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Once More Into the Obamacare Breach
Posted by Ilya Shapiro
Today we filed Cato’s sixth brief supporting the various legal challenges to Obamacare, this time in the D.C. Circuit.  Like Tom Joad, wherever the fight has been, we’ve been there, and now it’s in our backyard.
In February, Judge Gladys Kessler of the D.C. district court granted Congress the power to regulate “mental activity” in a decision that flippantly disregarded the core distinction between action and inaction: “Making a choice is an affirmative action, whether one decides to do something or not do something.”  The frightening scope of that opinion has proven more harmful than helpful to the government, which has shifted its focus away from Kessler’s sweeping language by describing the mandate as merely a requirement that people pre-pay for the health care they will inevitably use.
Our latest brief deals more directly with that added nuance—even more so than the brief Cato filed two weeks ago.  Due to a local circuit rule requiring amici with similar arguments to file jointly, Cato coordinated a brief involving six other organizations—Mountain States Legal Foundation, Pacific Legal Foundation, Competitive Enterprise Institute, Goldwater Institute, Revere America, and Idaho Freedom Foundation—as well as Prof. Randy Barnett.  
Using Cato’s previous brief as a starting point, amici worked together to adjust our arguments in light of new ideas coming from both the government and academia.  The core argument, however, remains the same: regardless of any linguistic contortions, the non-purchase of health care is fundamentally a non-economic inactivity that Congress cannot reach under the Commerce and Necessary and Proper Clauses.  
Allowing Congress the power to conscript citizens into economic transactions not only goes beyond current precedent, but would give Congress a general and limitless police power to do whatever it thinks best, checked only by politics.  
In addition to the doctrinal arguments we presented in previous briefs, here we remind the court that limiting Congress’s power is the explicit purpose of Article I of the Constitution and address the relationship of the individual mandate to United States v. Comstock​, the most recent interpretation of the limits on federal power under the Necessary and Proper Clause (a case in which Cato also filed a brief, that Ilya Somin covered 
in our Supreme Court Review
, and about Trevor Burrus and I recently published a law review article).  
The D.C. Circuit will hear the case of Seven-Sky v. Holder in September.  Given the state of litigation around the country, we will likely not be filing another Obamacare brief before the action reaches the Supreme Court—which it’s expected to later this year, after the first few circuit courts issue their rulings.
Ilya Shapiro • May 23, 2011 @ 5:07 pm
Filed under: General; Health Care; Law and Civil Liberties
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Transportation: Top Down or Bottom Up?
Posted by Randal O'Toole
America’s transportation system needs more centralized, top-down planning. At least, that’s what the Brookings Institution’s Robert Puentes advocates in a 2,350-word article in the May 23 Wall Street Journal.
If that seems like an unlikely message from America’s leading business daily, perhaps it is because Puentes couched it in terms such as “spending money wisely,” solving congestion, and “adhering to market forces.” But not-so-hidden behind these soothing phrases is Puentes real argument: “America needs to start directing traffic” by developing “a clear-cut vision for transportation.” Such a vision “must coordinate the efforts of the public and private sectors.”
“The big question,” Puentes says, “is how much it will all cost.” This is a diversion from the real big question, which is: who will do this coordination? In Puentes view, the answer is smart people in Washington DC who can best determine where to make “critical new investments on a merit basis” using such tools as an infrastructure bank.
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Randal O'Toole • May 23, 2011 @ 3:08 pm
Filed under: Energy and Environment
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The Supreme Court and the California Prison System
Posted by Tim Lynch
This morning the Supreme Court issued a remarkable ruling [pdf] concerning California’s prison system.   Because of years of pervasive overcrowding, there have been systemic violations of the Constitution’s ban on Cruel and Unusual Punishments.  To remedy those violations, the Court affirmed a lower court order to reduce the prison population.  I was not surprised to learn that Justice Anthony Kennedy authored the majority opinion in this case, Brown v. Plata. In a 2003 speech to the American Bar Association (reprinted in my book In the Name of Justice), Kennedy tried to raise more awareness about America’s prison system.  He made the point that every citizen ought to take an interest in the prison system–it is not just the realm of correctional personnel.  Here’s an excerpt from Kennedy’s speech:
The subject [of prisons] is the concern and responsibility of every member of [the legal] profession and of every citizen.  This is your justice system; these are your prisons. … [W]e should know what happens after the prisoner is taken away.  To be sure, the prisoner has violated the social contract; to be sure he must be punished to vindicate the law, to acknowledge the suffering of the victim, and to deter future crimes.  Still, the prisoner is a person; still, he or she is part of the family of humankind.
Were we to enter the hidden world of punishment, we should be startled by what we see. Consider its remarkable scale.  The nationwide inmate population today is about 2.1 million people.  In California … this state alone keeps over 160,000 persons behind bars.  In countries such as England, Italy, France, and Germany, the incarceration rate is about 1 in 1,000 persons.  In the United States it is about 1 in 143.
The numbers are only the beginning of the story.  Do not assume that the government has the facilities to house the prisoners that are sentenced.  California is housing far beyond the design capacity of its prisons–double. That is, it has designed a system for 80,000 but has stuffed 160,000 into the buildings.  The sheer number of inmates has overwhelmed the facilities and staff. Kennedy’s opinion details the abysmal conditions, but I will mention a few:
A corrections official from Texas toured California’s facilities and he testified that he has been in the field 35 years and was just appalled.  He’d “seen nothing like it.”
Four conservative justices–Scalia, Thomas, Roberts and Alito–dissented from the ruling.  Scalia said the outcome was “absurd” — “perhaps the most radical injunction issued by a court in our Nation’s history.”  Justice Alito said the Constitution “imposes an important–but limited–restraint on state authority in [the prison] field.  The Eighth Amendment prohibits prison officials from depriving inmates of ‘the minimal civilized measure of life’s necessities.’”  The conservatives concede, as they must, that the California prison system is really bad, but they argue that it is not yet so awful so as to warrant judicial intervention and a population reduction order.  Kennedy and the liberals in the majority (Breyer, Ginsburg, Sotomayor, and Kagan) make a persuasive case that California’s elected officials have had ample opportunity to address the systemic problems, but have let them fester year after year.
For related Cato work, go here and here.
Tim Lynch • May 23, 2011 @ 3:01 pm
Filed under: Law and Civil Liberties
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Don’t Let the Aphorism Be the Enemy of Thought
Posted by Andrew J. Coulson
I am often told that pointing out the serious shortcomings of government-funded school vouchers and the relative superiority of education tax credits is a case of “making the perfect the enemy of the good.”
It’s isn’t.
That is a misapplication of Voltaire’s famous aphorism. What the aphorism exhorts is that we not pursue an unattainable perfection when a good alternative is within reach. Education tax credits are not only attainable, they are usually easier to obtain than vouchers. Consider a recent example: Pennsylvania’s state House has voted 190 to 7 to expand its existing EITC tax credit program while the state Senate has been deadlocked for weeks looking for the bare minimum of votes to pass a voucher bill.
On top of that, it is dubious to cast vouchers as “the good” when they will expand the scope of compulsion of taxpayers to funding many new types of schooling to which they might well object, impose heavy new regulations on private schools (homogenizing the available “choices”), and more pervasively curtail direct payment by consumers in favor of third party government payment.
Even those who may not be fully convinced that vouchers are inferior should pause before trying to enact them in states that already have education tax credit programs with good growth prospects. Why make the dubious the enemy of the pretty darned good?
Andrew J. Coulson • May 23, 2011 @ 2:12 pm
Filed under: Education and Child Policy
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A ‘Special’ Relationship?
Posted by Christopher Preble
When President Obama meets with British Prime Minister David Cameron in London, they should focus on the two wars that involve both the U.S. and British militaries (Afghanistan and Libya). But these discussions will take place in the context of diminishing British military capability.
At a time when the United States should be shedding some of the burdens of policing the globe, and encouraging other countries to step forward to defend themselves, the British are moving in the opposite direction. They are cutting their military, and tacitly becoming more dependent upon U.S. power. The end result will be a United Kingdom that is less able to assist us in the future.
The United States today spends far more on its military than does the United Kingdom, and the gap is likely to grow. This is sure to have an impact on the U.S.-UK relationship.
The number of British troops, ships and planes that are available for missions has dropped and will continue to if Cameron pushes through significant cuts in British military spending. He has proposed actual cuts, not the slowing in the rate of growth that Obama and Defense Secretary Gates have presided over so far.
The special relationship has been cemented by the numerous occasions in which British and American leaders have cooperated to address common security challenges. The most important of these involve U.S. and British troops fighting side by side.
But shrinking British defense spending could strain the relationship.  The goodwill that has prevailed between the two countries could be in jeopardy, and Americans may find it harder to look upon the Brits as the “good” ally, the one that sticks by us through thick and thin. And if the American public grows disenchanted with British contributions to U.S.-led military missions, the British public may then hold less generally positive opinions of the United States.
A version of this post originally appeared in The National Interest Online.
Christopher Preble • May 23, 2011 @ 11:39 am
Filed under: Foreign Policy and National Security
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Religion in Service of the Welfare State
Posted by Roger Pilon
Here we go again: To read E.J. Dionne’s piece in the Washington Post this morning, you’d think that God Himself had ordained the modern welfare state. Dionne’s nominal target is the media for its failure to sufficiently cover John Boehner’s recent commencement address at the Catholic University of America. But his larger aim is to promote his reading of the proposition that “From the apostles to the present, the Magisterium of the Church has insisted that those in power are morally obliged to preference the needs of the poor.”
That’s from the opening paragraph of a letter to Boehner from a group of Catholic academics, including some leading members of the Catholic University faculty. It added, “Your record in support of legislation to address the desperate needs of the poor is among the worst in Congress.” And it singled out the House-passed Ryan budget for special condemnation, Dionne tells us, approvingly.
It’s hardly news, of course, that Catholics, along with other denominations, are divided on the “social justice” question. But as I wrote last month in the Wall Street Journal, the idea that Jesus taught that we should be forced, by government, to aid the poor is a serious misreading of Christian doctrine, to say nothing of the Decalogue. Virtue arises from voluntary actions, of which there is no shortage here in America — at least so long as the burdens of the welfare state don’t  crowd them out entirely. This use of the gospel to promote that state is not only unAmerican but unChristian as well.
Roger Pilon • May 23, 2011 @ 11:38 am
Filed under: Government and Politics
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Monday Links
Posted by George Scoville
Please join us this Wednesday, May 25 at 2:00 p.m. Eastern for a Policy Forum with former Minnesota governor Tim Pawlenty, “Limiting Government: What Washington Can Learn from Minnesota​,” with opening remarks from Cato founder and president Edward H. Crane. Governor Pawlenty received an “A” grade on Cato’s biennial “Fiscal Policy Report Card on America’s Governors: 2010,” by Cato director of tax policy studies Chris Edwards. Complimentary registration is required of all attendees by noon Eastern tomorrow, Tuesday, May 24​–seating is limited and not guaranteed. If you cannot join us in person, please join us on the web for a live video stream of the event.
Washington’s use of tax dollars to strong-arm states into adopting national standards and tests doesn’t leave much room for state choice in education​.
Did you know Cato has a series of 60 and 90-second radio ads about the Constitution that you can download for free?
“Unfortunately, suspicions about private property as a fundamental human right survive to this day, to the detriment of the coherence of human rights as a guiding political concept, and of fundamental freedoms and prosperity.” Read the rest of the new Cato Policy Report here.
What will happen if we do nothing, and let Medicaid, Medicare, and Social Security continue to grow?
George Scoville • May 23, 2011 @ 10:23 am
Filed under: Cato Publications
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Let Europe Be—and Defend—Europe
Posted by Doug Bandow
In the midst of difficult domestic political battles, Barack Obama begins a lengthy European trip today.  He should encourage the continent to increase its defense capabilities and take on greater regional security responsibilities.
Presidential visits typically result in little of substance.  President Obama’s latest trip will be no different if he reinforces the status quo.  His policy mantra once was “change.”  No where is “change” more necessary than in America’s foreign policy, especially towards Europe.
Despite obvious differences spanning the Atlantic, the U.S. and European relationship remains extraordinarily important.  The administration should press for increased economic integration, with lower trade barriers and streamlined regulations to encourage growth.
At the same time, however, Washington should encourage development of a European-run NATO with which the U.S. can cooperate to promote shared interests to replace today’s America-dominated NATO which sacrifices American interests to defend Europe.  Americans no longer can afford to defend the rest of the world.  The Europeans no longer need to be defended.
Although World War II ended 66 years ago, the Europeans remain strangely dependent on America.  Political integration through the European Union has halted; economic integration through the Euro is under sharp challenge; and military integration through any means is reversing.
Indeed, the purposeless war in Libya, instigated by Great Britain and France, has dramatically demonstrated Europe’s military weakness.  Despite possessing a collective GDP and population greater than that of America, the continent’s largest powers are unable to dispatch a failed North African dictator.
President Barack Obama starts with visits to Ireland,  the UK, and France.  In the latter he will consult with the heads of the G8 nations, which include Germany and Italy.
His message should be clear:  while America will remain politically and economically engaged in Europe, it will no longer take on responsibility for setting boundaries in the Balkans, policing North Africa, and otherwise defending prosperous industrial states from diminishing threats.  Washington should expect the continent to become a full partner, which means promoting the security of its members and stability of its region.
The president should deliver a similar message when he continues on to Poland.  Part of “New Europe,” which worries more about the possibility of revived Russian aggression, Warsaw has cause to spend more on its own defense and cooperate more closely with its similarly-minded neighbors on security issues.
In fact, Poland, Slovakia, Hungary, and the Czech Republic, members of the “Visegrad Group,” recently announced creation of a “battle group” separate from NATO command to emphasize regional defense.  The president should welcome this willingness to take on added defense responsibilities.
Doug Bandow • May 23, 2011 @ 10:10 am
Filed under: Foreign Policy and National Security
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Communitarians and Libertarians
Posted by David Boaz
Communitarian “guru” Amitai Etzioni debated Roger Pilon at Cato two weeks ago. Also me, 18 years ago. And last week he had two postings at the Encyclopedia Britannica blog. I offer some thoughts on individualism, communitarianism, and implausible misrepresentations of libertarianism at the Britannica today.
When I hear communitarians like Etzioni describe the libertarian view of individualism, I wonder if they’ve ever read any libertarian writing other than a Classic Comics edition of Ayn Rand….
There’s no conflict between individualism and community. There’s a conflict between voluntary association and coerced association. And communitarians dance around that conflict.
Do you believe that “The libertarian perspective, put succinctly, begins with the assumption that individual agents are fully formed and their value preferences are in place prior to and outside of any society”? Of course not. Who would? Read the Britannica column to find out who says you do.
David Boaz • May 23, 2011 @ 10:09 am
Filed under: Political Philosophy
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Why Budgets Are Busted
Posted by David Boaz
Three stories in today’s Washington Post help us to understand why governments around the world are facing unmanageable deficits. On the front page:
When Prime Minister Jose Luis Rodriguez Zapatero took power seven years ago, he and his Socialist Workers’ Party set out to perfect the welfare state in Spain. The goal was to equal— or even surpass — lavish social protections that have long been the rule for Spain’s Western European neighbors.
True to his Socialist principles and riding an economic boom, Zapatero raised the minimum wage and extended health insurance to cover everything from sniffles to sex changes. He made scholarships available to all. Young adults got rent subsidies called “emancipation” money. Mothers got $3,500 for the birth of a child, toddlers attended free nurseries and the elderly got stipends for nursing care.
On page 3, a story about federal pensions, which still offer federal employees
a benefit lost long ago by many workers at private companies — a guaranteed retirement check paid largely by the boss.
These traditional pensions, called defined-benefit plans, have long been an attractive feature of government work.
On the op-ed page, George Will notes that in 1975 then-governor Jerry Brown said that his plan was
To stand up to the special pleaders who are encamped, I should say, encircling the state capitol, and to see through their particular factional claims to the broad public interest.
Three years later, “Brown conferred on government employees the right to unionize and bargain collectively.” Now, from prison guards to teachers, the public employee unions press for unaffordable spending and block efforts at reform. And again-governor Jerry Brown would rather raise taxes than stand up to the unions that helped elect him.
As has been noted many times, politicians spend all the money that comes in when times are good. They don’t put anything aside for the possibility of lean years. And they make commitments, like pensions and collective bargaining agreements, that will prove to be fiscal time bombs, exploding long after the next election. It looks like the long run is here.
David Boaz • May 22, 2011 @ 12:11 pm
Filed under: General; Government and Politics; Tax and Budget Policy
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The IMF—A Reading List
Posted by Ian Vasquez
Now that Dominique Strauss-Kahn has resigned as head of the International Monetary Fund, the debate has turned to who will lead the lending agency as it goes through its usual non-transparent and politicized selection process. (Of course, virtually all decisions at the IMF are politicized since it is primarily a political institution, a club in which rich countries’ governments with diverse interests and political priorities typically lend money to governments with track records of mismanaging their economies.)
The IMF is a fundamentally flawed institution, a problem independent of whether the new Fund chief is French or South African. Here’s a brief reading list for anybody more interested in the scandal of IMF lending than of the scandals of IMF personalities.
Ian Vasquez • May 20, 2011 @ 5:08 pm
Filed under: Finance, Banking & Monetary Policy; International Economics and Development
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An Accounting of Indiana’s Voucher Regulations
Posted by Adam Schaeffer
I’ve been trying to draw attention to the dangers that regulations like those in Indiana’s new voucher program pose for long-term educational freedom and choice.
It’s a difficult thing to do, in part because we have little freedom at all in the public school system that educates the vast majority of kids. Destroying the independence and diversity of the private education sector seems a reasonable risk to run for many if it means more choice for the majority of families. I disagree, and think that we’ll trade the possibility of a dynamic and innovative market in education for a new era of stagnant secular and religious public schools.
The other difficulty in explaining the threat of regulations like those in Indiana’s voucher law is that it is a complicated bill, linked to complicated existing state code.
In the interest of clarity and transparency, I’ve uploaded a two-page overview of the regulations, with citations and links for those who would like to take a look themselves. You can access it here: Regulations Associated with HB 1003 Indiana—2011-05-20
Let me know what you think, and whether I have missed or misinterpreted anything.
Matt Ladner replied to my concerns recently with some interesting qualifications and questions. He notes, “I haven’t seen an example yet of a voucher program in the United States swallowing up the private school sector and homogenizing them, but I agree that it is possible and a grave concern.”
The primary reason we haven’t seen this yet is that these programs have all been too small and constrained by funding caps. And that’s the problem with the Indiana plan and other plans to expand heavily regulated voucher programs; the better they are on coverage and access, the more devastating the consequences for educational freedom.
I find it horrifying to contemplate looking back 15 years from now at this moment of great opportunity and realize that, in the pursuit of choice, we imported the dysfunctions of government education and top-down control into the private sector and reduced both choice and freedom in the process.
Adam Schaeffer • May 20, 2011 @ 5:01 pm
Filed under: Education and Child Policy
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Turns out State Schooling Isn’t Communist after all…
Posted by Andrew J. Coulson
Albert Shanker, long-time head of the American Federation of Teachers union, said back in 1989 that:
It’s time to admit that public education operates like a planned economy, a bureaucratic system in which everybody’s role is spelled out in advance and there are few incentives for innovation and productivity. It’s no surprise that our school system doesn’t improve: it more resembles the communist economy than our own market economy.
But hang on a minute! Doesn’t the following description sound a lot like the work rules in our public schools:
Promotion was determined by the Table of Ranks…. An official could hold only those posts at or below his own personal rank…. [S]tandard intervals were set for promotion: one rank every three years from ranks 14 to 8; and one every four years from ranks 8 to 5…. This meant that, barring some heinous sin, even the most average bureaucrat could expect to rise automatically with age…. The system encouraged … time-serving mediocrity
That, ladies and gentleman, is not a description of the work rules of the communist-era Russian bureaucracy. It describes the rules in the Tsarist Russian bureaucracy (see Orlando Figes, “A People’s Tragedy,” p. 36).
The funny thing is, according to Figes, “By the end of the [19th] century, however, this system of automatic advancement was falling into disuse as merit became more important than age.”
So the modern U.S. system for promoting public school teachers was discarded as inefficient and unworkable… by the Tsars.
Andrew J. Coulson • May 20, 2011 @ 4:36 pm
Filed under: Education and Child Policy
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The End of the War Powers Resolution
Posted by John Samples
Today is the 60th day since President Barack Obama notified Congress “U.S. military forces commenced operations to assist an international effort authorized by the United Nations (U.N.) Security Council and undertaken with the support of European allies and Arab partners, to prevent a humanitarian catastrophe and address the threat posed to international peace and security by the crisis in Libya.”
The War Powers Resolution of 1973 said that within 60 days of notifying the Congress of the use of force “the President shall terminate the use of United States Armed Forces” unless Congress has declared war or authorized the use of force, extended the 60 day period, or is physically unable to meet because the nation has been attacked.
President Obama has a few hours to go, but I doubt that he will stop American air attacks in Libya. Indeed, the attacks have spread to Libyan ships to counter Qadaffi’s forces.
Like earlier presidents, Obama said his notification of hostilities in Libya was “consistent with the War Powers Resolution.” Now the administration has apparently decided to ignore the law completely. Obama has not sought congressional approval for the bombing. He follows the example of Bill Clinton, who ordered air strikes in Bosnia in 1995 without seeking congressional approval.
Read the rest of this post »
John Samples • May 20, 2011 @ 4:32 pm
Filed under: Government and Politics; Law and Civil Liberties; Political Philosophy
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Progress toward Marriage Equality
Posted by David Boaz
The Gallup Poll reports today, “For the first time in Gallup’s tracking of the issue, a majority of Americans (53%) believe same-sex marriage should be recognized by the law as valid, with the same rights as traditional marriages.”
Here’s the history of Gallup’s polling on the issue:
Gallup notes that the shift results from a substantial increase in support among Democrats and independents in the past year, but support among Republicans didn’t budge from 28 percent. The most striking number, though, is that support among young people 18-34 soared from 54 to 70 percent, mostly reflecting a shift among men, who are now almost as supportive as women.
The new poll comes just two days after Cato’s forum, “
The Case for Marriage Equality: Perry v. Schwarzenegger
,” featuring the prominent lawyers David Boies and Theodore Olson, who represent the plaintiffs in a lawsuit seeking to strike down California’s Proposition 8. Find video of the event here. The event also featured Robert A. Levy of the Cato Institute and John Podesta of the Center for American Progress, co-chairs of the advisory board of the American Foundation for Equal Rights, sponsor of the lawsuit.
Read their Washington Post op-ed
on the case.
David Boaz • May 20, 2011 @ 2:51 pm
Filed under: Government and Politics; Law and Civil Liberties
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Friday Links
Posted by George Scoville
How to identify as a leftist totalitarian​.
How to reinforce the status quo in the Middle East peace process.
How to learn and understand the Founders’ intent for the United States.
How to save billions of dollars annually and reduce the deficit:
George Scoville • May 20, 2011 @ 1:02 pm
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Will Obama Comply with the War Powers Resolution?
Posted by Christopher Preble
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.
Christopher Preble • May 19, 2011 @ 4:49 pm
Filed under: Foreign Policy and National Security; General; Government and Politics
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Fiscally Conservative, Socially Liberal Virginians
Posted by David Boaz
The Washington Post just did a major poll of Virginians and tantalizingly included this note in writing up the results:
In contrast to four years ago, about as many Virginians consider themselves to be liberal on social matters as call themselves conservative. Fiscal conservatism is on the rise, but on these social issues, it’s liberalism that’s ticked higher.
But those questions were not included in the published data. Thanks to the generosity of Post polling director Jon Cohen, I can report that the percentage of Virginians who said they were socially liberal or moderate and fiscally conservative went from 16 in 2007 to 23 in the latest poll. This reflects a small increase in the number of social liberals and a larger increase in the number of fiscal conservatives. And here are the tables on those questions:
We’ve written about fiscally conservative, socially liberal voters before, notably here and here, and in relation to Virginia and in the Republican party. Apparently when you ask people, “Would you describe yourself as fiscally conservative and socially liberal?”, you get a higher percentage than when you ask the questions separately, as the Post did. When the Zogby Poll asked that question to actual voters in 2006, fully 59 percent said yes. Broader background on the “libertarian vote” here.
David Boaz • May 19, 2011 @ 3:43 pm
Filed under: Government and Politics
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UPDATE: Liu Cloture Fails
Posted by Ilya Shapiro
This morning I outlined the stakes of today’s seminal cloture vote on Goodwin’s Liu’s nomination to the Ninth Circuit.  Well, now we have a result: cloture failed 52-43, with Senator Ben Nelson (D-NE) joining all voting Republicans except Lisa Murkowski (R-AK) against cloture. Three Republicans plus Max Baucus (D-MT) were absent, while Orrin Hatch (R-UT) voted present because of his previous strong position against filibusters.
This is the first judicial nominee filibustered since the Gang of 14 brokered an agreement on President Bush’s nominees in 2005, forestalling then-Senate Majority Leader Bill Frist’s use of the so-called nuclear option (changing Senate rules to eliminate the judicial filibuster).  That agreement, to the extent it’s even still valid given the changed composition of the Senate (and with five of the 14 Gang members no longer in the Senate), allowed filibusters only in “extraordinary circumstances,” leaving that term undefined.
And so we may have just have witnessed the re-ignition of the war over judicial nominees.  Stay tuned as to whether today’s vote will come to signify the “Water-Liu”—h/t Walter Olson—for one party or another, or for our judiciary.
Ilya Shapiro • May 19, 2011 @ 3:21 pm
Filed under: Government and Politics; Law and Civil Liberties
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The Consequences of Our War on Low-Skilled Immigrant Labor
Posted by Daniel Griswold
Credit: Chiapas state government website
Authorities in Mexico intercepted two semi-trucks on Tuesday containing more than 500 migrants being smuggled across the border from Guatemala and presumably headed for the United States. An x-ray of one of the trucks that revealed the migrants struck me for its resemblance to those 18th century woodcarvings of slave ships crossing the Atlantic.
That analogy shouldn’t be taken too far, of course. According to the news reports, the migrants voluntarily paid $7,000 each for the chance to be smuggled into the United States. But like the slave ships, the conditions in the trucks were horrific, putting the lives of the men, women and some children in real danger.
People across the spectrum will try to make hay from this, but to me it argues that the status quo is unacceptable. No respectable party is in favor of illegal immigration. The real debate is over how to reduce it and all the underground pathologies that accompany it.
We can continue to ramp up border and interior enforcement, as we have relentlessly for more than a decade, driving low-skilled migrants further underground while driving smuggling fees higher and higher. Or we can expand opportunities for legal entry into the United States, and by doing so shrink the underground network of smuggling and document fraud.
Like the repeal of Prohibition in 1933, real immigration reform would go a long way to eliminating the human bootlegging that was exposed in Mexico this week. A robust temporary worker program would allow foreign-born workers to enter the country in a safe, orderly, and legal way through established ports of entry. It would allow resources now going to smugglers to be collected as fees by our government and otherwise put to work in our economy. It would save the lives of hundreds of people who needlessly die each year trying to re-locate for a better job.
If Congress enacted the kind of immigration reform we have long advocated in my department at Cato, our economy would be stronger and the human smuggling networks a lot less busy.
Daniel Griswold • May 19, 2011 @ 2:48 pm
Filed under: General; Trade and Immigration
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