Archives: May, 2010

Does Elena Kagan Support Limited Government?

After Justice Stevens announced his retirement from the Supreme Court, President Obama spoke of wanting to nominate someone with a “keen understanding of how the law affects the daily lives of the American people.” If Solicitor General Elena Kagan has that understanding, she probably got it from books.

We get a glimpse of that in this morning’s New York Times. Drowning her sorrow in vodka and tonic after Ronald Reagan took the White House in 1980 – during that summer she’d worked on the losing Senate campaign of liberal Democrat Liz Holtzman – the young Ms. Kagan would write in the Princetonian, “Where I grew up – on Manhattan’s Upper West Side – nobody ever admitted to voting for Republicans.” She described “the Manhattan of her childhood,” the Times adds, as a place “where those who won office were ‘real Democrats – not the closet Republicans that one sees so often these days but men and women committed to liberal principles and motivated by the ideal of an affirmative and compassionate government.’”

Ms. Kagan would go on from Princeton to Oxford, Harvard Law, clerkships with Judge Abner Mikva and Justice Thurgood Marshall, a stint in private practice in Washington, a professorship at the University of Chicago Law School, then back to Washington for service in the Clinton White House, and finally a return to Harvard Law as professor, then as dean, before being tapped by Obama as solicitor general.

That’s an impressive rise, to be sure. Whether it has acquainted Ms. Kagan with the lives of ordinary Americans is open to question. But it surely has acquainted her with the modern conception of the Constitution, which is at some remove from the document itself. Whereas the Constitution as written creates a government of limited powers, modern “constitutional law” has allowed an all but unlimited federal government – nowhere more evident than in Ms. Kagan’s sponsor’s cardinal achievement to date, ObamaCare.

In this time of the Tea Party movement (witness this weekend’s developments in Utah), when the cry is “Give us back our Constitution,” the question, “Are there any longer any limits on federal power?” will doubtless be prominent during the upcoming Senate confirmation hearings. Ms. Kagan has a slim publishing record for someone with her background, so the hearings will be especially important for answering that question. One hopes that at least the Republicans on the Senate Judiciary Committee will be resourceful and diligent in pressing the question.

Two Towers - Dubai and Riyadh

Riyadh, Saudi Arabia – I have spent the last two days in Riyadh in Saudi Arabia, and it is impossible to miss the contrasts between here and Dubai. Indeed, I might have tried, except that a number of officials that we have met here tell us “We are not Dubai.”

On the one hand, this is smart politics by the Saudis. Dubai’s brand has been harmed by the  collapse of Dubai World, and by the softening of the real estate market there. By way of contrast, the Saudis point to their conservative investment and monetary policies that have softened the blow of the global financial crisis. They paid down government debt during the boom years, and have cautiously loosened credit and money since 2008. Saying “We are not like Dubai” in the Gulf region is a bit like saying “We are not Greece” in Europe.

On the other hand, the contrasts go far deeper. I will write more about Saudi society and culture when I get back to the States, but it seems quite obvious that Dubai’s relative free spiritedness has not significantly spread to the Kingdom, and it likely never will. Saudi Arabia remains a very conservative place. People here stress how much things have changed. For someone with no prior experience here, that claim is impossible to assess.

Once again, Jon Alterman has outdone himself with a series of meetings with senior officials. We have covered a range of topics, from monetary policy and economic development, and from counterterrorism to Iran, Iraq and Afghanistan. I focused my attention on the power shifts in the region. Last year, China displaced the United States as the leading market for Saudi oil. India is in the third place, and charging forward. As the United States continues to shift to alternative sources, either oil from other places, or different forms of energy entirely, this trend will continue. I wondered, therefore, if China might displace the United States here in other ways.

That seems unlikely. Tens of thousands of Saudis have studied in the United States and elsewhere in the West. I have met graduates from Penn State, Iowa State, the University of Idaho, the University of Denver, and many other Americans colleges and universities. Others have studied in the UK and elsewhere in Europe. Although the numbers dropped off precipitously after 9/11, Saudi citizens are now returning to the States to study, many aided by generous scholarships from the Saudi government. The level of personal interaction that occurs from study abroad programs make possible a level of understanding and mutual respect, even if – in the end – we maintain very different political and social systems. Riyadh will never be Los Angeles or Manchester. But neither will it ever be Beijing.

I close with reference to two pictures, the Burj Khalifa in Dubai, the world’s tallest building, which I visited on Friday, and the Kingdom Center Tower that looms over Riyadh. The Burj Khalifa, formerly known as Burj Dubai, is easily twice as tall as most of the other buildings there, but any one of those lesser structures would stand taller than Kingdom Center. The latter dominates the landscape here because there really is no “downtown” per se; there is no skyline of lighted buildings. Riyadh is a sprawl of old neighbor-hoods and structures, interspersed with new construction and only the occasional tall building.

It remains to be seen which model, Dubai’s audacious bid for global attention (and money), or Saudi Arabia’s cautious and deliberate move toward modernity, will be best suited to improving the lives of their respective citizens over the long term.

Kagan Nomination Launches Constitutional Debate

As expected, and despite an exhaustive review of shortlist candidates, dead-end leaks about Hillary Clinton, and other distractions, President Obama settled on the long-time prohibitive favorite to be his next Supreme Court nominee.  Elena Kagan became the justice-in-waiting the moment Sonia Sotomayor was confirmed, so you didn’t have to be Tom Goldstein to have predicted this.  The president wanted a highly credentialed non-judge who would serve for a long time and wouldn’t cost too much political capital.  He got a 50-year-old solicitor general and former dean of Harvard Law School – the first female in each post – whose record the Senate (and media, and activists) already examined in a confirmation process that put her into her current post.  That her appointment would put three women on the high court for the first time also doesn’t hurt.

Kagan is certainly not the worst possible nominee from among those in the potential pool – that would’ve been Harold Koh, had President Obama been most inclined to appoint the first Asian-American justice – but others would have been better in various ways.  Although all Democratic nominees would be expected to have similar views on hot-button “culture war” issues like abortion, gay rights and gun control, Diane Wood is a renowned expert on antitrust and complex commercial litigation, for example, and Merrick Garland would almost certainly bring a stronger understanding of administrative law.  Although some on the left are concerned that replacing Justice John Paul Stevens with Kagan “moves the Court to the right,” there is no indication that the solicitor general is anything but a standard modern liberal, with all the unfortunate views that entails on the scope of federal power.  Another concern is her mediocre performance in her current position – the choices of which legal arguments to make from those available to her in defending federal laws in Citizens United and United States v. Stevens, for example, were not strategically sound – though she may well be better suited to a judicial rather than advocacy role.

In any event, with Democrats still holding a 59-seat Senate majority, Elena Kagan’s confirmation is in no doubt whatsoever.  The more interesting aspect of the next couple of months, culminating in hearings before the Judiciary Committee, will be the debate over the meaning of the Constitution and what limits there are to government action.  In an election year when a highly unpopular and patently unconstitutional health care “reform” was rammed through Congress using every procedural gimmick imaginable, voters are more sensitive to constitutional discourse now than they have been in decades.  From bailing out the financial and auto industries to fining every man, woman and child who doesn’t buy a government-approved health insurance policy – and, coming soon, regulating carbon emissions – the Obama administration is taking over civil society at a rate that alarms Americans and fuels both Tea Party populism and interest in libertarian policy solutions (which Cato is happy to offer but wishes were implemented on the front end instead of being invoked as a response to destructive statism).  The Kagan nomination is the perfect vehicle for a public airing of these important issues.

Senators should thus ask questions about the meaning of the Commerce Clause, the Necessary and Proper Clause, and the General Welfare Clause, to name but three provisions under which courts have ratified incredible assertions of federal power divorced from those the Constitution discretely enumerates.  If Elena Kagan refuses to answer such queries substantively – employing the usual dodge that she may be called upon to interpret these clauses as justice – we can rightfully hold that response against her, as she herself counseled in a law review article 15 years ago.

Zoning vs. Families

Back in 1996 George Liebmann wrote in Regulation about how “Zoning makes it more difficult to keep aged parents close by and care for them.” He recommended that “Duplex homes and accessory apartments should be permitted in all new residential construction. Housing options such as these allow elderly persons to live near their adult children without intruding on their children’s privacy.” (“Modernization of Zoning,” pp. 71, 75)

Now the Washington Post reports

The Rev. Kenneth Dupin, who leads a small Methodist church [in Salem, Virginia], has a vision: As America grows older, its aging adults could avoid a jarring move to the nursing home by living in small, specially equipped, temporary shelters close to relatives.So he invented the MEDcottage, a portable high-tech dwelling that could be trucked to a family’s back yard and used to shelter a loved one in need of special care.

Skeptics, however, have a different name for Dupin’s product: the granny pod.

Protective of zoning laws, some local officials warn that Dupin’s dwellings – which have been authorized by Virginia’s state government – will spring up in subdivisions all over the state, creating not-in-my-back-yard tensions with neighbors and perhaps being misused….

the nation’s elderly population is set to double in just 10 years as more and more baby boomers hit retirement age. Surveys by AARP and others also show that large majorities prefer to live in their own homes or with loved ones rather than in retirement communities.

But local officials think their zoning rules are more important than keeping families together.  They fume that allowing such small structures for grandma would “turn our zoning ordinance upside down.” And what’s more important, saving money and keeping grandma near her family or strict adherence to zoning regulations? Local officials think the choice is clear.

In this case, though, state officials disagreed. Virginia just passed a law “that supersedes local zoning laws in the state and allows families to install such a dwelling on their property” – but only “with a doctor’s order.” They couldn’t just allow families to choose a living arrangement that suits them. No, a doctor has to authorize it.

It’s sort of like medical marijuana – a slight increase in freedom, but also an increase in the medicalization of normal individual decisions.

The Welfare State and Terrorism

Here are some very depressing stories showing the corrosive — and perhaps even deadly — effect of redistibutionist policies.

We begin with a story of a government that actually tried to do the right thing, but was thwarted by a supra-national court. The Daily Mail reports that a European Court has ruled that the UK no longer can impose restrictions on welfare payments to women married to suspected terrorists:

A European court has instructed Britain to drop restrictions which limit social security benefits paid to the wives of terror suspects. Ministers imposed tight rules on payouts to stop the money falling into the hands of alleged Al Qaeda fanatics. Under the restrictions, cash payments were strictly limited and families had to show receipts to justify every penny of spending. But yesterday the European Court of Justice said there was no danger of the handouts being used to fund terror and branded the measures unlawful.

Unfortunately, this story is not an isolated incident. Here’s a report from the Express about a Muslim cleric who collected welfare from the Brits while (to put it mildly) being a reprehensible jerk:

The twisted cleric provoked outrage by comparing British troops to Nazi stormtroopers and telling parents of dead soldiers that their children had died in vain. …Choudary, a former lawyer…rakes in more than £25,000 a year in welfare handouts.

CNN reports, “Since the mid-90s, London has been a haven for foreign jihadi preachers, organizers, agitators and propagandists, many of them recipients of generous welfare benefits.”  And the BBC notes that:

In November 2000, Mr Kaplan was convicted for incitement to murder and sentenced to four years in jail. Since then, intelligence reports say his followers have become even more devoted to Mr Kaplan, considering him a martyr for the cause of Allah. …Mr Kaplan is believed to have a fortune worth millions. Nonetheless, he claimed social benefits in Cologne for many years until 2m Deutschmarks (1m euros, £700,000) in cash was found in his flat.

This Mickey Kaus blog post has more nauseating details.

The most amazing story comes from Australia. Here’s a Youtube copy of a report showing that Aussie taxpayers gave $1 million in welfare over 19 years to an Islamic extremist who planned to kill thousands of innocent people.

This Week in Government Failure

Over at Downsizing Government, we focused on the following issues this week:

  • The U.S. Postal Service’s “automation refugees.”
  • Earmarks: Just because the federal bureaucracy does an abysmal job of spending taxpayer money, it doesn’t mean lawmakers would do any better.
  • Ground hasn’t been broken for California’s high-speed rail system, but it’s already a boondoggle.
  • Hop aboard the Liberty Bus!
  • Al Capone would have loved Medicare.

The Lieberman-Brown Bill Merely Updates Expatriation Law for the 21st Century

Stripping the citizenship of those who take up arms against the United States is not a controversial proposition. Indeed, under existing law, American citizenship can be taken away from any adult who, among other actions, makes a formal declaration of allegiance to a foreign state, serves in the armed forces of a foreign state if such armed forces are engaged in hostilities against the United States, or commits any act of treason against the United States. The Lieberman-Brown bill, which adds to that list the provision of material support to State Department-recognized terrorist organizations (most notably Al Qaeda) or actively engaging in hostilities against the United States, is thus not problematic on its face. It merely clarifies, in an age where America’s enemies aren’t necessarily other countries, that a person need not ally himself with a hostile “foreign state” to risk expatriation.

Still, the Terrorist Expatriation Act does raise concerns about how the new citizenship-stripping provisions would be applied. Expatriation is a serious remedy that is warranted only in the most serious cases — such as, indeed, treason or taking up arms against your own country. If and when the act becomes law, courts will maintain a high bar for what constitutes “material support” of terrorist organizations (such that it constitutes relinquishing U.S. nationality), and the subject of the expatriation action will — under existing law that will remain unchanged — have notice and opportunity to challenge the decision.

In short, this is neither a radical threat to civil liberties nor an ineffectual political stunt. Assuming the above constitutional protections remain in place, the expansion of federal expatriation law should be seen as a prudent, necessary, and uncontroversial measure that deals with the realities of the modern world.