make this stuff up; you have to simply quote it. Which brings us to the point of the editorial: What really troubles the Times, you see, is that Republican leaders “missed a chance to demonstrate that this document is not nailed to the door of the past. It remains vital precisely because it can be reimagined.” Well, yes, we have “reimagined” the Constitution from time to time — by amendment. But that’s not quite what the Times has in mind. No, the editors grant that the Constitution “was a work of political genius” (despite those offensive parts?), but “largely because its authors handed its interpretation to the open minds of posterity.” Through amendment? Well, not entirely, or even mainly, in today’s context. In their Tuesday piece, they revealed their hand — hardly a surprise — when they spoke of constitutional text “that the founders wisely left open to generations of reinterpretation.”

So it’s not just by amendment that we change our fundamental law: that’s how the Civil War generation removed offensive parts, legitimately; and that’s how women got the vote. But there’s another way to amend the Constitution, too — by “reinterpreting” its text. That’s how the New Dealers did it, as I discussed in this space yesterday and have more fully elsewhere. After Roosevelt’s infamous Court-packing threat, a cowed Supreme Court turned the Constitution on its head: by reading shields against power as swords of power; by turning a Constitution for limited government into one of virtually unlimited government. That’s fine with the Times. It’s not with the people the Tea Party sent to Washington, and that’s why the Times has them in its sights. What the Times champions is not constitutionalism. It’s politics. They won’t say it. We will.

The Constitutional Vision of The New York Times, Again is a post from Cato @ Liberty - Cato Institute Blog