Archives: February, 2013

Quebec Is NOT for Lovers… of Freedom

I was born and raised in Québec, love the city of Montréal, and remain fond of the French language, but I found it much easier to leave the province half-a-lifetime ago because of things just like this:

One of Montreal’s hip restaurants on St. Laurent Boulevard has caught the eye of the language police.

Buonanotte was paid a visit recently by the people at the Office Quebecois de la langue francaise. They followed up with a written complaint about a couple of words on the Italian restaurant’s menu. One being “pasta”, the other “bottiglia” to indicate its wine selection by the bottle.

It seems these words are violations to Bill 101 because there are no French words describing what they mean.

Yes, there are better ways of discouraging the tourism of freedom-loving Canadians and Americans, but this will do quite well.

Almost as offensive as the trampling of free speech is the insulting assumption that Montrealers who patronize “hip” Italian restaurants are unfamiliar with the word “pasta” and cannot deduce the meaning of “bottiglia”… when it appears at the head of a wine list.

That such petty villany against liberty can be perpetrated in Canada is due to the “notwithstanding clause” of its Charter of Rights and Freedoms—Canada’s equivalent to the U.S. Bill of Rights. In essence, it allows provincial governments to abrogate “fundamental” rights “guaranteed” by the Charter (and to quote Pricess Bride, I don’t think they know what those words mean).

It’s hard enough defending individual liberty in a nation whose most basic laws expressly protect it. How much more difficult it must be in a nation where they don’t….

Supreme Court Rejects Roving License to Detain People Incident to Far-Away Search

While the Fourth Amendment may not have passed the smell test in one Supreme Court ruling yesterday – which problem would effectively go away if we ended the Drug War – it handily survived questionable police tactics in a far more important case, Bailey v. United States.  

In Bailey, the Court rejected the argument that police should be able to detain someone anywhere at any time if they see that person exiting a location for which there’s a valid search warrant.  Instead, by a 6-3 vote in an opinion written by Justice Anthony Kennedy, the Court ruled that the power to detain incident to the execution of a search warrant – established in the 1981 case of Michigan v. Summers – is limited to the “immediate vicinity” of the premises to be searched.  

The police may want broader detention powers, but none of the justifications for the Summers exception to the normal probable cause requirement – officer safety, facilitating the search, preventing flight – remain in cases where police detain someone beyond that immediate vicinity.  In Bailey, police saw the defendent leave a home they were about to search and, rather than detaining him there and executing the search warrant, followed and subsequently stopped him nearly a mile away. 

As I wrote last summer when Cato joined the ACLU in filing a brief in the case, the government’s argument here had to fail for at least three reasons: 

First, the extension of Summers lacks any limiting principles to the power to detain without probable cause.  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 attempt to establish a limiting principle by requiring the detention to occur “as soon as practicable” is inconsistent with the underlying values of the Fourth Amendment and provides no clear guidance to officers.

Third, the extension of Summers is unnecessary to ensure that officers maintain control of the premises during a search.  The detention of an individual away from the searched premises is merely a means of holding someone pending the speculative emergence of probable cause.

The Supreme Court agreed, albeit with an unusual trio of dissenting justices: Stephen Breyer, Clarence Thomas, and Samuel Alito.

Congratulations to Kannon Shanmugam, the co-author of the “Looking Ahead” piece in last year’s Cato Supreme Court Review, who argued Bailey.  (Full disclosure: My fiancee, Kristin Feeley, was on the briefs – so congratulations to her too.)

Clever Hans vs. the Fourth Amendment

In the early 1900s, the German public was fascinated by a mathematical Mr. Ed named Clever Hans, an Orlov Trotter horse that seemed to be capable of counting, doing basic arithmetic, and even solving elementary word problems—which, lacking the dexterity to grasp a number two pencil, it would answer by stamping its hooves. Eventually, of course, it was proven that Hans was doing nothing of the sort: the horse was perceptive rather than clever, and had been picking up on subtle, subconscious cues from his handler that let him know when to begin stamping and when (having arrived at the correct answer) he should stop.

A century later, academic researchers have shown that even well-trained drug-sniffing dogs are subject to the “Clever Hans Effect,” often alerting to non-existent drugs or explosives in locations where their human handlers have been falsely told they were present. Nor are those findings strictly academic. A recent analysis by reporters at the Chicago Tribune found that field records showed that drug-sniffing dogs produced a disturbingly high level of false positives: in only 44 percent of cases where dogs alerted did a subsequent search turn up contraband. Their success rate was even lower when it came to certain minorities: when dogs alerted on a Hispanic driver, only 27 percent of ensuing searches found any drugs, suggesting that the pooches may be picking up on their handlers’ subconscious bias, effectively legitimizing a form of racial profiling.

All this should make the Supreme Court’s unanimous decision today in Florida v. Harris disappointing to anyone who cares about the Fourth Amendment right to be free of unreasonable searches and seizures. Overturning a ruling by the Florida Supreme Court, the decision holds that a well-trained drug dog’s alert during a traffic stop generally provides probable cause for a warrantless search of the vehicle—even though, as in this case, the dog repeatedly alerted at a car that turned out not to contain any of the chemicals it had been trained to detect. Urging the need for a “flexible” standard, the Court saw no need for police to maintain or provide any record of a dog’s reliability in the field—such as a count of false positives—and even suggested that apparent “false positives” might not be errors at all, since a dog might be picking up “residual odors” from drugs that had previously been in contact with the vehicle. Even if that’s true, however, it’s not clear why it cuts in the government’s direction here: if the dogs are that sensitive, it seems like an additional reason to doubt that an alert provides probable cause to believe contraband is currently present.

The bigger problem, however, is that the controlled conditions in which dogs are evaluated don’t typically match field conditions very well: the handlers there often know where on the test course drugs are located—and even when they don’t, have no incentive to want the dog to alert at any particular location, which removes those subconscious signals from the equation. Bizarrely, the Court nevertheless held that the “better measure of a dog’s reliability… comes away from the field, in controlled testing environments.” Worse, the opinion also provides police deparments with an added perverse incentive to avoid collecting data on the real-world reliability of their sniffers: while a dog’s alert provides prima facie probable cause for a search, the Court held, defendants must be given an opportunity to challenge the reliability of a particular search in court—with field performance as one potential grounds for challenge. But, of course, if that’s the case, keeping records of false positives can only serve to give defendants grounds to invalidate a search that would otherwise be presumed valid. In effect, then, the Court has handed police what may well be a blank check for pretextual searches, while discouraging the collection of data that might prove that’s what they’ve done.

Media Matters Misses on Keystone XL

Media Matters is not a particularly big fan of Cato’s climatologists and their views on climate change. Apparently Media Matters prefers anthropogenic climate change be portrayed as producing a much more desperate situation than either Pat Michaels or myself is fond of presenting.

In a piece last week, Media Matters’s Jill Fitzsimmons included a quote from my recent Wall Street Journal op-ed as supporting one of the “myths” about the Keystone XL pipeline that she was set on busting. While my WSJ article was largely focused on the climate aspects of the Keystone XL, she chose a sentence from it that had to do with rerouting the pipeline to avoid the (supposedly) environmental sensitive Sands Hills region of Nebraska. Apparently she didn’t agree with my statement that “the arguments against the pipeline have all but evaporated. The route now largely bypasses the most ecologically sensitive regions,” despite a slew of environmental studies that so concluded.

But, I am less concerned about what she did quote from me than what she didn’t.

The first “myth” she took on was “Would Keystone XL contribute to climate change?” Fitzsimmons excerpts several prominent articles where the “myth” that it wouldn’t was promulgated. She quotes pieces from the Washington Post, the Washington Times, Fox News, and the Washington Examiner. But my WSJ article was not among them.

The reason why became quickly obvious—despite her claims, she really wasn’t interested in assessing the actual climate change impact of the pipeline oil, but rather in leaving the impression that it must be large.

She did this by employing the tactic commonly used by those who think that their climate mitigation plan is actually going to “do something” about climate change—that is, focus on greenhouse gas (GHG) emissions rather than climate change.

Emission mitigation from such plans, free from any larger perspective, often sounds impressively large. For instance, Fitzsimmons quotes a recent Congressional Research Service report that “the estimated effect of the proposed Keystone XL pipeline on the U.S. GHG footprint would be an increase of 3 million to 21 million metric tons of GHG emissions annually.” 

Wow. That sounds like a lot.

But, she left out that this is only between 0.06% and 0.3% of the annual U.S. carbon dioxide emissions.

She also left out the actual climate change impact of what such emissions would cause—which was, after all, the topic of her “myth.”

Since she was familiar with my WSJ article, I know she was familiar with the answer about the climate.

Here is what I wrote:

A study last year by the Congressional Research Service found that the greenhouse-gas emissions from energy produced from Canadian tar-sands oil delivered by the pipeline would increase U.S. annual greenhouse gas emissions by a paltry 0.06%-0.3%. These additional emissions have virtually no impact on the rate of global warming, increasing it by an infinitesimal 0.00001 degrees Celsius per year. This amount is too small to detect, much less to worry about.

Fitzsimmons, of course, doesn’t have to believe me, but before she doesn’t, she ought to try to do the calculation for herself. I am sure that she won’t like what she finds—which is that the story that the Keystone XL pipeline will have virtually no impact on the future of climate change is not a myth at all.

Protests at the White House, rallies on the National Mall, Media Matters articles, and all other forms of foot stomping won’t do anything to change that fact.

New Hampshire’s Governor vs. Kids and Taxpayers

In her budget address before the legislature last Thursday, New Hampshire Governor Maggie Hassan pledged to repeal the nascent Opportunity Scholarship Act (OSA). The law grants tax credits to businesses that help low- and middle-income students afford independent and home schooling.

If the governor’s goal is saving money, as she claims, then she should oppose the repeal. The fiscal note prepared by the governor’s own Department of Education states that repealing the OSA would actually cost the state half a million dollars over the next biennium.

The OSA was designed to aid low- and middle-income families while saving money. The maximum average scholarship size is only $2,500, significantly lower than the more than $4,300 that the state allocates for each public school student, and vastly lower than the total public school spending figure of $15,758 per pupil. Moreover, businesses receive tax credits for only 85 percent of their donations, so even assuming the maximum average scholarship size, the state saves nearly $2,200 whenever a student switches out of the public school system—and the savings for local taxpayers are far larger. 

The Josiah Bartlett Center for Public Policy estimates that the OSA would save the state $8.3 million over the next four years. A repeal would eliminate those savings and increase costs.

High-income families already have school choice. They can afford to live in communities that have high-performing public schools or to send their children to independent schools. Low-income families have few, if any, choices besides their assigned local public school.

On the 2011 New England Common Assessment Program (NECAP) mathematics exam, eighth grade public school students in Bedford and Windham scored 84 percent and 89 percent proficient and above respectively compared to 55 percent in Claremont and 42 percent in Stratford. Unsurprisingly, the median household income is $121,452 in Windham and $114,681 in Bedford compared to $41,721 in Claremont and $33,571 in Stratford.

But even in high-performing districts, we should not expect that any one school is capable of meeting all the diverse needs of all the students who happen to live nearby. Not all children thrive in the traditional classroom environment. Some students need extra support academically, socially or emotionally. Traditional public schools may work well for most children, but there is no school that is right for all children.

The overwhelming consensus of randomized controlled studies, the gold standard of social science research, have demonstrated that students attending schools of their choice perform as well or better than their public school peers. Moreover, a study of Florida’s scholarship tax credit program also found a modest improvement in the academic performance of public school students in response to the increased competition.

Are Spending Cuts Good Politics?

Grover Cleveland says “yes.”

Calvin Coolidge says “yes.”

Chris Edwards says “yes.” From Downsizing the Federal Government: 

Another myth is that policymakers cannot make budget cuts without a backlash from voters. Yet reform efforts in the 1990s did not lead to a voter rebuke. In 1996, the Republicans were denounced viciously when they were reforming welfare. But they stuck together and succeeded, and today the achievement is widely hailed. Also in the 1990s, the Republicans proposed reductions to many sensitive programs including Medicare, Medicaid, education, housing, and farm subsidies. In their budget plan for 1996, House Republicans voted to abolish more than 200 programs including whole departments and agencies. 

The Republicans who led on these reforms were not thrown out of office, despite many of them being specifically targeted for defeat in 1996. The most hardcore budget cutters in the 104th Congress were freshmen who were reelected with larger vote margins than they had received in 1994. They included John Shadegg and Matt Salmon of Arizona, Joe Scarborough of Florida, David McIntosh and Mark Souder of Indiana, Steve Largent and Tom Coburn of Oklahoma, Mark Sanford of South Carolina, Van Hilleary of Tennessee, and Mark Neumann of Wisconsin. Indeed, many budget-cutting Republican freshman got reelected in districts that went for Bill Clinton on the presidential ticket in 1996. The high-profile leader of the House budget cutters, John Kasich (R-Ohio), consistently won reelection throughout the 1990s with two-to-one margins. In sum, cutting the budget can be good politics when done in a serious and up-front manner. 

Republicans Go From Daddy Party to Baby Party

During the Cold War Republicans presented themselves as the Daddy Party, prepared to defend America in a dangerous world. They won an enduring electoral advantage on international issues. 

But the GOP lost that advantage with the end of the Cold War. The world is still dangerous, but not so much to America. Terrorism is a monstrous crime that frightens, but it does not pose an existential threat. And the United States far outranges any other power or group of powers militarily. 

The Republican Party has had trouble adjusting to the new world. Losing its automatic advantage on international issues has shifted the political battle further to economic and domestic issues. George W. Bush’s disastrous tenure further soured Americans on the GOP. Mitt Romney spent most of the campaign doing the Maori Haka in an unsuccessful attempt to portray Barack Obama as weak in foreign policy.  

The dishonest and immature campaign against secretary of defense nominee Chuck Hagel demonstrates that the Daddy Party has turned into the Baby Party. There are important defense issues that deserve serious debate. But the Republicans are not interested in conducting one. 

The vicious claims of anti-Semitism from some critics were risible, an attempt to foreclose discussion.  Much of the opposition was driven by politics rather than substance:  war-hawks like Lindsey Graham (R-SC) used Hagel’s confirmation hearing to posture rather than discuss serious defense issues. John McCain (R-AZ) spent most of his time attempting to vindicate his awful judgment in having supported the Iraq war, which left thousands of Americans dead and tens of thousands wounded, created carnage in Iraq, and empowered Iran. 

Even worse, though, Sen. McCain admitted that much of the angry opposition, which led Republicans to block a vote on Hagel’s nomination, was personal. Republicans were irritated that Hagel had the temerity to criticize President Bush, who did so much to ruin America’s fiscal future and strategic position. 

Reported the Huffington Post:

There’s a lot of ill will towards Senator Hagel because when he was a Republican, he attacked President Bush mercilessly, at one point said he was the worst president since Herbert Hoover, said the surge was the worst blunder since the Vietnam War, which is nonsense, and was anti his own party and people,” McCain said during a Thursday interview with Fox News. “You can disagree, but if you’re disagreeable, people don’t forget that.” 

At least McCain agreed that the filibuster would end, probably on February 26, when the next vote on Hagel’s nomination is scheduled. But the GOP has wrecked what little remained of its foreign policy reputation. The world may be in flames, but Republicans don’t care. They are upset that Chuck Hagel had the courage to break with neoconservative orthodoxy when it mattered. While he might not be as transformational a defense secretary as some of his supporters hope, he can be expected to bring a fresh and thoughtful perspective to a foreign policy which is largely brain dead. Most important, it would be good to have a Pentagon chief who understands why war truly should be a last resort.