Archives: August, 2012

Ryan vs. Romney on Pentagon Spending

A Politico article on Paul Ryan’s views on the Pentagon’s budget concludes:

A key question for the coming weeks will be how Ryan, one of Washington’s biggest budget wonks, interprets and explains the Romney campaign’s positions on defense spending. That could be a clue as to how realistic he actually believes they are.

I certainly hope so.



I was among the first to comment on Romney’s plan to spend at least four percent of GDP on the Pentagon’s base budget (war costs would be extra), and have revisited the question several times since. I have separately looked at Paul Ryan’s budget (here and here), and pointed out how military spending increased under his plan, just not as much as Romney.



During a series of lectures over the past several months, and with help from Charles Zakaib and Andy Stravers, I’ve included a variation on the chart at bottom, showing Romney’s four percent plan (achieved within four and eight years); projected Pentagon spending under the Ryan plan; the current baseline per OMB; and the levels called for under sequestration, per CBO’s latest (.pdf). I’ve adjusted these for inflation from DoD’s 2012 Green Book (.pdf) for 2012-2016, and extrapolated over the out years. I’ve estimated Romney’s totals using CBO’s GDP estimates (Romney’s own projections assume higher GDP, and therefore more military spending than shown here).



Here is how the totals shake out relative to the current baseline over the ten-year period, 2013-2022, in constant dollars:


  • Romney 4 percent in four years: $1,852 billion in additional spending
  • Romney 4 percent in eight years: $1,704 billion in additional spending
  • Ryan plan: $409 billion in additional spending
  • Sequestration: $504 billion in savings




By pledging to increase the military’s budget above the rate of inflation, Ryan’s basic argument is that the Pentagon’s budget should remain near historic highs in real, inflation-adjusted terms. That would mean spending more than we did during much of the Cold War, and much more than we did in the 1990s. I think we are safer now than when we were confronting the Soviet Union, and that we could and should spend less. I hope that reporters and prospective voters will ask Paul Ryan if he thinks we are safer. His budget implies that we are not.



Still, Ryan has not (yet) endorsed the kinds of massive military spending increases that Romney champions. What’s more, the Ryan plan spelled out specific proposals for cutting domestic spending, both discretionary programs and entitlements, that would allow the Pentagon’s budget to grow above the current baseline. Mitt Romney has not.



So how will Paul Ryan help Mitt Romney make up the difference? What additional spending will be cut, taxes raised, or debt increased?



As I explain in today’s Cato Daily Podcast, I anxiously await the answer.


Is the American Electorate that Dumb?

Today POLITICO Arena asks:

Can Ryan boost Romney’s poll numbers?

My response:

Ryan is the shot in the arm that Romney needed. If last night’s “60 Minutes” interview of the two is any indication, Romney is finally focused on the big issues. It’s rare that a vice-presidential pick adds much to a ticket, but this case may be the exception. So, yes, Ryan can boost Romney’s poll numbers. Just look at the weekend crowds.

Ryan put it simply: The country’s going broke. You’d never know that from listening to the Democratic response to the pick. For that side, it’s all about what the Romney-Ryan team will take away from seniors, women, students, and the middle class – as if all of that ”stuff” were free from government. They’re counting on seniors being too senile, women being too emotional, young people being too uneducated, and the middle-class being too focused on their mortgages to understand the situation we’re in, where we borrow 40 percent of what we spend and add trillions to the national debt every year. The Ryan budget won’t push Granny over the cliff. The Obama team’s head-in-the-sand will.

And it isn’t as if the Obama team doesn’t know exactly what they’re doing. In Obama’s latest ad, run last night during the Olympics closing ceremonies, he himself states plainly that the nation faces two fundamentally different visions of where we’re going. But he talks only about government benefits, not about costs – the “Life of Julia” nonsense. It’s a cynical view of the American public – a view that this election, more than any in recent memory, will put to the test.

New Video Is a Strong Indictment of Obama’s Dismal Record on Spending

The burden of federal spending in the United States was down to 18.2 percent of gross domestic product when Bill Clinton left office.

But this progress didn’t last long. Thanks to George Bush’s reckless spending policies, the federal budget grew about twice as fast as the economy, jumping by nearly 90 percent in just eight years This pushed federal spending up to about 25 percent of GDP.

President Obama promised hope and change, but he has kept spending at this high level rather than undoing the mistakes of his predecessor.

This new video from the Center for Freedom and Prosperity Foundation uses examples of waste, fraud, and abuse to highlight President Obama’s failed fiscal policy.

Good stuff, though the video actually understates the indictment against Obama. There is no mention, for instance, about all the new spending for Obamacare that will begin to take effect over the next few years.

But not everything can be covered in a 5-minute video. And I suspect the video is more effective because it closes instead with some discussion of the corrupt insider dealing of Obama’s so-called green energy programs.

Does It Matter that Paul Ryan Is on the GOP Ticket?

The honest answer is that it probably means nothing. I don’t think there’s been an election in my lifetime that was impacted by the second person on a presidential ticket.

And a quick look at Intrade.com shows that Ryan’s selection hasn’t (at least yet) moved the needle. Obama is still in the high 50s.

Moreover, the person who becomes Vice President usually plays only a minor role in Administration policy.

With those caveats out of the way, the Ryan pick is mostly good news.

Here are the reasons why I’m happy.

Here are two reasons why I’m worried.

  • Both Romney and Ryan are somewhat sympathetic to a value-added tax. My worst-case scenario is they win the election, but then can’t get a good budget approved because of some squishy Republican senators who put self interest above national interest. Romney and Ryan then decide that this European-style national sales tax is the only way – on paper – of making the budget balance. In reality, of course, we’ll suffer the same fate as Europe since the VAT revenues will be used to finance ever-larger government.
  • Ryan has some very bad votes in his past, including support for TARP, the auto bailout, the no-bureaucrat-left-behind education legislation, and the reckless Medicare prescription drug entitlement. Everyone says to ignore those votes because Ryan knew he was voting the wrong way, but if he’s already made some deliberately bad decisions for political reasons, what’s to stop him from making more deliberately bad decisions for political reasons?

But as I said above, don’t read too much into Ryan’s selection. if Republicans win, Romney will be the one calling the shots.

Though this does give Ryan a big advantage the next time there’s an open contest for the GOP nomination – either 2016 or 2020.

The Fourth Amendment Doesn’t Allow Roving Licenses to Detain People Without Probable Cause

This blogpost was co-authored by Cato legal associate David Scott.

Searches and seizures have long been held to be unreasonable under the Fourth Amendment unless supported by probable cause. There are only a few narrow exceptions to that probable cause requirement.

The Supreme Court found one such exception in the 1981 case of Michigan v. Summers, which gave police a limited authority to detain the occupants of premises that were lawfully being searched. The Court justified this limited detention by invoking the need for officers to have “unquestioned command” of the premises and prevent flight should incriminating evidence be found, thus “minimizing the risk of harm to the officers” and facilitating “the orderly completion of the search.”

In 2005, police officers were preparing to execute a search warrant on a home in Wyandanch, New York, when they witnessed Chunon Bailey—who was unaware of the search warrant or its pending execution—exit the home and begin to drive away. Officers followed and subsequently stopped Bailey, detaining him about a mile from the premises to be searched. The government contends that Bailey’s detention was proper pursuant to Summers.

The district court agreed and the U.S. Court of Appeals for the Second Circuit affirmed, holding that the interests expounded in Summers justify the detention of a prior occupant of the premises to be searched so long as the detention is made “as soon as practicable” after identifying “an individual in the process of leaving the premises.” The Supreme Court agreed to review the case and Cato has now joined the ACLU and the New York Civil Liberties Union in filing an amicus brief urging the Court to reverse the Second Circuit.

Our argument is three-fold. First, the Second Circuit’s extension of Summers lacks any limiting principles to the power to detain without probable cause. Without an outer limit, the Summers exception would be applicable to any number of situations in which detention without probable cause is unreasonable. A warrant to search a particular place would be transformed into a roving license to detain any person thought to be associated with that place.

Second, the Second Circuit’s attempt to establish a limiting principle by requiring the detention to occur “as soon as practicable” is insufficient because it has no principled basis and is inconsistent with the underlying values of the Fourth Amendment. Furthermore, the “as soon as practicable” standard provides no clear guidance to officers as to when a detention is permissible.

Finally, the extension of Summers here is unnecessary to ensure that officers maintain “unquestioned command” of the premises during a search: The detention of an individual away from the premises to be searched has nothing to do with police “command” of the premises, but is instead merely a means of holding someone pending the speculative emergence of probable cause.

The Supreme Court will hear argument in Bailey v. United States on October 30.

Paul Ryan Gets Free Markets

Paul Ryan is an excellent choice as running mate for Mitt Romney. He understands federal spending and tax policies in enormous detail. He has said that he started reading federal budgets when he was in high school. He’s also read Global Tax Revolution, my book with Dan Mitchell about the implications of globalization and tax competition. He knows that the American economy will not thrive with high tax rates, especially on business income and capital. He shares Mitt Romney’s goal of chopping the corporate tax rate to revive investment and job creation.

Ryan is an articulate defender of free enterprise, and he consistently argues not just for the practical advantages of smaller government but also about the moral imperative to cut. America will face giant fiscal and economic emergencies unless we make major reforms to the government. Mitt Romney, of course, has had a rather mixed record regarding free markets and limited government. And Ryan–as a good politician–has compromised many times as well. But if the next administration is Republican, and if it decides it wants to push major reforms, Paul Ryan is uniquely qualified to lead the charge.

Illegally Wiretapped? Sorry, the Courts Won’t Help You.

Even if you can prove that you’ve been illegally wiretapped by the government, in violation of the federal Foreign Intelligence Surveillance Act, you can’t seek restitution unless the government decides to try to use the illegally-acquired evidence against you.  That’s the upshot of the Ninth Circuit’s ruling last  week in the case of Al Haramain v. Obama, which invoked “sovereign immunity” to overturn an award of damages to an Islamic charity that discovered (thanks to an error by the government) that it had been targeted in the warrantless wiretapping program launched by President Bush.

As a narrow matter of statutory construction, the decision may well be correct—I leave that question to colleagues with a firmer grasp of “sovereign immunity” jurisprudence. But it ought to be disturbing on policy grounds for a couple of reasons.

First, when Congress voted in 2008 to grant retroactive legal immunity to telecoms that had aided the NSA’s illegal surveillance, the key argument was that the companies, which had been assured by the government that everything was hunky dory, shouldn’t be the ones held responsible if those assurances were false. Supporters of the legislation, like Sen. Kit Bond, stressed during floor debates that targets of any purportedly illegal wiretapping “can still sue the government.” In rejecting one challenge to the FAA, the Ninth Circuit itself held that the immunity provision didn’t violate the separation of powers because aggrieved parties could still seek relief from the courts against the government. The key premise behind that controversial policy decision was that citizens would still have a meaningful forum to challenge the legality of that surveillance—but if the main statutory provision providing for redress doesn’t apply to the government in the same way as it does to private actors, that turns out to have been something of a false promise, as the burden on challengers suddenly becomes much higher.

Second, the history of surveillance abuses by U.S. intelligence agencies—the history that gave rise to the entire FISA framework in the first place—is emphatically not a history of overt, public prosecutions based on illegally obtained information. Unsurprisingly, when J. Edgar Hoover ordered illicit surveillance of civil rights activists, he was generally not eager to parade his conduct before federal judges. Rather, the improper “use” of information typically took the form of targeted leaks to press,  anonymous harassing letters, or the exploitation of private and privileged information for political advantage. These activities were, by design, almost impossible to trace back to the government. The same, of course, could be said of the surveillance itself—but that at least tends to necessitate some kind of paper trail, as a practical as well as legal matter.  Realistically, the way to prevent improper use is to deter improper collection.

These considerations are particularly pressing in the broader context of the government’s efforts to shield its intelligence and counterterror activities from judicial scrutiny. We should, as they say, “connect the dots” and recognize this ruling as part of a larger, disturbing pattern, including its promiscuous invocation of the state secrets privilege.

In a case challenging the latest version of  NSA’s vaccum-cleaner wiretapping, Amnesty v. Clapper, the Obama administration is arguing that only those who can demonstrate that they have actually been wiretapped (under a top secret program) are eligible to sue the government—and that therefore the courts should toss out a suit brought by lawyers, journalists, and activists who regularly communicate with clients and sources in the Middle East, reasonably believe (based on public information) that their communications are highly likely to be swept up in the NSA’s broad collection programs, and have taken costly measures to reduce the risk of this occurring. The trouble here is that almost none of the thousands or millions of people intercepted—many (if not most) of whom are entirely innocent—will ever be informed about the surveillance of their calls and e-mails.  As the legislative history of FISA makes clear, Congress expected that most electronic surveillance for intelligence purposes was not necessarily being conducted with a view to criminal prosecution. Moreover, federal prosecutors actually decline to pursue about 80 percent of the terrorism-related cases referred to them by the FBI. Perversely, then, the most evidently guilty stand some chance of learning they have been  spied on—but the innocent almost never will, and thus never have an opportunity to have a court determine whether their rights have been violated. Because the plaintiffs in Amnesty are seeking a ruling on the legality of current and future surveillance, rather than monetary damages for past conduct, this latest ruling doesn’t necessarily sink their suit, which the Supreme Court is slated to hear in October to determine whether the challenge can proceed. There too, however, the Obama administration’s position is that it should not.

Al-Haramain is the extremely rare case in which surveillance targets learned they’d been wiretapped without the fruits of surveillance being introduced in the course of prosecution, but now it seems even that isn’t enough. In general, federal law regards illegal interception as an intrinsic harm that makes the wiretapper liable for monetary damages, even if nothing is subsequently done with the information.  obtained. That’s the rule that obtains for both government and private actors in the case of ordinary wiretapping, and even under FISA the same is normally true for private actors like those retroactively-immunized telecoms, but as the Ninth Circuit interprets the law, the government can’t be held liable for the illegal wiretapping itself; only for what it later does with that information. As the court itself notes, “such a structure may seem anomalous and even unfair.” The Founders, after all, weren’t just concerned with shielding citizens against unreasonable government use of illegally obtained information, but with “the right of the people to be secure… against unreasonable searches and seizures.”  But on the court’s reading, the law as currently written doesn’t allow that right to be vindicated here. For those keeping track, we’re now approaching seven years since the original exposure of Bush’s version of the NSA spy program, widely deemed illegal by experts, yet with no decisive public ruling on the question from our courts, and no real prospect that the thousands of innocents spied upon will ever get an opportunity to seek redress.

This, it seems, is our surreal new reality: Even if the government breaks the law, violating the rights of thousands of citizens, none of them can do anything about it unless the government volunteers to reveal exactly whose rights it has violated, which it won’t. If by sheer chance any of them do find out about it, they can’t seek to be compensated for the violation without the government’s permission, which it hasn’t given. Strip away the legal Latin, and in the end, you’ll find the universal mantra of the bully: “I’m stronger, and you can’t make me stop if I don’t want to.”