Topic: Government and Politics

When Liberty Knocked Down the Berlin Wall

It’s easy to be pessimistic about the future of liberty.  Yet sometimes freedom advances with extraordinary speed.  Like 25 years ago in Europe.

As 1989 dawned communism had ruled what was the Russian Empire reborn for seven decades.  The system failed to fulfill its promise of human liberation, but survived with the backing of secret police, gulags, and the Red Army.

Then in an instant it all was swept away.  On November 9, 1989, the Berlin Wall was open.  One of the most dramatic symbols of human tyranny was gone. 

Tens of thousands of East Germans were imprisoned for “Republikflucht,” or attempting to flee the East German paradise.  Some 1000 people died trying to escape East Germany, about 200 from Berlin.

As 1989 dawned there was obvious unrest in what Ronald Reagan had called the Evil Empire.  Hope was rising, but no one could forget that previous popular demands for freedom always had been crushed by Soviet tanks. 

In 1989 Hungary led the way.  Plans were made for multiparty elections.  The Communist Party dissolved.  When the new leadership tore down Hungary’s wall with the West the Iron Curtain had a huge hole.

Poland’s communist regime made a deal with a revived Solidarity Union and held free elections.  The liberal tide rose in Czechoslovakia, sweeping away the hardline leadership installed to squelch the Prague Spring of 1968.

The East German regime remained tough.  Frustrated East Germans began escaping through Hungary, with its open border. 

Protests spread, causing the communist leadership to temporize.  On November 4 a million people gathered in East Berlin. 

On November 9 visibly struggling Politburo member Guenter Schabowski declared that East Germans would be free to travel to the West “immediately.”  Border guards desperately sought guidance as tens of thousands of people gathered demanding to be let through. Just before midnight the security forces stood aside. 

Congress Should Tell President Barack Obama No to War against the Islamic State

President Barack Obama finally is obeying the law. He wants Congress to authorize military action against the Islamic State. 

Congress should respond as it was prepared to do when the president requested permission last year to bomb Syria: Capitol Hill should say no.

Candidate Barack Obama stated: “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.”  But three years ago, President Obama took America into war against Libya.  Three months ago, he initiated hostilities in Iraq against the Islamic State. Both without a congressional vote.

Most recently, administration officials claimed authority under the Authorization for Use of Military Force against al-Qaeda adopted in the aftermath of September 11.  But the Islamic State is not al-Qaeda and ISIL’s leaders did not help organize the attacks on the twin towers and the Pentagon. 

The president obviously changed his mind after his party was defeated in the off-year elections.  At least he now is following the Constitution. 

The Founders gave most military powers to Congress: raising and funding the military, writing the rules of war, issuing letters of marquee, and ratifying treaties. Moreover, Article I, Section 8 (11) states: “Congress shall have the power … to declare war.” 

The early Americans feared a president and war like today.  The Founders particularly opposed a system which subjected the nation’s peace to the whims of one man, accountable to no one.

Research Shows that Small Government Is Efficient Government

I’ve argued that we’ll get better government if we make it smaller.

And Mark Steyn humorously observed, “our government is more expensive than any government in history – and we have nothing to show for it.”

But can these assertions be quantified?

I had an email exchange last week with a gentleman from Texas who wanted to know if I had any research on the efficiency of government. He specifically wanted to know the “ratio of federal tax dollars collected to the actual delivery of the service.”

That was a challenge. If he simply wanted examples of government waste, I could have overloaded his inbox.

But he wanted an efficiency measure, which requires apples-to-apples comparisons to see which jurisdictions are delivering the most output (government services) compared to input (how much is spent on those services).

My one example was in the field of education, where I was ashamed to report that the United States spends more per student than any other nation, yet we get depressingly mediocre results (though that shouldn’t be a surprise for anyone who has looked at this jaw-dropping chart comparing spending and educational performance).

But his query motivated me to do some research and I found an excellent 2003 study from the European Central Bank. Authored by Antonio Afonso, Ludger Schuknecht, and Vito Tanzi, the study specifically examines the degree to which governments are providing value, and at what cost.

Will the Supreme Court Take Up Marriage Cases After All?

While the Supreme Court’s decision last month not to take up the same-sex marriage cases that had accumulate over the summer surprised some (but not all), that “decision not to decide” was easily explained by the absence of a conflict in the lower courts. All of the federal courts of appeal to have ruled had held traditional state definitions of marriage to be unconstitutional. As of this past Thursday, however, that’s no longer the case.

In case you’ve been overly focused on the last few days’ other big legal news, the Cincinnati-based U.S. Court of Appeals for the Sixth Circuit ruled 2-1 in favor of the state marriage laws of Michigan, Ohio, Kentucky, and Tennessee (cases in which Cato filed several briefs). Judge Jeffrey Sutton – whose previous turn in the national spotlight came when he voted to uphold Obamacare’ individual mandate before the Supreme Court got that case – wrote a magisterial opinion rejecting the challengers arguments regarding the Fourteenth Amendment. While I disagree with it for reasons spelled out in Cato’s various briefs, it’s seriously the best possible legal articulation of why states should remain free to restrict marriage licenses to opposite-sex couples. Sutton’s elegant and well-crafted opinion, though ultimately wrong, puts to shame many of the opinions that nevertheless correctly struck down state marriage laws – most notably Seventh Circuit Judge Richard Posner’s, which reads like a stream-of-consciousness college-sophomore sociology paper.

And this development wasn’t surprising. The conventional wisdom was that Sutton would be the swing vote on the panel and that he would invoke Baker v Nelson – the Supreme Court’s 1972 dismissal of a gay-marriage lawsuit “for want of a substantial federal question” – as binding lower courts’ hands notwithstanding Windsor v. United States and other legal developments. Ilya Somin makes an astute observation comparing Sutton’s approach to what he did in the Obamacare case:

Some of the flaws in Sutton’s analysis in the same-sex marriage case bear a surprising resemblance to those of his most famous previous opinion: his concurrence upholding the Obamacare individual health insurance mandate. In that case, he relied on an idiosyncratic interpretation of the distinction between facial and as-applied challenges that went against Supreme Court precedent, and was not adopted by any of the other judges who considered the issue on either the Supreme Court or the lower courts (including the many who voted to uphold the mandate on other grounds). Both opinions combine strong rhetorical statements about the humility required of lower court judges – especially when it comes to deferring to the Supreme Court – with neglect or significant misunderstanding of relevant Supreme Court precedent.

The practical question now is whether the cert-petition process will be completed quickly enough for the Court to consider these cases this term or whether it’s pushed to next fall (meaning a ruling as late as June 2016). Dale Carpenter and Josh Blackman sketch out the twists and turns we can expect, ultimately concluding that it’ll be very close, given that generally only cases the Court takes by early January make it onto the argument calendar for the same term. The challengers will be filing their cert petition(s) this very week, which makes an argument in late April still theoretically possible. 

My bet is that Chief Justice Roberts maneuvers behind the scenes in such a way that argument won’t be until next term begins in October but the ruling will come by Christmas 2015. Of course, if Justice Ginsburg retires or is otherwise unable to perform her duties at any point in this process, the case/ruling will be held up, thus setting up a presidential election in which same-sex marriage figures much more prominently than any we’ve had.

New Attorney General Pick a Savvy Move

President Obama has finally managed to strike the proper political tone on something. His nomination of federal prosecutor Loretta Lynch is unlikely to ruffle the feathers of the lame duck Congress and should let the Justice Department operate with less political opposition. Like George W. Bush’s appointment of Michael Mukasey to replace the embattled Alberto Gonzalez, Lynch is likely to be a low-profile steady hand to replace the radioactive Eric Holder.

At the same time, picking the first black woman AG allows the president to further his diversity agenda without spending tremendous political capital (which he doesn’t now have) – in a way that wouldn’t have been possible with Tom Perez, the controversial labor secretary who was also thought to be a contender for the job. All in all, while I’m sure I’ll disagree with some of Lynch’s enforcement decisions, this nomination means that legal analysts’ focus will largely remain on those policy issues rather than the controversial personalities and politics behind them.

Not These Guys Again! The Case for Term Limits

At NBCNews.com, I make the case for term limits in a video sidebar to Meet the Press.

For those who prefer print, I summarize my argument here (not all of which survived NBC’s editing):

Only 15 percent of Americans approve of Congress’s performance. Yet we’re about to have another election where more than 90 percent of incumbents are reelected. In fact, the most common reelection rate for House members over the past 30 years is 98 percent.

98 percent reelection—that’s what you expect to see in Russia, not in a democracy.

Americans don’t want a permanent ruling class of career politicians. But that’s what the power of incumbency and all the perks that incumbents give themselves are giving us.

We want a citizen legislature and a citizen Congress—a government of, by, and for the people.

To get that, we need term limits. We should limit members to three terms in the House and two terms in the Senate. Let more people serve. Let more people make the laws.

And let’s get some people who don’t want to make Congress a lifelong career.

Some say that term limits would deprive us of the skills of experienced lawmakers. Really? It’s the experienced legislators who gave us a $17 trillion national debt, and the endless war in Iraq, and a Veterans Affairs system that got no oversight, and massive government spying with no congressional oversight, and the Wall Street bailout.

Politicians go to Washington and they forget what it’s like to live under the laws they pass. As we’ve seen in some recent elections, they may not even keep a home in the district they represent.

The American Founders believed in rotation in office. They wanted lawmakers to live under the laws they passed—and wanted to draw the Congress from people who have been living under them.

For more on term limits, see the Cato Handbook for Congress, Ed Crane’s 1995 congressional testimony, or this very thoughtful article by Mark Petracca, “The Poison of Professional Politics.”

What Should Republicans Do?

Having taken both houses of Congress, Republicans are eager to make changes. Here are some guidelines they should follow: 1. Learn from history. At least since the Clinton administration, this country has suffered from a consistent pattern: First, one party takes the White House and Congress. Thrilled with the taste of power, they overreach, provoking a backlash. This allows the other party to soon take control of at least one house of Congress, leading to gridlock for the next several years. Republicans can avoid this scenario. Instead of immediately trying to pass legislation that will please certain of their constituents, Republicans should propose changes that will build strategic alliances with a wide range of groups. That may mean an incremental approach to change, but each increment should be designed to make the next increment more—not less—politically feasible. 2. Focus on fiscal issues. Part of the historic pattern is that Democrats win on social issues while Republicans win on fiscal issues. Whichever party is in power usually shoots itself in the foot by giving the other party ammunition on its winning issues. For example, Democrats’ obsession with government-run health insurance turned a social issue—poor people’s access to health care—into a fiscal issue. Republicans’ obsessions with abortion and gay rights give Democrats tools to bring them down. Since tax and fiscal issues are what Republicans win on, they should stick to those issues. That means no introducing bills to limit third-trimester abortions, no proposals for constitutional amendments to declare that marriage is between a man and a woman, and no efforts to open the Arctic National Wildlife Refuge (ANWR) to oil drilling. Any of those efforts would give fiscal liberals the openings they need to retake at least one house of Congress in 2018 (if not 2016), thus restoring gridlock. 3. Fix incentives, not outcomes. Nearly all of the problems with the federal government are due to poor incentives. It is incentives that determine what agencies do and whether they will be efficient doing it. In the long run, if the incentives are right, everything else will take care of itself (including a reduction in the size of government). Unfortunately, members of Congress almost never think about incentives when they pass legislation—or when they do, they think about them the wrong way, as in “How can I create an incentive to produce the outcome I want?” Instead of worrying about outcomes, Congress should create a level playing field, with a minimal amount of regulation and subsidies.