Archives: 05/2006

United They Fall…

…at least in popularity, that is. The AP is reporting on the Bush-Blair summit today with the headline “Besieged Bush, Blair to talk about Iraq.” The two leaders have seen their popularity plummet as a result of the Iraq war, with the crowning acknowledgement coming from Karl Rove at AEI recently, where Rove remarked on the president’s record low poll numbers by saying, “People like this president…They’re just sour right now on the war.”

Sour indeed. And as my colleagues Chris Preble and Jonathan Clarke point out in press releases and a podcast here, unless Bush and Blair can conjure a miracle in Iraq, they’re likely going to stay in the cellar, popularity-wise.

My other colleague, electoral guru John Samples, argued here that Bush should have done much better in the ‘04 election than he did, and that the culprit was – you guessed it – Iraq.

Abusing the Idea of Free-Market Health Care Reform

At about 6 pm yesterday, I received an invitation to a Heritage Foundation event titled, “Another Step forward for Free-Market Health Care Reform.” The event was anything but.

Heritage hosted Rep. Mike Rogers (R-MI), who proposes to allow health savings accounts in Medicaid. In the book Healthy Competition and elsewhere, Cato scholars have explained that Medicaid HSAs are not a free-market health care reform and instead distract Congress from reforming Medicaid the way it reformed welfare in 1996.

In fact, Rep. Rogers proposed a number of non-free-market health reforms:

  • Expanded federal regulation of the health insurance markets (a.k.a. “association health plans”)
  • Federal health information technology reforms
  • Federal malpractice liability reform

Rep. Rogers concluded his opening remarks by saying that health care “is the one place where we know how to tinker, we know where to tinker, [and] now we just [need to] have the will to tinker.”

I demur. Free-market reforms reduce the influence of government over the economy. The proposals offered by Rep. Rogers do the opposite. Then again, I have only listened to the Heritage event. I have not seen the most recent iteration of Rep. Rogers’ legislation, which is not yet available online. I hope Rep. Rogers or someone from the Heritage Foundation will explain what makes Medicaid HSAs (or the other proposals) a free-market health care reform.

What’s the Big Idea?

I’ll be taking part tomorrow in the Hudson Institute’s 2006 Bradley Symposium. Entitled “What’s the Big Idea? True Blue versus Deep Red: The Ideas that Move American Politics,” the event features, in addition to yours truly, a who’s who of Washington intellectual heavyweights: Michael Barone, David Brooks, Francis Fukuyama, Bill Kristol, Charles Murray, and Shelby Steele, among others.

The discussion’s point of departure will be this paper by University of Virginia political scientist James Ceaser. Ceaser argues that the current red vs. blue political divisions reflect deep-seated and profoundly important differences over the sources and nature of social order.

My short take: I agree with Ceaser that such differences exist, but I disagree that it is useful to shoehorn the various alternatives into just two rival camps. Doing so allows Ceaser to cast contemporary politics as a contest between nihilism on the left and conservatism of some kind or another on the right. Ceaser thus frames the debate in a way that, in my view, unfairly favors the right.

Here’s another typology that I think is closer to the mark: one noisy minority of nihilists on the “true blue” left, another noisy minority of dogmatists on the “deep red” right, and the rest of us moping and groping around in a politically underrepresented center. From this perspective, the main problem with American politics today isn’t the unhinged left. Rather, it’s the disproportionate influence of culture warriors on the left and right alike—and the outmoded political categories that allow the cultural extremes to lord it over the center.

Toughman Contest

U.S. News has an interesting profile of David Addington, Vice-President Cheney’s chief of staff and top legal adviser—a key player in administration debates over torture, domestic detention, and NSA surveillance. One thing that stood out for me was this description of the social dynamic at work when administration lawyers crafted War on Terror policies:

Whether or not he became the de facto leader of the group, as some administration officials say, Addington’s involvement made for a formidable team. “You put Addington, Yoo, and Gonzales in a room, and there was a race to see who was tougher than the rest and how expansive they could be with respect to presidential power,” says a former Justice Department official. “If you suggested anything less, you were considered a wimp.”

For background on the legal theories that emerged from that environment, see here.

Congress’ Sudden Concern for Overly Aggressive Policing

While the leaders of Congress were wringing their hands over a corrupt colleague having his office raided by FBI agents in suits, a drug task force in Wisconsin needlessly terrorized two completely innocent people last night. From Dodgeville, Wisconsin:

Members of a drug task force burst into a Dodgeville apartment Monday night and arrested two people before officers realized that they were in the wrong apartment.

Richland-Iowa-Grant Drug Task Force members entered the apartment about 10:15 p.m. and arrested its two occupants in what police considered a “high-risk” drug bust, according to the Dodgeville Police Department. Minutes later, they realized that they were in the wrong place and released the occupants.

[…]

Task Force Director Lt. Scott Marquardt said the task force was reviewing what led to the accidental arrests. He said the task force was sorry for what happened to the innocent neighbors.

“We’re very disappointed,” Marquardt said. “We regret the stress and the inconvenience that we caused. That’s not how we do business.”

From research I’ve done for a forthcoming Cato paper, I’d estimate these types of “wrong door” raids are reported in the media 2-3 times per month in the U.S. (it’s likely that they happen and go unreported much more frequently). Most of the time, victims escape with no worse than a broken door and a fractured psyche. Many times, they end up injured. And once or twice a year, an innocent person ends up dead.

With its tireless support for the drug war, and its policy of making surplus military equipment from the Pentagon available to local police departments, Congress is responsible for an explosion of SWAT teams across the country, and a massive increase in the number of times these teams are deployed on such “no-knock” raids. Drug warrant service now comprises the overwhelming majority of SWAT team “call-outs” in America.

So before congressional leaders fret over the “unduly aggressive,” “intimidating” raid of a sitting member’s office, they ought to look into how their own policies have led to police kicking down the doors of dozens of innocent or nonviolent drug offenders in their homes each day in this country.

They could start by Googling “Alberta Spruill,” “Clayton Helriggle,” or “Alberto Sepulveda.”

Trimming Government for Dummies

Polls show voters generally believe the federal government is not on the right track. Runaway spending is a chief concern.

A new report shows “extensive fraud” at Fannie Mae.

Options for the GOP Congress:

(a) Forget this news story and look for creative ways to increase popularity with likely voters. Maybe a congressional resolution that will call for Barbaro’s speedy recovery.

(b) Act on today’s report. Issue scores of news releases denouncing fraud.

(c) Schedule a hearing after the summer recess “to get to the bottom of these allegations.”

(d) Trim the government. Now.

Memo to Congress: Choose (d). It would be good politics and good policy.

Memo to the White House: If Congress chooses (d), this would not be the right moment for Mr. Bush to use his veto for the first time. That would be bad politics and bad policy.

Don’t Tread on My Legislative Privilege

Tongue implanted in cheek, David congratulates Congress for finally finding an illegal exercise of executive power to condemn: an FBI raid on Rep. Jefferson’s offices. However, congrats may be premature, because it’s not entirely clear whether the raid is illegal.

(Usual warning: Lengthy lawyer parsing follows. Proceed at own risk. Short version: there are some good arguments that the FBI raid is illegal, but the case law is far from clear on this point.)

The Speech and Debate Clause provides:

Senators and Representatives … shall in all Cases, except Treason, Felony, and Breach of Peace, be privileged from Arrest during their Attendance at the session of their respective Houses, an in going to and returning from same; and for any other Speech and Debate in either House, they shall not be questioned in any other Place.

Jefferson is under investigation for bribery. Congress itself has expressly made it a crime for members of Congress to accept bribes (18 U.S.C. s. 201). The Supreme Court has held (in United States v. Johnston, 383 U.S. 169 (1966)) that the Speech and Debate Clause does not absolutely immunize members of Congress from prosecution under a valid bribery statute (enacted, remember, by Congress).

To be sure, the Court held that some acts are “immune” from prosecutorial snooping even under a valid bribery statute—that is, they cannot constitute part of the evidence on which the prosecution relies. But, the Supreme Court has held this immunity applies only to the following: (1) “legislative acts”—those generally done in the process of enacting legislation” (United States v. Brewster, 408 U.S. 501, 514 (1971), which includes making speeches on the floor of a House of Congress or in committee, voting on the floor or in committee, contributing to reports entered into the legislative record; (2) other acts that are “integral” to deliberation connected to legislative acts. (Gravel v. United States, 408 U.S. 606, 625 (1972)).

That means a host of legislative business unrelated to enactment of specific legislation—from petitions to agencies on behalf of constituents, to ordinary constituent meetings, to speeches in the home district, at Washington galas, or what have you—are not privileged “legislative acts” and therefore can serve as a basis for prosecution. That also means preparation that goes into these sorts of activities also isn’t privileged. The upshot: many papers and effects contained in Jefferson’s office might be searchable by federal investigators pursuant to a valid warrant. (Caveat: I haven’t pursed the allegations against Jefferson).

Assuming they are searchable, that doesn’t settle the conditions on executive entry onto the physical grounds of Congress, on which these papers are located. The privilege appears to attach to acts, not places. Hence the grounds of Congress themselves aren’t privileged. And the Constitution doesn’t tell us the conditions attached to executive entry into the Houses of Congress, pursuant to a valid warrant.

I haven’t yet seen any recent cases on this point, although I confess I haven’t done much searching. In ordinary Fourth Amendment law, searches of homes, for example, are subject to different rules than searches of cars or searches of persons on the street. For example, police must knock and announce themselves prior to executing a valid search warrant for a domicile. It seems reasonable that some restrictions on entry should also apply when police are seaking evidence related to non-legislative acts on the grounds of (the “home” of) Congress.

That’s consistent with the cases on legislative privilege: Arguably, for example, Congress’s institutional control over the physical integrity of the grounds of Congress is essential to legislative deliberation. Surely, for example, unannounced raids or, say, the fear of unknown FBI bugs and wiretaps could chill legislative deliberation. These concerns suggest the legislative privilege requires an analogue to the knock-and-announce rule. For example, perhaps executive officers should notify House or Senate leadership and Capitol police of intent to execute a valid search warrant prior to entering Capitol grounds. Since separation of powers concerns come into play, there may be an argument that more should be required than would be required in an ordinary domicile search: perhaps, for example, congressional leadership may require executive officers to be accompanied by Capitol police, at least absent exigent circumstances.

I’m not sure whether it would require even more than this (for example, require Captiol police themselves to execute the search). Arguably, participation of Capitol police may be essential to the institutional integrity of Congress and therefore to legislative deliberation, but exclusive congressional control over all aspects of investigation on Capitol grounds isn’t. And, after all, the Framers—by exempting certain crimes from the privilege of arrest—clearly intended to balance institutional integrity of Congress with the larger principle that no branch is above the law and its offices.