Archives: 09/2009

An Open and Honest Debate About Drug Policy in El Paso, Texas

El PasoLast January, the city council of El Paso, Texas, unanimously approved a resolution urging the federal government to support “an honest, open, national debate on ending the prohibition on narcotics.” Soon afterwards, the mayor of El Paso received a call from Washington, DC demanding that he veto the resolution, otherwise his city would be cut off from some federal money. He did. However, the city council approved a new resolution calling for a conference assessing U.S. drug policy and the War on Drugs.

That led to the University of Texas at El Paso (UTEP) organizing a two-day conference on the 40th anniversary of the War on Drugs with leading experts from all over the world in the field of drug policy. The event was heavily attended by students, journalists and people interested in the subject. I had the chance to speak on the first panel, addressing the “History, Successes and Failures” of the War on Drugs. Not surprisingly, I failed at pointing out a single success from the current prohibitionist approach to drug policy. A summary of that first panel is available here.

Unfortunately, two Obama czars (on border and drugs) called off their participation just days before the conference. It was a missed chance to find out if there’s any change going on with the new administration regarding drug policy. In his opening remarks, Beto O’Rourke, the city councilman who introduced the original resolution that was later vetoed, said that he never imagined that calling for an “open and honest debate” on drug policy was going to be so controversial.

El Paso is at the crossroads of the War on Drugs. One of the safest cities in the Unites States, it’s just across the Rio Grande from one of the most dangerous cities in the world, Mexico’s Ciudad Juárez, where so far this year more than 1,000 people have died in drug related violence. El Paso is not isolated from this carnage. Both cities are deeply intertwined economically, culturally and by blood ties. “Todos somos juarences” (we are all Juarezians) was the most common phrase from residents of El Paso expressing concern about the situation in their sister city.

Needless to say, the participants at the conference were highly critical of the War on Drugs. Some speakers focused on the empirical evidence coming from countries with flexible drug laws, such as the Netherlands and more recently Portugal. Luis Astorga, a professor at the Autonomous University of Mexico (UNAM) gave an interesting presentation on the history of drug cartels in Mexico. Other presentations dealt with the social consequences of prohibition, and how the War on Drugs is affecting communities in Mexico and the United States.

As I’ve written earlier, in Latin America there have been growing calls in recent months to reconsider the War on Drugs. It is about time that this discussion also takes place in the United States. Kudos to UTEP and the city of El Paso for taking that step.

The President’s Health Care Tax

As Michael Cannon discussed in an earlier post, the White House is trying to claim that health care “reform” does not mean higher taxes. This is a two-pronged issue. First, there is a mandate to purchase health insurance. Second, there is a tax (the White House calls it a fee) on people who fail to purchase a policy.

The White House claims this mandate is akin to state-level requirements for the purchase of health insurance, and that the newly-insured people will be getting some value (a health insurance policy) in exchange for their money. These assertions are defensible, but that does not change the fact that a tax is being imposed.

It might be plausible to argue that the mandate is not a tax if the value of the insurance policy to the individual was equal to the cost. But since these are people who are not buying policies, their behavior reveals that this obviously cannot be true. So this means that they will be worse off under Obama’s plan and that at least some of the cost should be considered a tax.

The Social Security payroll tax allows a good analogy. Labor economists correctly argue that the payroll tax functions, in part, as a “premium” for what can be considered a government-provided annuity. As such, when we try to measure the disincentive effect of the payroll tax, it is appropriate to include the perceived value of future Social Security benefits (for most Americans, especially with average or above-average incomes, the “rate of return” is very low or negative, so a substantial share of the payroll tax is a tax both in the legal sense and economic-distortion sense). The same is true of a mandatory health insurance policy (even if the money does not go through the government’s hands).

On the broader issue of paying money and getting something of value in return, another analogy is helpful. A share of the gasoline excise tax is used for road construction and maintenance. We all benefit from roads, even if we don’t drive (let’s set aside issues such as whether the benefits equal the costs, whether the federal government should be involved, etc). Does that somehow mean the gasoline excise tax is not a tax? Of course not.

Turning now to the excise tax, the Administration’s argument that this is a fee is even less defensible. The Baucus legislation in the Senate Finance Committee explicitly references an excise tax. Equally revealing (and even more ominous), the IRS is charged with collecting the fee. The White House can argue that the tax - in the economic sense - is lower than the fee if something of value is exchanged. But the tax is still there.

Rather than play games, the White House should make an open argument for bigger government. The fact that the Administration prefers to be deceptive says a lot about the underlying merits of their proposal.

Liberals in Power

Will Saletan writes that he and his colleagues at Slate seem to be increasingly engaged in libertarian sallies at the food police and other nanny statists. “Are we becoming conservative?” he worries, wringing his hands. Not quite:

We’re what we were five or 10 years ago: skeptics and fact-mongers with a bias for personal freedom. It’s the left that’s turning conservative. Well, not conservative, but pushy. Weisberg put his finger on the underlying trend: “Because Democrats hold power at the moment, they face the greater peril of paternalistic overreaching.” Today’s morality cops are less interested in your bedroom than your refrigerator. They’re more likely to berate you for outdoor smoking than for outdoor necking. It isn’t God who hates fags. It’s Michael Bloomberg.

Yes, that’s the same Jacob Weisberg who wrote In Defense of Government and blamed libertarians for the financial collapse. Older and wiser every day.

When Saletan takes on the stretches that the fat-tax advocates have to make to justify government regulation of what we eat, he would have done well to cite Glen Whitman’s Cato paper on paternalism.

And as genuine liberals recoil in horror at the actions of liberals with power, it’s a good time to read Damon Root’s new Cato Policy Report cover story on liberals who fled “right” from the economic and constitutional malfeasance of the New Deal. Let’s hope Saletan’s “new Whiskey Rebellion” spreads beyond the pages of Slate.

HT: Jacob Grier.

Cato Supreme Court Review on the Road

With last week’s Constitution Day conference behind us (watch it here) – and the release of the 2008-2009 Cato Supreme Court Review – I can finally escape the office where I’ve been holed up all summer.  Yes, it’s time to go on the road and talk about all these wonderful legal issues we’ve learned about over the past year, as well as previewing the new Supreme Court term.

To that end, below the jump is my fall speaking schedule so far.  All these events are sponsored by the Federalist Society (and in some cases co-sponsored by other organizations) and all are open to the public.

If you decide to attend one of the presentations after learning of it from this blog post, please feel free to drop me a line beforehand, and do introduce yourself after the event.

Sept. 24 at 11:50am - DePaul Law School, Chicago - Debate on the Second Amendment post-Heller

Sept. 24 at 4:30pm - Chicago-Kent School of Law - Panel on Rule of Law in Iraq

Sept. 29 at 5:00pm - University of Cincinnati Law School - Rule of Law and Economic Development

Sept. 30 at 12:00pm - Capital University Law School (Columbus, OH) - Review of October Term 2008/Preview of October Term 2009

Sept. 30 at 3:30pm -  Ohio Northern School of Law (Ada, OH) - Debate on Ricci and Affirmative Action in Employment

Oct. 1 at 12:00pm - University of Toledo Law School - Debate on Ricci and Affrimative Action in Employment

Oct. 1 at 5:00pm - Thomas M. Cooley Law School (Auburn Hills, MI) - Immigration and the Constitution

Oct. 5 at 12:00pm - University of Pennsylvania Law School - Debate on the Use of Foreign Law in Constitutional Interpretation

Oct.6 at 5:30pm - Blank Rome LLP in Philadelphia (Federalist Society Lawyers Chapter; small admission fee) - Panel on Rule of Law in Iraq

Oct. 8 at 1:00pm - Penn State-Dickinson Law School (University Park) - October Term 2009 Preview

Oct. 13 at 5:15pm - George Mason University Law School (Arlington, VA) - October Term 2009 Preview

Oct. 26 at 12:00pm - Florida International University Law School (Miami) - Topic TBA

Oct. 27 at 12:30pm - University of Miami Law School - Topic TBA

The Tire Tariff and the Invertebrate President: A Fable

Anyone still inclined to minimize the meaning of President Obama’s Chinese tire tariff decision should read George Will’s column today.

It is not only the direct costs of this particular decision, which are numerous and tallied in the article (and in this paper), that should concern us. Will’s bigger concern is the foreshadowing of more protectionism from a president who has proven to have no qualms about looking straight into other people’s eyes and claiming that his administration opposes protectionism, favors free trade, and is working to advance pending trade agreements through Congress, all while remaining “invertebrate as he invariably is when organized labor barks.”

Is this a sign of schizophrenia? No, it’s worse. What we have here is a president who views trade policy as nothing more than a tool to advance his own political standing with groups that are hostile to commerce. Since groups on the left have grown disenchanted that some of the most socialist elements of the health care debate might be left on the cutting room floor, why not try to placate them with anti-business, anti-consumer, anti-globalization protectionism? Will makes the link between tire tariffs and the health care debate in his concluding sentence.

A president who fancies himself economically enlightened and internationalist would treat trade policy as a means to promoting economic growth and sound foreign relations. This president, regrettably, views trade policy as a sacrificial pawn in the service of politics as usual.

The Crystal Ball

Some comforting news regarding the Obama administration’s approach to the war in Afghanistan:

Among the alternatives being presented to Mr. Obama is Mr. Biden’s suggestion to revamp the strategy altogether. Instead of increasing troops, officials said, Mr. Biden proposed scaling back the overall American military presence. Rather than trying to protect the Afghan population from the Taliban, American forces would concentrate on strikes against Qaeda cells, primarily in Pakistan, using special forces, Predator missile attacks and other surgical tactics.

I’m an analyst, not a fortune teller, so anyone’s guess is as good as mine as far what course Obama will choose to take in Afghanistan. I will say, however, that I will not be surprised if the president decides to send more troops. For once I actually hope that he listens to Biden.

McCarthy’s World

The NYC/Denver terrorism investigation has Andy McCarthy all riled up.

In this article at National Review, McCarthy says that the risks associated with terrorism require a domestic preventive detention regime where investigators can go to a court with something less than probable cause and detain individuals without charge until they can gather the evidence for an indictment.

This is a pretty bold proposition, given the fact that he lays out in this post on The Corner the power that investigators already have to detain material witnesses while gathering evidence. Not to mention the power to detain allegedly dangerous individuals picked up on relatively minor charges such as lying to federal agents, the current disposition of the NYC/Denver suspects.

Then McCarthy comes full circle in this post, claiming that if this is the fault of a “law enforcement” mindset in counterterrorism, it may be time to consider a domestic intelligence agency akin to Britain’s MI-5. He also blasts the use of non-coercive interrogation “that the Left insists are just as reliable in a ticking-bomb situation as the CIA’s coercive methods.”

There are several problems with this take on domestic counterterrorism.

The first is that the decision to involve a New York imam in the investigation, a step that compromised the operation and forced investigators to make early arrests before all of the co-conspirators could be identified, was made by an intelligence organization, the NYPD’s Intelligence Division. This is not the cops of the Counterterrorism Bureau, the law enforcement officers that work with the FBI in the Joint Terrorism Task Force, but a separate intelligence department run by a former CIA official who is openly hostile to the Bureau. The same type of folks that McCarthy wants to put in charge of domestic counterterrorism.

Second, McCarthy’s plug for coercive interrogation is the path advocated in the early years of the Bush administration. This has the deleterious effect (beyond statutory bans on torture and constitutional rights prohibiting the same) of making anything you get from the “third degree” inadmissible in court. To get around this you would have to ask courts to generate a doctrine that allows for evidence collected as a result of coercive interrogation to be admitted in spite of clear constitutional violations. I don’t see any way that this does not seep into general law enforcement, where any potential future crime justifies beating information or confessions out of suspects. This is rolling back civil liberties a hundred years or so.

Third, a domestic prevention regime is destined to run into the problems that the British encountered in Northern Ireland. IRA detainees that were subjected to “special interrogation techniques” and held without charge staged a hunger strike to protest being treated as criminals instead of detainees; their jailers had taken away their civilian clothes and made them wear prison uniforms. As former FBI Agent and counterterrorism expert Mike German says in his book, Thinking Like a Terrorist:

The reasons for the hunger strike reveal much about the IRA and about terrorists in general. They didn’t strike over the anti-Catholic discrimination that led to the civil rights movement. They didn’t strike over the RUC’s police abuse or the stationing of British troops in Northern Ireland. They didn’t strike over being arrested without charges, interned, and tortured. They didn’t strike over indefinite detentions or even over Bloody Sunday. They knew all those things helped their cause. They went on hunger strike because the British government was going to make them look like criminals.

If you fear Islamic terrorists, let investigators do their job and find the people who would harm the public. This is a problem that will be solved over decades of diligent investigation, sitting on wiretaps, infiltrating cells, and prosecuting dangerous people. Distorting the domestic criminal justice system out of hysteria over potential attacks will make martyrs out of detainees and torture victims and encourage a broader spectrum of people to violence.