Archives: May, 2011

National Curriculum Battle Joined

Remember several weeks ago, when the Albert Shanker Institute released a manifesto calling for the creation of detailed curriculum guides to go with the national standards and tests being pushed and pulled through the back doors of states across the country? Apparently, that was the last straw for a lot of education analysts and policymakers, especially folks like Williamson Evers of the Hoover Institution (and Bush II Education Department); one-time Fordham Institute state-standards evaluator Sandra Stotsky; and Foundation for Education Choice senior fellow Greg Forster. Those three, along with a few others, organized a counter-manifesto being released today, a 100-plus signatory reply which, according to the group’s press release, declares that:

  • These efforts are against federal law and undermine the constitutional balance between national and state authority.
  • The evidence doesn’t show a need for national curriculum or a national test for all students.
  • U.S. Department of Education is basing its initiative on inadequate content standards.
  • There is no research-based consensus on what is the best curricular approach to each subject.
  • There is not even consensus on whether a single “best curricular approach” for all students exists.

These points certainly sum up many of the major problems with the national standards drive, a drive that has been shrouded in half-truths about “voluntary” standards adoption; shorthand pleas for federal coercion; and what appears to be a camel’s-nose-under-the-tent strategy to ultimately impose a detailed, de facto federal curriculum. There is more to the problem than the summary points above cover – for instance, the Constitution gives the federal government no authority whatsoever to meddle in school curricula – but for a consensus-driven document, this new and desperately needed cannon blast against national standards is very welcome.

For a great explanation of why the anti-manifesto ringleaders did what they did, check out Greg Forster’s entry on the Witherspoon Institute’s blog. He hits lots of important points – especially that nationalizing curricula is a surefire way to fuel all-encompassing social strife – and I would quibble with only one thing:

My own view is that the root of the problem is the government monopoly on schools. Governmental monopolization of the education of children guarantees that all our religious and moral differences will be constantly politicized. School choice, in addition to delivering better academic performance, seems to me to be the only way to end the scorpions-in-a-bottle cultural dynamic and create space for shared citizenship across diverse religious and moral views.

But that’s an argument for another day.

Here’s where I think Greg is incorrect: Choice is not an argument for another day. It is the argument for this day.

Until all parents have real, full choice they will have no option but to demand that higher levels of government force intractable lower levels to provide good education. It won’t work – thanks to concentrated benefits and diffuse costs all levels of government are dominated by teachers’ unions and administrators’ associations that will never let tough accountability and high standards rein – but it is all that parents can do absent the ability to take their children, and tax dollars, somewhere else. That means choice is essential right now, because it is the only way to take power away from special-interest dominated government and give it to the people the schools are supposed to serve. In other words, it is the only option that will actually work, obliterating the special-interest hammerlock, imposing accountability to customers, and when coupled with freedom for educators unleashing competition, specialization, innovation, and constant upward pressure on standards. In other words, it will do all those things that national standardizers emptily and illogically promise that their reform will do, and much, much more.

Hayek Day Turns into a Week

Last week I wrote about “Hayek Day,” when Russ Roberts and John Papola released their second rap video about Hayek and Keynes, and Bruce Caldwell, Richard Epstein, and George Soros came to Cato to talk about the new edition of The Constitution of Liberty. Now, it’s looking like Hayek Week. Yesterday, on the 112th anniversary of Hayek’s birth, The Constitution of Liberty was reviewed in the New York Times. I write about the new review by Francis Fukuyama, and the original 1960 review by Sidney Hook, at the Britannica today. Since Fukuyama managed to mention Glenn Beck three times in 1100 words, I noted Hayek’s view of conservatism, which can be found in the very book under review:

Reagan and Thatcher may have admired Hayek, but he always insisted that he was a liberal, not a conservative. He titled the postscript to The Constitution of Liberty “Why I Am Not a Conservative.” He pointed out that the conservative “has no political principles which enable him to work with people whose moral values differ from his own for a political order in which both can obey their convictions. It is the recognition of such principles that permits the coexistence of different sets of values that makes it possible to build a peaceful society with a minimum of force. The acceptance of such principles means that we agree to tolerate much that we dislike.” He wanted to be part of “the party of life, the party that favors free growth and spontaneous evolution.” And I recall an interview in a French magazine in the 1980s, which I can’t find online, in which he was asked if he was part of the “new right,” and he quipped, “Je suis agnostique et divorcé.”

What Immigration Reform Would Look Like

Utah’s done it (great editorial in the WSJ):

Passed by the state’s GOP legislature and signed by Republican Governor Gary Herbert in March, Utah’s plan is notable because it’s the first in the country that would allow undocumented immigrants to get a permit and work legally, after paying a fine of up to $2500 and meeting other conditions. The program is part of a larger package that includes increased scrutiny of immigrants who break the law. The compromise allows the state to address the economy’s demand for workers—thus reducing the incentive for illegal immigration—while satisfying voters who don’t want to reward those who arrived illegally.

Of course, states can’t just announce their own guest-worker programs – the federal government has plenary power over immigration – so Utah may need a waiver from the feds.  Which might not be forthcoming, given politically tone-deaf and legally dangerous statements like this:

In a Senate Judiciary hearing on Wednesday, Attorney General Eric Holder said the law, which combines enforcement measures with a guest worker program, needs to be adjusted or face federal lawsuits. Pressed on whether the Administration planned to sue Utah, Mr. Holder said the Department of Justice “will look at the law, and if it is not changed to our satisfaction by 2013, we will take the necessary steps.”

“To our satisfaction?”  What does Holder think an eventual federal immigration solution would look like?  Here’s Cato’s proposal, but anything that gets through Congress will have to expand employment opportunities for both skilled and unskilled immigrants, normalize the status of current illegals, and otherwise refocus resources on criminals and terrorists.

But it’s not just the government that’s up in arms about Utah’s sensible legislation:

Like Arizona, Utah is already fending off lawsuits from the left. On Tuesday, the American Civil Liberties Union and the National Immigration Law Center sued to stop the portion of the law similar to the one in Arizona that enlists state and local police in the effort to identify illegal immigrants. In Utah’s version, anyone who is arrested for a felony or serious misdemeanor has to show proof of citizenship.

Good grief!  State officials do not violate the Supremacy Clause – or engage in unconstitutional racial profiling – when they enforce federal law, which is what Utah’s enforcement measures, like most of Arizona’s, do.  Critics naturally maintain that such enforcement decisions should be left to the feds but that only gets it half right: the federal government, particularly its executive branch, has discretion over how to prioritize enforcement priorities, but those discretionary decisions (which, after all, can change from one administration to another and even within one presidency) cannot preempt state law.  Only federal law can do that.

This not a question of policy; while I generally like Utah’s plan, I’ve written before that Arizona’s (very different) SB 1070 is constitutional but mostly bad policy.  The larger issue is states wanting to do something in the face of federal abdication.  Some of Utah’s laws – the “plan” is actually five separate laws, covering the spectrum of immigration issues from expanding legal immigration (HB469, HB466) to addressing those already here for economic reasons (HB116) to addressing serious criminals (HB116, HB497) – may well end up losing in court, but they at least get national attention and to try to push federal action (SJR12).

As Rep. John Dougall, Vice Chair for Appropriations (#2 on the state budget), has explained to me, a major goal Utah had was to shift the dialogue from “enforcement only” to something more comprehensive, especially expanding legal immigration.  A more controversial purpose was to plant the federalism flag, arguing that states share some of the jurisdiction over immigration.  For example, Dougall wrote in an email to me that I quote with his permission, “HB469 rests on the belief that citizens should have the right to freely associate with anyone in the world, who don’t pose a public safety threat to others, and those citizens should be able to sponsor those immigrants in UT. A belief that the state should defend a citizen’s right to freely associate from an overly expansive federal government.”

I’m not fully convinced that some of this isn’t preempted – by federal law, not by what attorneys general or secretaries of homeland security say or do – but the goal is laudable and the classical liberal first principles are unassailable.  The Utah model could work for other states looking to split the Gordian knot between the extremists on both sides whose “debate” generates into ”amnesty” versus “racism.”  Texas Republicans have introduced similar legislation and other states’ lawmakers are also apparently interested.

That’s all to the good: even if you can’t enjoy the “greatest snow on earth” during the summer, anyone interested in innovative immigration reform should book a flight to Salt Lake City.

Martin Feldstein on the Defense Budget

Martin Feldstein, a distinguished economist and a former colleague, made a surprising case for maintaining a large U.S. defense budget, despite a huge federal budget deficit, in the annual Irving Kristol lecture Tuesday night at the American Enterprise Institute.

On one point, he was clearly right: we can afford it. “There is no danger of bankrupting ourselves by so-called ‘imperial overreach’ when we spend less than 5 percent of GDP on defense” (in fact, 5.6 percent of GDP in 2010).

But he failed to make a convincing case that we should spend this much for defense, especially given the dire outlook for federal deficits and the debt. In 2010, U.S. real (inflation-corrected) spending for national security was over twice the annual spending during the Ford and Carter administrations and over 40 percent of total current world defense spending. What conditions, what national objectives, might justify continued U.S. defense spending of this or a higher magnitude?

Feldstein first plays the China card, arguing that “The United States should maintain a military capability such that no future generation of Chinese leaders will consider a military challenge to the United States or consider using military force to intimidate the United States or our allies,” maybe forgetting that a much weaker China successfully challenged us in Korea in the early 1950s. He next makes the case for the importance of a global military presence, arguing that “We have to make it clear by our budgets and by our actions that we are the global force now and will continue to be that in the future.” And finally, “we have to ask ourselves whether we have a moral obligation to defend our allies. …. There are those who say the United States should not be the global policeman. But if not us, who? As the only democratic superpower with the ability to defend and punish, do we not have a moral obligation to be willing to use that power?” All of this assumes without argument or evidence that it is important for the world to have a global policeman, that we can play this role effectively, and that it is a moral obligation for the United States to serve in this role.

The U.S. military had a central role in the most important strategic development since World War II — prevailing in the Cold War against the (former) Soviet Union. But it is critical to recognize that our military has not been very effective as a global policeman or nation builder. The Korean War ended in a draw, leaving a despotic communist government, now with nuclear weapons, in control of North Korea. After 20 years of a U.S. military presence, we abandoned Vietnam to a communist government that now controls most of southeast Asia. The U.S.-sponsored invasion of the Bay of Pigs was defeated, leaving a communist government in control of a large island 90 miles from Florida. U. S. forces have now been in Afghanistan for nearly 10 years without securing it from lightly armed local forces without significant external support. And U.S. forces have now been in Iraq for over eight years without securing it from frequent terrorist attacks.

I wonder what evidence Feldstein or anyone else would offer to support a view that the United States has a comparative advantage as the global policeman. Most of our allies can afford higher defense spending if our support is reduced. The total GDP of the European Union is higher than the U.S. GDP. The GDP of South Korea is many times that of North Korea. There is no obvious calamity that would result if the U.S. contribution to the collective defense with our allies were reduced.

Yes, we can afford a large defense budget, and national security is one of the few federal programs for which there is clear constitutional authority. But like the budgets for most other federal programs, the defense budget is too large. So a substantial reduction of the defense budget should be on the table in any serious effort to avoid a fiscal collapse, a threat that is more serious and more urgent than any that might be effectively countered by trying to maintain the role of a global policeman.

When Fighting ObamaCare, the Pen Is Mightier…

On Wednesday, the opening brief for the 26 states challenging ObamaCare was filed in the Eleventh Circuit. Also filed was the brief for the co-plaintiff, the National Federation of Independent Business. (Ilya Shapiro previously blogged about the filings here.) The government is appealing from Judge Roger Vinson’s stirring decision striking down all of the Affordable Care Act (ACA). (An edited version of that decision is available here.)

Because the challenge to Obamacare is the most important constitutional question in many decades, and because the case will have substantial ramifications for the health of our citizens as well as the health of our system of supposedly limited government, Cato is breaking protocol (we usually just get involved at the Supreme Court level) and filing amicus briefs in nearly every circuit in which a challenge is being made, at nearly every stage of litigation. Next week, we will also be filing in the Eleventh Circuit.

The states’ brief and the NFIB brief are excellent examples of persuasive writing, nuanced legal reasoning, and in-depth research. After 70+ years of judicial abdication and constitutional misinterpretation, we need good lawyering on our side. With the first principles of the Constitution largely forgotten, we have to play the hand that the Court has dealt us.

In these briefs, the lawyers have played their hands exceptionally well. Effective legal writing will maintain momentum while remaining persuasively rooted in law. A good turn-of-phrase doesn’t hurt either. The briefs are replete with great examples of both.

Recall that the litigation mostly concerns whether the so-called “individual mandate” — a part of the act that requires every citizen, with a few narrow exceptions, to maintain a qualifying health insurance plan or suffer a fine — is within Congress’s power to regulate interstate commerce. Even with the breadth that the Commerce Clause has been given since the New Deal, no case has allowed Congress to conscript citizens into commercial transactions, regulate them, and then blithely call it an ordinary regulation of commerce.

The government claims that the uninsured have a “substantial effect” on interstate commerce and thus fall under congressional power. The NFIB brief analogizes it this way:

[W]hereas the “substantial effects” doctrine would allow Congress to regulate local bootleggers because of their aggregate effect on the interstate liquor market, the uninsured “affect” the health-insurance market only as a teetotaler affects the liquor market, and the power to regulate bootleggers does not imply the power to conscript teetotalers.

Interestingly, as recently as 1920 Congress did not believe it even had the power to ban alcohol (“conscript teetotalers?”) absent a constitutional amendment. Now, Congress thinks it can make us buy health insurance.

I’m particularly fond of how the NFIB brief accurately characterizes the government as defending a “hypothetical statute”:

The Government’s principal argument attempts to recharacterize the mandate as a regulation of the economic activity of obtaining healthcare while uninsured. But the mandate does not regulate that commercial practice. Rather, it regulates the status of being uninsured, regardless of whether healthcare is obtained, let alone obtained without compensation. It is legally irrelevant that some sub-class of the uninsured will receive uncompensated care, for Congress cannot bootstrap from that proscribable practice to the substantially broader class of uninsured individuals who do not engage in it.

As Michael Cannon tirelessly points out, the “centerpiece of ObamaCare is a three-legged stool, comprised of the individual mandate, the government price controls that compress health insurance premiums, and the massive new subsidies to help Americans comply with the mandate.” Without the individual mandate forcing citizens to diversify the risk pool, ObamaCare will fail even more spectacularly than otherwise.

This fact has become a centerpiece of the government’s arguments for ObamaCare — that the individual mandate remedies the “substantial effects” of the uninsured and thus makes it a “necessary and proper” use of Congress’s commerce power. Of course, the uninsured only have these constitutionally significant “substantial effects” in the context of the rest of Obamacare. In the biting words of the NFIB brief:

[I]t is irrelevant for “substantial effects” purposes that insurers want subsidies to offset losses stemming from the ACA’s requirements to insure sick individuals. Market non-participants do not negatively “affect” commerce simply because sellers’ woes are attributable to costly government regulation rather than normal free-market conditions. The non-participants are not harming the insurance market; they simply are not ameliorating the government’s own market interference.

The states’ brief is equally impressive. Reaching down to the core principles of limited government that the individual mandate threatens, the brief looks at the ramifications of upholding the law:

Congress’s “plenary” regulatory authority over matters within the scope of its commerce power is strong evidence that Congress may not drag unwilling individuals within the scope of that power. Congress has “direct and plenary powers of legislation over the whole subject” of interstate commerce and therefore “has the power to pass laws for regulating the subjects specified, in every detail, and the conduct and transactions of individuals [in] respect thereof.” Indeed, Congress has “full control” of “the subjects committed to its regulation.” If the Constitution gave Congress authority to draft individuals not just for military service, but for any activity directly affecting interstate commerce, and then to exercise full control over them, the Framers surely would have proposed far more protections in the Bill of Rights or rejected this dangerous new power altogether. But they did neither, precisely because the commerce power was not some vortex of authority that rendered the entire process of enumeration beside the point.

I commend all the attorneys involved for a job well done. If you are at all legally minded, I suggest reading both the briefs in their entirety. There are plenty of other bon mots to savor. For further reading, Cato Institute Chairman Robert Levy’s new white paper gives a non-technical overview of the legal arguments against ObamaCare.

Record Number of Americans Targeted by National Security Letters

The latest report to Congress on the Justice Department’s use of foreign intelligence surveillance powers has just been released, and it shows a truly stunning increase in the number of Americans whose sensitive phone, Internet, and banking records were obtained by the FBI — without judicial oversight — pursuant to National Security Letters. In 2009, a total of 14,788 NSL requests were issued targeting U.S. persons — a number that excludes requests for “basic subscriber information” as opposed to phone or e-mail logs — and 6,114 different Americans were affected by those demands for information. In 2010, the number of NSL requests targeting Americans rose to 24,287.

What’s really shocking, however, is the number of people affected. A whopping 14,212 American citizens and permanent residents had records of their financial, telephone, and online activity seized last year.  The previous record, set in 2005, was 9,475. Were you one of those 14,212? If so, what did the FBI get? Thanks to the gag orders that come with NSLs, you will almost certainly never get to find out. But even if the Bureau decides there’s no reason to continue investigating you, whatever data they obtained — lists of phone numbers, credit card purchases, financial transactions, e-mail correspondents, or IP addresses visited — are likely to remain in a massive government database indefinitely

This pattern suggests that the Bureau is doing broader but shallower investigation — sweeping more people into the information vacuum, but issuing fewer requests per person, presumably because the results of the initial request provide few grounds for further scrutiny.  Needless to say, the overwhelming majority of those people are not terrorists — and, indeed, are probably guilty of nothing more than a second- or third-degree connection to the subject of an investigation. Remember, as expiring Patriot Act provisions come up for reauthorization at the end of this month: These tools are fundamentally not about spying on terrorists. The government has always had ample power to do that. They’re about authority to spy on the innocent.

New Job Numbers

The Labor Department released its latest job numbers today and they remind me of Clint Eastwood’s 1966 classic, The Good, the Bad, and the Ugly.

The good news is that the economy created 244,000 new jobs, the biggest gain in almost a year. And the jobs were in the productive sector of the economy rather than government, so the added employment means more taxpayers rather than more tax-consumers.

The bad news is that the jobless rate increased to 9.0 percent, up from 8.8 percent last month. This means that the number of people looking for work is increasing at a faster rate than the number of jobs being created.

The ugly news, at least from the perspective of the Obama administration, is that the latest data is yet another piece of evidence that the White House was grossly mistaken when it claimed that bigger government would translate into better economic performance.

The blue line in the chart below shows the administration’s prediction of what would happen to unemployment if the so-called stimulus was enacted. The dots represent the actual unemployment rate.

As you can see, the unemployment rate is easily more than two percentage points higher than the White House said it would be at this time.

Administration apologists respond by moving the goal posts, asserting that the original prediction underestimated the economy’s weakness and the unemployment data would have been even worse in the absence of all the spending.

Since economists are lousy at predicting the future, that’s a legitimate argument.

But is it an accurate argument? Since there’s no parallel universe where we can conduct policy experiments, there’s no way of proving which side is wrong. Nonetheless, this chart from the Minneapolis Federal Reserve Bank is rather revealing. It compares employment numbers after the deep recession of the early 1980s with the employment numbers from the recent deep recession.

Perhaps I’m biased and reading this chart incorrectly, but it certainly seems as if Reaganomics generated better results than Obamanomics. Maybe it’s time to realize that government is the problem, not the solution?