Archives: 05/2011

An Accounting of Indiana’s Voucher Regulations

I’ve been trying to draw attention to the dangers that regulations like those in Indiana’s new voucher program pose for long-term educational freedom and choice.

It’s a difficult thing to do, in part because we have little freedom at all in the public school system that educates the vast majority of kids. Destroying the independence and diversity of the private education sector seems a reasonable risk to run for many if it means more choice for the majority of families. I disagree, and think that we’ll trade the possibility of a dynamic and innovative market in education for a new era of stagnant secular and religious public schools.

The other difficulty in explaining the threat of regulations like those in Indiana’s voucher law is that it is a complicated bill, linked to complicated existing state code.

In the interest of clarity and transparency, I’ve uploaded a two-page overview of the regulations, with citations and links for those who would like to take a look themselves. You can access it here: Regulations Associated with HB 1003 Indiana—2011-05-20

Let me know what you think, and whether I have missed or misinterpreted anything.

Matt Ladner replied to my concerns recently with some interesting qualifications and questions. He notes, “I haven’t seen an example yet of a voucher program in the United States swallowing up the private school sector and homogenizing them, but I agree that it is possible and a grave concern.”

The primary reason we haven’t seen this yet is that these programs have all been too small and constrained by funding caps. And that’s the problem with the Indiana plan and other plans to expand heavily regulated voucher programs; the better they are on coverage and access, the more devastating the consequences for educational freedom.

I find it horrifying to contemplate looking back 15 years from now at this moment of great opportunity and realize that, in the pursuit of choice, we imported the dysfunctions of government education and top-down control into the private sector and reduced both choice and freedom in the process.

Turns out State Schooling Isn’t Communist after all…

Albert Shanker, long-time head of the American Federation of Teachers union, said back in 1989 that:

It’s time to admit that public education operates like a planned economy, a bureaucratic system in which everybody’s role is spelled out in advance and there are few incentives for innovation and productivity. It’s no surprise that our school system doesn’t improve: it more resembles the communist economy than our own market economy.

But hang on a minute! Doesn’t the following description sound a lot like the work rules in our public schools:

Promotion was determined by the Table of Ranks…. An official could hold only those posts at or below his own personal rank…. [S]tandard intervals were set for promotion: one rank every three years from ranks 14 to 8; and one every four years from ranks 8 to 5…. This meant that, barring some heinous sin, even the most average bureaucrat could expect to rise automatically with age…. The system encouraged … time-serving mediocrity

That, ladies and gentleman, is not a description of the work rules of the communist-era Russian bureaucracy. It describes the rules in the Tsarist Russian bureaucracy (see Orlando Figes, “A People’s Tragedy,” p. 36).

The funny thing is, according to Figes, “By the end of the [19th] century, however, this system of automatic advancement was falling into disuse as merit became more important than age.”

So the modern U.S. system for promoting public school teachers was discarded as inefficient and unworkable… by the Tsars.

The End of the War Powers Resolution

Today is the 60th day since President Barack Obama notified Congress “U.S. military forces commenced operations to assist an international effort authorized by the United Nations (U.N.) Security Council and undertaken with the support of European allies and Arab partners, to prevent a humanitarian catastrophe and address the threat posed to international peace and security by the crisis in Libya.”

The War Powers Resolution of 1973 said that within 60 days of notifying the Congress of the use of force “the President shall terminate the use of United States Armed Forces” unless Congress has declared war or authorized the use of force, extended the 60 day period, or is physically unable to meet because the nation has been attacked.

President Obama has a few hours to go, but I doubt that he will stop American air attacks in Libya. Indeed, the attacks have spread to Libyan ships to counter Qadaffi’s forces.

Like earlier presidents, Obama said his notification of hostilities in Libya was “consistent with the War Powers Resolution.” Now the administration has apparently decided to ignore the law completely. Obama has not sought congressional approval for the bombing. He follows the example of Bill Clinton, who ordered air strikes in Bosnia in 1995 without seeking congressional approval.

Even if you put aside the War Powers Resolution, the U.S. Constitution clearly requires congressional approval of our war in Libya. The legal scholar Michael Ramsey notes:

Every major figure from the founding era who commented on the matter said that the Constitution gave Congress the exclusive power to commit the nation to hostilities.  Notably, this included not only people with reservations about presidential power, such as James Madison and Thomas Jefferson, but also strong advocates of the President’s prerogatives, such as George Washington and Alexander Hamilton.  As President, Washington on several occasions said that he could not undertake offensive military actions without Congress’ approval.  Hamilton is especially significant, because his views on the need for a strong executive went far beyond those of his contemporaries.  Yet Hamilton made it very clear that he read the Constitution not to allow the President to begin a war — as he put it at one point, “it belongs to Congress only, to go to war.”

(See also Ramsey’s article “Textualism and War Powers,” 69 University of Chicago Law Review 1543 (2002)

Candidate Barack Obama agreed in 2007 that “the president does not have power under the Constitution to unilaterally authorize a military attack in a situation that does not involve stopping an actual or imminent threat to the nation.” Colonel Qaddafi’s forces, of course, posed an imminent threat to Libyan nationals engaged in the recent civil war in that nation. How did the Colonel or his army threaten Americans?

This time around, Congress has offered less resistance than in earlier presidential uses of force in Haiti, Bosnia, and Kosovo. They have not roused themselves even to pass a non-binding “sense of the Congress” resolution that the President should seek approval. In the 1990s, there were actual debates in Congress about the wisdom and constitutionality of various wars. Now, silence. It is easy to violate the constitutional domain of a body that is unwilling to collectively defend its powers and unwilling to take up the responsibility of their exercise.

The War Powers Resolution never worked in practice as intended. It is now moribund and should be replaced by a new effort in the courts or Congress to apply the original public meaning of the Constitution and thereby right the balance between starting and making war.

Progress toward Marriage Equality

The Gallup Poll reports today, “For the first time in Gallup’s tracking of the issue, a majority of Americans (53%) believe same-sex marriage should be recognized by the law as valid, with the same rights as traditional marriages.”

Here’s the history of Gallup’s polling on the issue:

1996-2011 Trend: Do you think marriages between same-sex couples should or should not be recognized by the law as valid, with the same rights as traditional marriages?

Gallup notes that the shift results from a substantial increase in support among Democrats and independents in the past year, but support among Republicans didn’t budge from 28 percent. The most striking number, though, is that support among young people 18-34 soared from 54 to 70 percent, mostly reflecting a shift among men, who are now almost as supportive as women.

The new poll comes just two days after Cato’s forum, “The Case for Marriage Equality: Perry v. Schwarzenegger,” featuring the prominent lawyers David Boies and Theodore Olson, who represent the plaintiffs in a lawsuit seeking to strike down California’s Proposition 8. Find video of the event here. The event also featured Robert A. Levy of the Cato Institute and John Podesta of the Center for American Progress, co-chairs of the advisory board of the American Foundation for Equal Rights, sponsor of the lawsuit. Read their Washington Post op-ed on the case.

Will Obama Comply with the War Powers Resolution?

Six Republican senators are challenging President Obama’s authority to conduct an open-ended war in Libya without congressional authorization. The six conservative lawmakers (Rand Paul (R-KY), Jim DeMint (R-SC), Mike Lee (R-UT), Ron Johnson (R-WI), Tom Coburn (R-OK), and John Cornyn (R-TX)) sent a letter to the president on May 18th asking if he intends to comply with the War Powers Resolution. The full text of the letter can be found here.

The law stipulates that the president must terminate military operations within 60 days, unless Congress explicitly authorizes the action, or grants an extension. The clock on the Libya operation started ticking on March 21, 2011. Congress has neither formally approved of the mission, nor has it granted an extension. Therefore, the 60-day limit expires tomorrow, May 20th.

Last week at The Skeptics, I noted Deputy Secretary of State James Steinberg’s testimony before the Senate Foreign Relations Committee, in which he suggested that the administration wanted to comply, but was consulting with Congress about how to do so. The New York Times presented some of the creative ideas that the administration was considering in order to adhere to circumvent the law. But the senators can read the Times, too. In their letter to the president, they write:

Last week some in your Administration indicated use of the United States Armed Forces will continue indefinitely, while others said you would act in a manner consistent with the War Powers Resolution. Therefore, we are writing to ask whether you intend to comply with the requirements of the War Powers Resolution. We await your response.

Let me be clear about one thing: I’m not a huge fan of the War Powers Resolution, per se. To me, it is silly, sort of like a law that affirmed the Congress’s authority to levy taxes, borrow and coin money, and establish Post Offices. In the same section where these powers are delegated, the Constitution clearly stipulates that Congress shall have the power to declare war. So why does there also need to be legislation?

Most presidents have complied with the spirit of the War Powers Resolution, but more out of deference to the notion that Congress has some role in whether the United States goes to war, not out of genuine conviction that Congress does/should have the most important role in deciding such things. By all appearances, President Obama is bypassing the charade.

I anxiously await his response to the senators’ letter, and am likewise curious to see if other senators raise questions about the administration’s intentions.

Fiscally Conservative, Socially Liberal Virginians

The Washington Post just did a major poll of Virginians and tantalizingly included this note in writing up the results:

In contrast to four years ago, about as many Virginians consider themselves to be liberal on social matters as call themselves conservative. Fiscal conservatism is on the rise, but on these social issues, it’s liberalism that’s ticked higher.

But those questions were not included in the published data. Thanks to the generosity of Post polling director Jon Cohen, I can report that the percentage of Virginians who said they were socially liberal or moderate and fiscally conservative went from 16 in 2007 to 23 in the latest poll. This reflects a small increase in the number of social liberals and a larger increase in the number of fiscal conservatives. And here are the tables on those questions:

We’ve written about fiscally conservative, socially liberal voters before, notably here and here, and in relation to Virginia and in the Republican party. Apparently when you ask people, “Would you describe yourself as fiscally conservative and socially liberal?”, you get a higher percentage than when you ask the questions separately, as the Post did. When the Zogby Poll asked that question to actual voters in 2006, fully 59 percent said yes. Broader background on the “libertarian vote” here.