Archives: May, 2006

Border Enforcement without Reform is Doomed to Fail

The news media are playing up President Bush’s proposal, to be unveiled in an Oval Office speech tonight, to send National Guard troops to stop illegal immigration across our 2,000-mile border with Mexico. The real news is that the president and the Senate are about to work together to pass real immigration reform, including a new temporary worker program and a path to legalization for the millions of undocumented workers already here. The Cato Institute laid out the intellectual argument for such an approach in two major studies, Willing Workers and Backfire at the Border.

The large majority of workers here illegally have come for the same reasons immigrants have come to our shores throughout our history, to build a better future for themselves and their families–and to help us build a stronger U.S. economy in the process. Our economy continues to create hundreds of thousands of new jobs each year for low-skilled workers, while the supply of native-born Americans willing to fill those jobs continues to shrink. The American workforce is getting older and better educated. Yet our immigration system has no legal channel for a peaceful, hardworking person from Mexico or other countries to enter our country legally to fill those jobs.

Two decades of ramped-up enforcement have failed to fix the problem. We’ve increased spending on border enforcement 10-fold, we’ve built walls for miles into the desert, and we’ve raided hundreds of U.S. business from coast to coast. Yet the number and inflow of illegal workers just keeps growing. We need an immigration system that reflects the realities of American society and the American economy. A program to legalize millions of workers would allow the U.S. government to concentrate its enforcement on the real criminals and terrorists trying to sneak into our country.

It’s good news that President Bush and a majority of Senators seem to understand that enforcement without reform is doomed to fail.

Can We Negotiate with Odious Regimes?

It appears that in the case of Libya, the answer is yes.

After more than twenty years, the US is restoring normal diplomatic relations with the regime of Muammar Khaddafi. Well before the Iraq War, the US government had opened a diplomatic dialogue with Tripoli to work toward dismantling its WMD programs. The two reached an agreement, and have now normalized relations. This notwithstanding the fact that Mr. Khaddafi’s government remains rather ugly and reprehensible in ways too numerous to count.

It’s a lesson we should keep in mind, particularly with respect to certain other US relationships in the news today.  We can negotiate with odious regimes.

And sometimes, good can come of it.

NSA déjà vu again

With his usual precision, my colleague Bob Levy, in his latest NSA post, has zeroed in on the basic question I put to him: “How can Congress, by mere statute, restrict an inherent power of a co-equal branch of government?” He grants that the president has inherent powers; but so does Congress, he adds, and if Congress expressly restricts the president’s powers, as with FISA, that “is persuasive when deciding whether the president has overreached.”
 
Not so fast. The problem with that is that the branches are then no longer “co-equal.” Rather, Congress is supreme, the president its mere agent—precisely the point I made in our recent debate when I spoke of Congress’s post-Vietnam rewrite of the Constitution in foreign affairs, much as the New Deal Congress did with domestic arrangements.
 
Bob points more precisely, however, to the Necessary and Proper Clause as the source of Congress’s power over the president. But that clause—to reduce a very complex issue to its essence—was written, in the context of the Articles of Confederation, to enable Congress to give effect to its and the other branches’ enumerated powers. As Chief Justice Marshall said in McCulloch v. Maryland (1819), the clause authorizes means that are “really calculated to effect any of the objects entrusted to the government,” like surveillance for national security purposes. When that power is used “improperly” to restrict the inherent power of another branch, serious separation-of-powers issues arise.
 
Congress does have a power to accomplish that end, however: It’s the power of the purse. It can simply cut off funds for projects—yet even here there are separation-of-powers questions that courts have never resolved. Given that the public seems to support the NSA program by 2 to 1, however, Congress is not likely to do that. This leaves us with Fourth Amendment issues, and as I said last time, that’s the business of the courts.
 
Two quick final points on Bob’s most recent post: First, the “parade of horribles” he presents—detention, tribunals, etc.—raises complex treaty and international law issues that are quite different, requiring separate analysis. Second, the animating sentiment at the time of the founding may have been fear of executive power—return of the king. By the time of the framing, however, after 11 years of experience with self-government, the Framers had a far more subtle understanding. As Madison put it in the Virginia ratifying convention, “The sword is in the hands of the British King. The purse is in the hands of the Parliament. It is so in America, as far as any analogy can exist.”

No Courage Behind Global Warming Convictions

The House is expected to vote as early as Wednesday on a resolution that decries the dangerous threat posed by rising industrial greenhouse gas emissions. The resolution calls for an emissions cap on greenhouse gases as long as (i) the cap doesn’t harm the U.S. economy, and (ii) U.S. trading partners agree to live under a similar cap.

While the Greens are quite exited that the GOP seems prepared to go along with this, these things are called “resolutions” for a reason - they echo promises made on New Year’s Eve. In short, it’s nothing but a statement that the Congress thinks that this would be a good idea, but that they are unprepared (at the moment) to do anything about it.

Does this represent progress for the enviros? Not really. Show me an emissions cap that won’t have a negative effect on the economy and I’ll show you an alterantive reality where up is down, black is white, and rivers are made of liquid chocolate. Now, depending upon the nature of the cap and the regulations attached thereto, the negative economic impact might be very modest or rather signficant. But ruling out caps that have any negative economic impact is to essentially rule out a cap.

Frank O’Donnell, head of the Left’s Clean Air Watch, was not too far off the mark when he was quoted in the subscription trade journal Energy & Environment Daily this morning as noting that “The way [the resolution] is worded, you’d have to be a kook to be opposed to it.” Indeed, who would object to what is in effect an insurance policy with no premium?

If the Greens really think that global warming is serious, they are demonstrating both political and intellectual cowardice by backing pablum like this. All this resolution would accomplish is to allow politicians to claim environmental virtue from empty political gestures.

So why would the enviros provide an easy out for politicians who want to appear Green but not do anything real to advance the Green agenda? Because it’s the best the enviros can do right now. That speaks volumes. This is a resolution that advertises Green political weakness, not Green political strength.

The resolution, then, is pretty meaningless. That having been said, you don’t have to be a “kook” to be skeptical about all the “doom, doom I say” hand-wringing that litters the resolution. That is, unless you think a Vice President of the U.N.’s oft cited International Panel on Climate Change is a kook. And if you do, what does that say about the merit of that much-worshiped body of scientific experts?

Against the “Happy State”

Writing last week in the Telegraph, University of Kent sociologist Frank Furedi argues that “Back in the 1940s and ’50s, the big idea was the Welfare State. Today it is the Happy State.” Furedi, noting that there is more to a good life than mere feeling, is skeptical of the push to apply “happiness research” to politics and policy:

In reality, neither experts nor clever policies can make people genuinely happy. Freud may have been a little cynical when he suggested that his objective was to “convert neurotic misery into ordinary unhappiness”. But he understood that true happiness was an ideal that we pursue but rarely achieve. Nor is that a problem. A good life is not always a happy one. People are often justified in being unhappy about their circumstances and surroundings. Discontent and ambition have driven humanity to confront and overcome the challenges they faced. That is why people like the Controller in Brave New World want us live on a diet of “feelies” and “scent organs”. That is also why we should be suspicious of experts who seek to colonise our internal life.

It’s a thoughtful piece, worth reading.

Topics:

Microsoft and Big Brother

Microsoft has agreed to remain under Justice Department supervision until 2009, to ensure that it continues to be forced to give away its property to competitors. (That is, it will continue “to provide access to Windows communications code that would let competitors write software to link with Windows-powered personal computers with the same facility as servers using Microsoft software.”)

Given the relative success of Microsoft and the U.S. government when it comes to innovation, help for the American economy, and customer satisfaction, it would probably make more sense to put the U.S. government under Microsoft’s supervision until 2009.

NSA Redux

In his latest posting, my colleague Roger Pilon restates several of his arguments in defense of the NSA’s warrantless domestic surveillance.  Each of Roger’s points has been addressed in detail in our recent debate and in my Senate testimony.  For those who prefer a nutshell version of my response, here it is:

Roger asks, “How can Congress, by mere statute, restrict an inherent power of a co-equal branch of government …?”  I do not dispute that the president has inherent powers, especially during wartime.  The question is not the existence, but rather the scope, of those powers.  And because Congress too has wartime powers, an express restriction by Congress, like the FISA statute, is persuasive when deciding whether the president has overreached. 

Indeed, the Constitution specifically authorizes Congress to shape the  president’s inherent powers.  Article I, section 8 empowers Congress to “make all Laws which shall be necessary and proper for carrying into Execution … all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” 

If, as Roger insists, warrantless domestic surveillance is incidental to the president’s inherent powers, so too are sneak-and-peek searches, roving wiretaps, library records searches, and national security letters – all of which were vigorously debated in deciding whether to reauthorize the Patriot Act.  Could the president have proceeded with those activities even if they were not authorized by Congress?  If so, what was the purpose of the debate?  Why do we even need a Patriot Act? 

President Bush has also asserted “inherent powers” to justify military tribunals without congressional authorization, secret CIA prisons, indefinite detention of U.S. citizens, enemy combatant declarations without hearings as required by the Geneva Conventions, and interrogation techniques that may have violated our treaty commitments banning torture.  Are those activities outside the president’s wartime authority?  If not, what are the bounds, if any, that constrain his conduct?

The animating sentiment at the time of the founding was fear of executive power – return of the king.  Against that backdrop, it’s remarkable that the president, with Roger’s apparent approval, now claims to wield unilateral powers with no safeguards – in effect, an irrebuttable presumption of authority, unfettered by Congress or the courts, to do just about anything that he pleases in battling terrorists.