Archives: 06/2010

Kagan the Tight-Lipped, Fair-Weather Originalist

Here’s what you have missed if you don’t have the luxury of watching C-SPAN all day:

  • Senator Sessions went after Kagan hard on the Military-Recruiting-at-Harvard imbroglio.  I don’t think he did any damage—which I’ll define as convincing someone on the fence to go against her—but the thing to keep in mind here is that the Don’t Ask Don’t Tell policy that so enraged then-Dean Kagan was federal law, not military policy.  Punishing the military for an act of Congress you disagree with—one on which you advised President Clinton—is disingenuous at best.  And I say this even though Cato supports ending DADT and filed a brief against the Defense Department in the Rumsfeld v. FAIR case involving denial of federal funds to schools who hamper military recruitment (we argued that private schools, like Harvard, should have more freedom to design their policies than public schools; in no way did we support the tenuous statutory claims made by Kagan, which the Court rejected 8-0).  There are policy differences and legal advocacy, and then there’s the rule of law.
  • Kagan’s attempts to walk away from her “Confirmation Messes” law review article are simply unconvincing.  In that article, she said among other things that “[w]hen the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public.”  Now Kagan says she can’t even talk about whether past cases were correctly decided because they’re all “settled law.”  She can get away with this because of the sizeable Democratic majority in the Senate, but there is simply no principled way anyone can argue that what Kagan wrote in 1995 is now somehow wrong.  Yes, nominees should not be forced to pre-judge cases—Kagan will be fully justified in refusing to opine on the constitutionality of the individual health care mandate—but how are we to get to know a nominee’s judicial philosophy if she declines to answer questions about that philosophy?
  • In her response to Senator Kohl about whether she’s an originalist like Justice Scalia or a critic of originalism like Justice Souter, Kagan kept referencing the “original intent” of the Founders.  This line of analysis is completely wrong.  It’s not the intent of the Founders (or Framers, or authors of the Federalist Papers, or anyone else) that matters but the original public meaning of the constitutional provision at issue in any given case.  So it seems that Kagan either doesn’t understand originalism or doesn’t take it seriously.  Indeed, she followed-up by saying that original intent was sometimes useful for interpreting the Constitution and sometimes not, that there are many tools for interpreting the Constitution.   I take this to mean that when originalism suits Kagan’s desired result, she will pay it lip service.  Otherwise, well, ya gotta do what ya gotta do to achieve your preferred position.
  •  Whether it be campaign finance, abortion, executive detention, or anything else, Kagan is tending to answer questions by reference to existing precedent rather than an affirmative statement by her of the law.  This is good strategy—she shows she’s knowledgeable without tipping her hand on what she actually thinks—but fails to meet the Kagan Standard for candor from nominees.  She’s no longer auditioning to be a constitutional law professor or the government’s advocate: it is completely fair to ask her to give us some actual opinions of what she thinks about the state of the law, not just describe it.
  • At times, Kagan manages to engage in some cordial rapport and even jokes with several senators.

The more I watch Elena Kagan, the more I’m liking her personally and the more I’m concerned about what she’d be like on the bench.

CP at Townhall

Stimulus Now, Restraint Later?

Journalists have been repeating lately that “economists say” that we need yet more government spending now to keep on goosing the economy, even though – to be sure – we will need to cut back on spending at some point in the undefined future, to avoid the fate of Greece. Well, maybe some economists. But I’m sure this “economists agree” claim is no more true today than it was a year ago. Here’s one example, from NYU economist Mario J. Rizzo, coauthor with Cato senior fellow Gerald P. O’Driscoll Jr. of The Economics of  Time and Ignorance:

But let’s look at the arguments made by the opponents of fiscal stimulus.

Some have argued that, as deficits increase, people now offset the putative stimulus by increasing their savings in anticipation of future tax increases. So there is no stimulus now.

Others have argued that, for example, extending unemployment insurance (again) to those unemployed for more than six months will increase the length of unemploymentnow (by subsidizing it) while failing to stimulate.

The stimulus failure is due to the relatively small increase in spending induced by non-permanent increases in income (as unemployment insurance is certainly not permanent source of income). Even more, producers know that the spending is non-permanent so it is unlikely to result in increased employment of labor. Thus, there is no stimulus now; in fact if unemployment continues there is a kind of anti-stimulus now.

Austrians have argued that failing to allow the housing market to adjust by both fiscal and monetary propping-up measures, worsens the situation now by prolonging the inevitable adjustment to a bubble sector. As the adjustment is dragged out and the rest of the economy suffers the dampening effectsnow. This must include the uncertainty as to when (in calendar time) the market will be allowed to adjust.

In empirical work, John Taylor finds that to the extent there was some effect of the fiscal stimulus it was very small and lasted only a matter of two or three months for each major injection. So I guess the long run is four or five months by this reckoning:

Compared with the 2008 stimulus, the 2009 stimulus was larger, but the amount paid in checks was smaller and more drawn out. Nevertheless, there is still no noticeable effect on consumption. I also show the timing of the “Cash for Clunkers” program in Figure 7; it did encourage some consumption, but did not last and cannot be considered an effective method to stimulate the economy. In addition, my analysis of the government spending part of the stimulus is that it too had little positive impact.

Even frameworks that stress future consequences of current stimulus need not be long-run theories in the calendar sense. For example, if the anticipated taxes required to pay off or service current deficits consist of rises in marginal income tax rates, output will be considerably lower and the real interest rates higher in a matter of a couple of years than without stimulus.

The upshot of all of this is that the anti-stimulus economists are not claiming we must trade off benefits now for some long-term pie-in-the-sky benefits. Most are saying: The stimulus route leads to (almost) no benefits now as well as costs later.

A Few More Points on McDonald

I still haven’t finished reading the full 214-page opinion, but a few points to add to the statement I made yesterday:

  • Justice Alito’s plurality opinion, joined by the Chief Justice and Justices Scalia and Kennedy, is a tight 45-page discussion of the history of the right to keep and bear arms and how it relates to the Court’s “incorporation” doctrine under the Fourteenth Amendment’s Due Process Clause.  No excess verbiage, no policy arguments, and, notably, no denial or disparagement of the Privileges or Immunities Clause – just denying to take up the issue in light of the long line of Substantive Due Process incorporation.
  • Justice Thomas provides a magisterial 56-page defense of the Privileges or Immunities Clause, resurrecting a long-beleaguered constitutional provision.  While he doesn’t cite Keeping Pandora’s Box Sealed, Josh Blackman and I are proud to have tracked quite closely the arguments Thomas makes.  Note that without Thomas’s vote, there is no majority extending the right to keep and bear arms to the states.  That means P or I is relevant and enters the casebooks and Court precedent.
  • The dissents by Justices Stevens and Breyer, respectively (the latter joined by Justices Ginsburg and Sotomayor), rest almost exclusively on pragmatic arguments.  They seem to think that the right to keep and bear arms is an inconvenient part of the Constitution in our modern (particularly urban) age.  This may or may not be correct as a matter of policy or social science – the evidence I’ve seen seems to point against them – but it’s irrelevant to the legal analysis.  If the dissenting justices wish to propose a constitutional amendment, I would welcome the ensuing debate.  As it stands, however, their arguments are disturbingly devoid of principled constitutional interpretation.  Note also that neither dissent goes into privileges or immunities analysis, though Justice Stevens argues that the Clause’s meaning is “not as clear” as the petitioners (our side) suggest.
  • Relatedly, both Justice Stevens and Justice Breyer invoke but misunderstand the infamous Footnote Four of the 1937 Carolene Products case, which bifurcated our rights, privileging political rights over economic liberties and property rights and deferring to the legislative branches when at all possible.  One of the points Footnote Four made, however, was that enumerated rights have to have the strongest possible constitutional protection: “There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth.”  The Second Amendment, then, if anything has to have at least as much protection as the right to privacy and other unenumerated rights.
  • Finally, it is startling that not only does a fundamental constitutional right hang by a one-vote thread, but its application to the states is similarly tenuous.  There but for the grace of God goes any right – and any limitation on government power.  As I said yesterday, “Thank God that vote is Justice Thomas’s.”

For more McDonald reaction, see Josh Blackman’s remarkable series of blogposts.

Kagan Contra Kagan?

The Center for Competitive Politics has sponsored an analysis by Allison Hayward of Elena Kagan’s writings on campaign finance regulation. It should be read widely, not least by the Senators trying to discern her fitness for the Court. Here’s a taste of Allison’s analysis:

In Kagan’s 1996 article, Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, she “explicitly recognized that ‘campaign finance laws… easily can serve as incumbent-protection devices’ and when applied to certain speakers ‘the danger of illicit motive becomes even greater.’ It is impossible to square Kagan’s analysis in this article with her recent comments that the Supreme Court should have deferred to Congress in Citizens United.  Americans deserve to know which version of Kagan’s views will receive a lifetime platform on the bench of the Supreme Court.”

“Rahn Curve” Video Shows Government Is Far Too Big

There is considerable academic research on the growth-maximizing level of government spending. Based on a good bit of research, I’m fairly confident that Cato’s Richard Rahn was the first to popularize this concept, so we are going to make him famous (sort of like Art Laffer) in this new video explaining that there is a spending version of the Laffer Curve and that it shows how government is far too large and that this means less prosperity.

Growth in Government Employment

The 1990s were a decade of rapid private sector expansion and federal government restraint. The 2000s are a decade of government expansion at all levels and private sector retrenchment.

From 1990 to 2000, private sector employment soared 21 percent. Then, remarkably, private sector employment actually fell during the 2000s and was 3 percent lower in 2010 than it was in 2000.

The chart shows the changes in government employment in these time periods.

(Note: Numbers are for January of each year for consistency and to avoid the inclusion of temporary federal decennial census workers that show up in later months.)

Federal employment declined during the 1990s, when we mainly had Clinton in the White House and Republican control of Congress. However, federal employment increased under the Bush administration and the Obama administration is pursuing further growth. As a Cato essay on overpaid federal employees shows, growth in federal employment will cost taxpayers billions of dollars.

The Obama administration is concerned that the economic recovery will be jeopardized by revenue-strapped state and local governments cutting employees. Therefore, it’s advocating another federal bailout for the states to head off government job cuts. However, government jobs are supported with money taxed or borrowed out of the economy. Diverting more resources away from the private sector in order to sustain the public sector is a recipe for economic stagnation – not growth.

Latest Immigration Reform Bulletin Examines Immigrant Crime Myth

The June issue of Cato’s monthly newsletter on immigration reform, just released, tackles the timely topic of “Immigrants and Crime: Perceptions vs. Reality.” The bulletin finds that, contrary to public perception, immigration has not caused higher crime rates, in Arizona or in the nation as a whole. In fact, one new study even suggests that a rising level of immigration in a city actually leads to lower crime rates.

According to bulletin editor and author Stuart Anderson, a Cato adjunct scholar, “National studies have reached the conclusion that foreign-born (both legal and illegal immigrants) are less likely to commit crimes than the native-born.” It’s an important fact to consider as other states look to copy Arizona’s tough new law against illegal immigration, which was in large part motivated by fears of crime.

The latest bulletin is the third in a series Cato plans to publish through 2010 and into 2011. The May issue analyzed the pluses and minuses of a Senate Democratic proposal to reform U.S. immigration law, and the April issue critiqued efforts to impose a national ID card and the E-Verify system.

You can sign up here to receive the bulletin each month by email.