Archives: November, 2013

Happy Repudiation Day!

Today (Nov. 23) is Repudiation Day, a special holiday recognized by law in Frederick County, Maryland, where I live. In 1765, judges here “became the first to repudiate the British Stamp Act designed to maintain the costs of keeping British troops in America. [They] decided they were not going to charge the tax and refused to stamp the documents … The late Judge Edward Delaplaine called [them] the ‘12 immortal judges.’” More at the Wikipedia entry and in this 2006 column by Joe Volz at the Frederick News-Post (via Brian Griffiths, Red Maryland/Baltimore Sun). 

Can you think of any other holiday that celebrates judicial resistance to overweening government and onerous taxation? I can’t. 

Further Reflections on Harry Reid’s Nuclear Bombshell

The post-mortems today, after Harry Reid yesterday dropped the “nuclear option” on the Senate floor, then headed out of town, contain few surprises. As expected, the editorialists at the New York Times, headlining their thoughts with “Democracy Returns to the Senate,” called the 52-48 vote to end filibusters for appellate court nominees “long overdue.” The Times’ history goes back all of five years, conveniently ignoring the origins of the practice in the 108th Congress, when Democrats were in the Senate minority, as I outlined here and here yesterday. (See here for a detailed discussion of the period before that.)

At the Washington Post, however, one might be surprised to find not only the editors but two reliably liberal columnists, Dana Milbank and Ruth Marcus, on the other side. But in an effort to be even-handed, the editors, among other things, call the Republican rationale for recently filibustering three Obama nominees to the DC Circuit Court of Appeals—that the court’s workload does not justify adding new judges—a “pretext.” Yet as I outlined yesterday, the facts say otherwise, clearly, and do so far more than when Democrats used that rationale, successfully, in 2006.

Why We Shouldn’t Expand Government

Fareed Zakaria’s new column is titled (at least on the Washington Post website) “Why Americans Hate Their Government” or (in the paper) “Why We Hate our Government.” But some of the points he makes might better be seen as reasons not to keep on expanding a government that has grown beyond its competence.

Washington is having one of its odd debates as to whether the Obama administration’s rollout of HealthCare.gov was worse than the Bush administration’s response to Hurricane Katrina. But whatever the answer, if there is one, the real story is that both are examples of a major, and depressing, trend: the declining competence of the federal government. Paul Volcker, former chairman of the Federal Reserve, has been saying for years that most Americans believe their government can no longer act effectively and that this erosion of competence, and hence confidence, is a profound problem.

“The federal service is suffering its greatest crisis since it was founded in the first moments of the republic,” scholar Paul Light writes in his book “A Government Ill Executed.”

Over the past decade, the federal government has had several major challenges: Iraq, Afghanistan, a new homeland security system, Katrina and Obamacare. In almost every case, its performance has been plagued with mismanagement, massive cost overruns and long delays.

Zakaria argues that this was not always the case: “In the 1940s, ’50s and ’60s, federal agencies were often lean, well managed and surprisingly effective.” Maybe so, depending on your metric. But of course in those decades the federal government had not yet undertaken cradle-to-grave responsibilities. Maybe the lesson is that if you want competent government, you should limit it to manageable tasks.

On the other hand,

If you want the federal government to tax (and borrow) and transfer $3.6 trillion a year, if you want it to build housing for the poor and give special benefits to Alaska Natives, if you want it to supply Americans with health care and school lunches and retirement security and local bike paths, then you have to accept that such programs come with incentive problems, politicization, corruption, and waste.

In that case, this is the business you have chosen.

Why Is the ACLU on the Wrong Side of the Wedding Photographer Case?

Elane Photography LLC v. Vanessa Willock is the case in which an Albuquerque, NM woman has (thus far successfully) sued husband-and-wife photographers under New Mexico’s “public accommodations” discrimination law for their reluctance to shoot photos of her commitment ceremony to a female partner. One of the most dismaying elements of the case is that the American Civil Liberties Union has taken the anti-liberty side. Adam Liptak in the NYT:

I asked Louise Melling, a lawyer at the American Civil Liberties Union, which has a distinguished history of championing free speech, how the group had evaluated the case.

Ms. Melling said the evaluation had required difficult choices. Photography is expression protected by the Constitution, she said, and Ms. [Elane] Huguenin acted from “heartfelt convictions.”

But the equal treatment of gay couples is more important than the free speech rights of commercial photographers, she said, explaining why the A.C.L.U. filed a brief in the New Mexico Supreme Court supporting the couple.

The ACLU of all groups should have no reason to see this as a “difficult choice” or as a conflict of constitutional values. Free speech and expression rights, which extend to the right not to engage in expression on behalf of a cause one deplores, are central constitutional values and the ACLU is the very first organization people turn to to defend them. Equal treatment of gay couples by private actors, on the other hand (as distinct from by the government itself) has no clear status as a constitutional value at all.

Shame on the ACLU for selling out civil liberties principle in favor of its current notions of civil rights. As Jacob Sullum points out, if it “cannot bring itself to stand up for Huguenin’s rights, it should at least have the decency to sit this one out.” In the mean time, it would do well to adopt some new and changed name on its letterhead, such as American Civil Rights Union.

I’m happy to say that Cato (with law professors Dale Carpenter and Eugene Volokh) filed an amicus brief supporting the photographers’ rights before the New Mexico Supreme Court, albeit unsuccessfully. Certiorari has now been sought at the U.S. Supreme Court.

Harry Drops the Bomb

Well Harry Reid went nuclear, as he’d threatened to do all week. And by a vote of 52-48, Senate Democrats did his bidding just a couple of hours ago. I wrote about his hypocrisy at NRO this morning. He’s the same Harry Reid who assured us only a few months ago that “We’re not talking about changing the filibuster rules that relates to nominations for judges” (Press Briefing, 7/11/13) and “We’re not touching judges. That’s what they were talking about. This is not judges.” (NBC’s “Meet The Press,” 7/14/13). Well we are talking about judges. And we’ll be talking about them quite a bit more, I’m afraid.

The Democratic hypocrisy on the subject boils down to this. After sitting on George W. Bush’s appellate court nominees during his first two years when they controlled the Senate—never even holding hearings—Democrats for the next two years, after losing the Senate in the 2002 midterm elections, conducted unprecedented filibusters of Bush’s appellate court picks—all of which ended only with the “Gang of 14” compromise in 2005. But now that the Republican minority has used that same practice—directed this session only at the latest D.C. Circuit nominees—Democrats have moved to strip it from them—and not by a two-thirds vote of the Senate, as Senate rules require, but by a simple majority. It’s heads I win, tails you lose.

But it doesn’t end there. After Obama’s nominee Sri Srinivasen was unanimously confirmed for the D.C. Circuit last May, Republicans have filibustered Obama’s three latest nominees for that circuit for practical reasons, not for the ideological reasons that drove Democratic filibusters. As I outlined in my NRO piece, there simply isn’t enough work in the D.C. Circuit to justify three more judges. For 17 straight years that court has had the lowest number of appeals filed and the lowest number of appeals terminated of all the circuits.

So what’s the upshot of Reid’s move? The most obvious one is this: If Harry Reid is willing to drop the nuclear bomb for these three nominees—given all that that implies about the sanctity of Senate rules—he must be expecting some return. It’s not for nothing that the D.C. Circuit Court is called the second most important court in the land. It’s the court that will be deciding challenges to the vast executive branch “lawmaking” by which the Obama administration today is ruling America, covering everything from health care to environmental regulations, labor arrangements, financial affairs, and so much more. With a divided Congress, Obama can’t get things done the constitutional way, so he rules by diktat—and hopes the courts will uphold his unilateral decisions. Given the docket of the D.C. Circuit, rule by executive order just got easier.

But Obama has three more years to name judges for the other circuits as well, and possibly for the Supreme Court, and that got easier for him too. And of course it’s now easier to change other Senate rules by a simple majority. But what goes around comes around. And the way the polls are going in the wake of the Obamacare debacle, the Senate itself, already in play, may be more so come next November. If it turns out that way, Republicans should have no scruples about playing by the same opportunistic rules the Democrats have seen fit to employ. As is said, it couldn’t happen to a nicer bunch.   

A Security Agreement with Afghanistan?

A loya jirga, an assembly of 3,000 or so Afghan leaders, is currently reviewing a draft bilateral security agreement that would allow U.S. and other foreign troops to remain in Afghanistan until 2024. Even if it passes with few substantive changes, the agreement is unlikely to please anyone.

Afghan President Hamid Karzai has said he will not sign it, and the few remaining hawks in the United States will point to some military leaders’ call for a much larger force to remain for a generation or more, and accuse President Obama of fecklessness. 

Most Americans, however, are likely to have the opposite reaction: a force of 8,000 is too large, and ten years is too long. A senior administration official’s assertion to the New York Times that “there is no scenario in which those forces would stay in Afghanistan until anywhere near 2024,” isn’t likely to be very reassuring. We’ve heard before that open-ended missions wouldn’t be, or that U.S. troops would eventually come home.  

The president’s supporters, including Secretary of State John Kerry, characterize the agreement as an acceptable compromise that ensures legal protections for Americans stationed in Afghanistan, while also granting the United States access for continued counterterrorism operations, including raids in Afghan homes, said to be one of the last sticking points of the negotiations.

The details must still be worked out, and it is possible that the loya jirga will alter the agreement, or vote it down. If the legal protections for American citizens are stripped out, or if there is no agreement, then the U.S. military mission should be withdrawn entirely from Afghanistan. As in the case in Iraq, when a democratically elected government refused the Obama administration’s reasonable request to shield U.S. troops from the vagaries of Iraqi justice, no deal should mean no troops. This story is far from over, and I will be watching as more details emerge. 

This much is clear, however: The enthusiasm for quixotic nation-building crusades that swept through Washington a few years ago has been replaced by a welcome skepticism. Senior military officers dressed it up with a fancy name–COIN–but the public never bought what they were selling. Now even some scholars within the military establishment are pushing back. A force of 100,000 wasn’t nearly large enough to accomplish a nation-building mission, and, the Obama administration no longer even pretends that that is the true object. A mere 8,000 foreign troops will have trouble enough training an Afghan army beset by illiteracy, absenteeism, and corruption. Any pretense that the few U.S. troops who remain in Afghanistan after 2014 can write Afghan legal codes, build a functioning political system, put the country on the road to economic self-sufficiency, and protect the rights of women and religious and ethnic minorities is out the window. 

But the critical constraint on any lingering nation-building fantasies is the American people who want this nation’s longest war to be over. They should be forgiven for believing that it would be by now, given that President Obama intoned repeatedly during last year’s campaign that he was committed to ending it.

He hasn’t yet.  

Major Sports Organizations Discuss Climate Change with Bicameral Task Force

Seriously?!?

Tomorrow [today] Rep. Henry A. Waxman and Sen. Sheldon Whitehouse, co-chairs of the Bicameral Task Force on Climate Change, will host representatives from five of America’s major sports leagues, as well as the U.S. Olympic Committee (USOC), to discuss the effects of climate change on sporting activities and the work these organizations are doing to reduce their greenhouse gas (GHG) emissions.  The group will meet for a closed-door discussion, followed by a press availability.

Now, admittedly, even as a climatologist, I do spend a fair amount of time discussing sports.

But I do so around the water cooler or at the local bar, not with Congressional task forces.

Your tax dollars are probably better served that way.