Tag: Constitution

Egypt’s Shambolic Constitutional Process

Don’t let yourself be fooled by the overwhelming approval of the new Egyptian constitution in the referendum held earlier this week. While, according to preliminary results, the vast majority of roughly 37 percent of Egyptians who showed up at the polls backed the proposal, very little about the document itself or about the process through which it has come about is consistent with the idea of liberal democracy and limited government. Yesterday’s Bloomberg View editorial summarizes all one needs to know about the new constitution:

The armed forces would for at least the next eight years be independent of civilian control, including over their budget, as they were under former President Hosni Mubarak, himself an air force commander. Military courts would remain autonomous and would have jurisdiction over civilians in many instances. The hated police would also get greater independence, while the Supreme Court would be able to decide its size and membership for itself.

Neither should there be any illusions about the events leading to the adoption of the document. The referendum followed months of a deliberate crackdown on the opposition and disbanding of the largest political force in the country – not to speak of the arrests of activists of the ‘no’ campaign.

In short, Egypt seems to be coming full circle to where it was before the events of the Arab Spring, particularly if General Abdel Fattah el-Sisi announces his candidature for the country’s highest office. The question is how long the Egyptians are willing to put up with it.

As a side note, the constitutional process in Tunisia looks much more encouraging, although as Emmanuel Martin and I argue here, the new constitution is unlikely to be a an impetus for the badly needed economic reforms.

How Would I Amend the Constitution? End All Extra-Legal Amendments Thereto

The Fiscal Times recently asked me and a number of others, “How would you amend the Constitution?“ Here’s how the Times categorized my response:

DON’T CHANGE A THING

Several major conservative thinkers suggested that the Constitution does not need to be changed, but rather to have its principle of limited government guide both Congress and the president.

Michael Cannon at the Cato Institute noted that the Fourth Amendment protects against warrantless searches, “yet the National Security Agency tracks everybody with Congress’ tacit if not explicit consent.”

First of all, and I fear I will be explaining this to reporters for the rest of my life, I am not a conservative. I support gay marriage, cutting military spending, closing all U.S. bases in foreign nations, and ending the prohibitions on drugs, gambling, and prostitution. Of such stuff conservatives are not made.

Second, the above excerpt scarcely captures my response to the Times’ inquiry. Don’t change a thing?? Here is my response in full:

There are constitutional amendments I want to see. And yet.

Americans don’t need to amend the Constitution so much as they need politicians to honor what the Constitution already says. The Constitution creates a government of enumerated and therefore limited powers; Congress and the president routinely exceed those powers. The First Amendment protects freedom of speech, particularly political speech; Congress heavily regulates and rations political speech. The Fourth Amendment protects “persons, houses, papers, and effects” from “unreasonable searches” and requires “no warrants shall issue, but upon probable cause”; yet the NSA tracks everybody with Congress’ tacit if not explicit consent. The states could ratify an amendment that says, “Hey, we mean it!”; but the Constitution already contains two amendments saying that (the Ninth and Tenth). What is the point of amending the Constitution if Congress will just ignore that amendment too?

This could soon become a Very Big Problem. If Congress keeps acting like it is not bound by the Constitution, then eventually the people will conclude that they aren’t either.

That is, I don’t want to amend the Constitution so much as I want to stop politicians and bureaucrats from amending it unlawfully – i.e., without going through the Article V amendment process  – and stop the courts from rubber-stamping those extra-legal amendments. 

It would be great if, as the Times writes, the Constitution’s principle of limited government were to guide both Congress and the president. I would settle for having the plain words of the Constitution constrain Congress and the president. That constraint will have to come from the people, and federal judges.

Never Mind the IRS, You’d Better Be Nice to Kathleen Sebelius

ObamaCare’s Independent Payment Advisory Board is everything its critics say and worse. It is a democracy-skirting, Congress-blocking, powers-unseparating, law-entrenching, tax-hiking, fund-appropriating, price-controlling, health-care-rationing, death-paneling, technocrat-thrilling, authoritarian, anti-constitutional super-legislature. Its very existence is testament to government incompetence. It stands as a milestone on the road to serfdom.

The Congressional Research Service has now confirmed what HHS Secretary Kathleen Sebelius pretends not to know but what Diane Cohen and I explained here

[I]f President Obama fails to appoint any IPAB members, all these powers fall to Secretary of Health and Human Services Kathleen Sebelius.

That’s an awful lot of power to give any one person, particularly someone who has shown as much willingness to abuse her power as Sebelius has. 

I would also like the Congressional Research Service to address a feature of IPAB that Cohen and I first exposed. According to the statute, we write: 

Congress may only stop IPAB from issuing self-executing legislative proposals if three-fifths of all sworn members of Congress pass a joint resolution to dissolve IPAB during a short window in 2017. Even then, IPAB’s enabling statute dictates the terms of its own repeal, and it continues to grant IPAB the power to legislate for six months after Congress repeals it. If Congress fails to repeal IPAB through this process, then Congress can never again alter or reject IPAB’s proposals.

You read that right. For more, read our paper, especially Box 3 on page 9.

CRS, I’m interested to know what you think. Take a close look at the law and get back to me.

Jon Stewart on the IRS Targeting the Tea Party

Last night, the Daily Show’s Jon Stewart said of reports the IRS singled out tea-party groups for extra scrutiny, “This seems like a genuine scandal.” Then he turned on the funny: “In their defense, there is a good reason why people using the IRS to crack down on political enemies would not want Americans educated about the Constitution.” Best line: “Wait a minute. I didn’t realize apologies were sufficient in IRS-related issues.” Video below. (Beware: some racy language.)

The Daily Show with Jon Stewart Mon - Thurs 11p / 10c
Barack Trek: Into Darkness
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Daily Show Full Episodes Indecision Political Humor The Daily Show on Facebook

In the very next segment, Stewart portrays HHS’s release of (wildly divergent) hospital chargemaster prices as an example of government doing things right, gives kudos to HHS, and laments that government doesn’t do more of that sort of thing. There’s only one problem. Outrageously high and divergent hospital prices are due to government policies that encourage patients to pay for more items through health insurance and that thereby destroy the cash market and any hope of competitive and transparent prices. So that episode is also an example of government failure. 

The show’s Moment of Zen was this priceless clip of former IRS commissioner Douglas Shulman denying that his agency was on a tea-party witch hunt:

The Daily Show with Jon Stewart Mon - Thurs 11p / 10c
Moment of Zen - The Nonpartisan IRS
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Daily Show Full Episodes Indecision Political Humor The Daily Show on Facebook

IRS Lied to Congress about Targeting Tea Party

On Friday, the IRS admitted that when “social welfare” groups with the terms “tea party” or “patriot” in their names applied for 501(c)(4)/tax-exempt status, IRS agents targeted them for extra (and extra-legal) scrutiny to ensure they were not engaged in politicking. The Washington Post reports, “about 75 groups were selected for extra inquiry — including, in some cases, improper requests for the names of donors.” IRS agents did not apply similar scrutiny to groups with “progressive” in their names.

Over the weekend, more details emerged. It now appears the IRS lied to Congress about this practice for more than a year. It also appears the IRS is still targeting tea-party groups today, in part because IRS bureaucrats believe groups that “educat[e] on the Constitution and Bill of Rights” deserve greater scrutiny.

Here’s a rundown. 

Senior IRS officials have known about these abuses for nearly two years. The Associated Press reports: “Senior Internal Revenue Service officials knew agents were targeting tea party groups as early as 2011…on June 29, 2011, Lois G. Lerner, who heads the IRS division that oversees tax-exempt organizations, learned at a meeting that groups were being targeted, according to the watchdog’s report. At the meeting, she was told that groups with ‘Tea Party,’ ‘Patriot’ or ‘9/12 Project’ in their names were being flagged for additional and often burdensome scrutiny…Lerner instructed agents to change the criteria for flagging groups ‘immediately’…”. IRS agents also gave extra scrutiny to groups that “criticize how the country is being run.”

The IRS tried to get away with it again. The Washington Post reports:

the agency revised its criteria a week later.

But six months later, the IRS applied a new political test to groups that applied for tax-exempt status as “social welfare” groups, the document says. On Jan. 15, 2012 the agency decided to target “political action type organizations involved in limiting/expanding Government, educating on the Constitution and Bill of Rights, social economic reform movement”…

The agency did not appear to adopt a more neutral test for social welfare groups…until May 17, 2012…

Of course, these revised criteria are not politically neutral either. Tea-party groups are still far more likely to receive extra scrutiny than progressive groups. Lots of right-leaning political groups describe their mission as working to limit government or educate people about the Constitution. Far fewer left-leaning groups emphasize educating people about the Constitution or openly declare their mission is to expand government. And note: the U.S. government treated groups as suspect if they educate the public about the Constitution and Bill of Rights. Let that one sink in.

The IRS lied to Congress for more than a year. The Associated Press reports: “At a congressional hearing March 22, 2012, [then-IRS commissioner Douglas] Shulman was adamant in his denials. ‘There’s absolutely no targeting.’” Senior IRS staff knew that claim was false nine months before Shulman made it. Yet they let Shulman’s false statement to Congress go uncorrected, amid a congressional investigation into whether the IRS was targeting tea-party groups, for another 14 months. According to the Washington Post, “The IRS made no mention of targeting conservative groups in five separate responses to congressional inquiries between Nov. 18, 2011, and June 15, 2012, according to the [inspector general’s] timeline.” Even if we view the facts in the light most favorable to the IRS and assume Shulman did not know he was uttering a falsehood – which, by the way, would mean he is a very poor manager – the IRS’s failure to correct that falsehood pretty much makes it a lie. I don’t mean that in the phony way PolitiFact uses the term. I mean a real lie.

The IRS did not come forward of its own accord. The Associated Press: “The Treasury Department’s inspector general for tax administration is expected to release the results of a nearly yearlong investigation in the coming week.” House Oversight Committee chairman Darrell Issa (R-CA) put it, “Before the IG’s report comes to the public or to Congress as required by law, it’s leaked by the IRS to try to spin the output. This mea culpa’s not an honest one.”

IRS officials maintain the targeting of tea-party groups was the work of low-level employees and not politically motivated. Yet the agency has shown a willingness to deceive Congress and the public about its own misconduct. Congress should conduct a thorough investigation.

Even if it is true that low-level IRS bureaucrats were acting on their own, Congress’ investigation should examine the role Obama administration officials played in encouraging those bureaucrats to single out the tea party. As New York Times columnist Ross Douthat explains:

Where might an enterprising, public-spirited I.R.S. agent get the idea that a Tea Party group deserved more scrutiny from the government than the typical band of activists seeking tax-exempt status? Oh, I don’t know: why, maybe from all the prominent voices who spent the first two years of the Obama era worrying that the Tea Party wasn’t just a typically messy expression of citizen activism, but something much darker — an expression of crypto-fascist, crypto-racist rage, part Timothy McVeigh and part Bull Connor, potentially carrying a wave of terrorist violence in its wings.

It would be very bad if senior Obama administration officials ordered the IRS to intimidate the president’s political opponents. It would scarcely be better if administration officials denounced their opponents until IRS bureaucrats took the hint.

People should lose their jobs over this.

Cato Challenges the Supreme Court to Decide that Congress Doesn’t Have Unlimited Jurisdiction Over Everyone

Last year’s partial victory in the Obamacare case is already being applied to new cases reaching the Supreme Court. Recall that, in that case, the Court accepted our argument that the government cannot use the Commerce and Necessary and Proper Clauses to compel someone to purchase health insurance. The Court held that allowing Congress to compel commerce into existence would be an improper use of a great and limitless power. In United States v. Kebodeaux, the Supreme Court will once again address an assertion of power that, if upheld, could give Congress nearly limitless power.

In 1999, Anthony Kebodeaux was sentenced to three years in prison for statutory rape. He served his time, was freed from any post-release parole or probation requirements, and ended his relationship with the federal government in the matter of criminal law. Years later, when Kebodeaux moved intrastate from San Antonio, Texas to El Paso, Texas, he failed to update his change of address within the three-day period as required by the federal Sex Offender Registration and Notification Act (SORNA) of 2006. Even though Kebodeaux was unconditionally released from custody before SORNA was enacted, he was sentenced to one year in federal prison. The Fifth Circuit overturned his conviction en banc, meaning that every judge on the Fifth Circuit heard the case rather than the traditional three-judge panel. They found the registration requirement unconstitutional because Congress lacked jurisdiction over Kebodeaux after they unconditionally released him from custody.

The government’s arguments to the contrary, the court held, would permit not just “unending criminal authority” over Kebodeaux but unending authority over every American who was once in federal jurisdiction, which is, of course, every American.

In a sense, the government is now arguing for the “Hotel California” theory of jurisdiction: you can check out, but you can never leave. 

Yesterday, Cato filed an amicus brief, joined by Ilya Somin, Professor of Law at George Mason University School of Law, arguing that it would be improper under the Necessary and Proper Clause to permit Congress to have unending authority over all Americans. Congress already lacks a general power to punish criminals, much less monitor previously released criminals and impose new and onerous restrictions on them at will. Moreover, there is nothing constitutionally special about sex offenders as a class. Congress should not be allowed to designate a sub-class of people within its jurisdiction as “special” and then assert perpetual jurisdiction over them. These type of assertions of power are precisely what the “proper” element of the Necessary and Proper Clause is supposed to protect against–ones that, even if “necessary,” would give Congress unbounded power. 

Indeed, if the Court rules in favor of the government’s position, it will give Congress virtually unlimited power to regulate nearly all Americans. In essence, it would justify the gradual imposition of endless new requirements on anyone who had previously been subject to federal jurisdiction. Cumulatively, these federal impositions amount to unlimited federal authority over anyone who has ever been held in federal custody or otherwise in federal jurisdiction. This cannot be a power vested in a Congress with “few and defined” powers. As the Supreme Court held in the Obamacare case, Congress doesn’t have the power to “regulate an individual from cradle to grave.”  

Ted Olson on John Roberts’ Saving Construction of ObamaCare

At a recent legal conference, former Solicitor General (and Cato Institute board member) Ted Olson offered this slightly nerdy take on Chief Justice John Roberts’ saving construction of ObamaCare’s individual mandate:

Roberts’ support for the individual mandate brings to mind the Higgs boson — it can’t be seen, it disappears upon occurrence, and it’s the God particle that controls everything in the universe.

Hat tip: Louise Bennetts.