Topic: Law and Civil Liberties

Measuring “Success” in the War on Drugs in Mexico

The Economist had a story a few weeks ago on the recent developments of Mexico’s war on drugs. According to the magazine:

“At least 4,000 people have been murdered in violence involving traffickers so far this year. Officials say that is a sign that government pressure [on drug gangs] is having an effect.”

Their measurement of success is quite macabre; more people are dying in Mexico, including innocent bystanders who happen to be in the wrong place at the wrong time. This would be a tragedy in any other scenario, except for the twisted logic behind the war on drugs.

In related news, the head of Interpol in Mexico was arrested today for alleged collaboration with organized crime. I can’t wait to see how the drug warriors present this development as a “success.”

Let’s Read the Federalist — and Constitution — Right

Over at Jay P. Greene’s blog, Greg Forster takes issue with those who say that the Constitution does not permit federal excursions like No Child Left Behind. I address these concerns over at the New Talk discussion underway since yesterday, and encourage you to check that out. I offer only one, I think fairly conclusive, rebuttal to Forster here.

Greg calls on Federalist Papers nos. 47-51 to argue that federal intervention in state authority over education is presumptively okay because the principle behind checks and balances requires that each federal branch have some power over the others. He admits that these argument are not about federal authority over states, but invokes the Federalist nonetheless.

Unfortunately, Greg misses the clear point of both the Federalist and Constitution concerning federal-state relations. The federal government is given only specific, enumerated powers (see Article 1, Section 8) and all others are reserved to the states or people. It’s put that simply in the Tenth Amendment, and Madison was very clear in Federalist no. 41 that no reading of the Constitution, not even the vaunted “general welfare” clause, gives the federal government authority to be involved in anything outside of the specific, enumerated powers.

“For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power?” Madison asks. “Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars.”

There are arguments for why the federal government should be involved in education — though none that are convincing — but they won’t be found in the Federalist Papers.

Peekaboo, I See a Challenge to Sarbanes-Oxley in the Supreme Court

An intriguing case that alleges a high-profile violation of the president’s exclusive power to appoint and remove government officials is winding its way through the courts.  Free Enterprise Fund v. Public Company Accounting Oversight Board challenges the constitutionality of a key part of the Sarbanes-Oxley Act.

Congress passed Sarbox, as the law is called, in the wake of the Enron and WorldCom scandals to protect investors from shoddy accounting practices perceived as being rife in publicly traded companies.  (We now know that Sarbox’s regulatory burden costs the economy much more than the fraud it prevents and detects, but never mind.)  Among other things, the law created the Public Company Accounting Oversight Board – PCAOB, pronounced “peak-a-boo” – a private board exercising government power. Its members are appointed by the SEC, which has limited removal power.  In short, the president has neither any appointment nor removal power, in seeming violation of Article II, section 2 of the Constitution.

On Monday, the D.C. Circuit, now consisting of nine members after Judge Raymond Randolph took senior status as of November 1, split 5-4 in denying en banc review of a panel decision in the government’s favor.  Judges Janice Rogers Brown, Merrick B. Garland, Karen LeCraft Henderson, Judith W. Rogers, and David S. Tatel voted against rehearing while Chief Judge David B. Sentelle and Judges Douglas H. Ginsburg, Thomas B. Griffith and Brett M. Kavanaugh supported it.  Interestingly, the three Clinton appointees and one George H. W. Bush appointee voted in the majority, while both Reagan and two of the three George W. Bush appointees dissented.  The other George W. Bush appointee, Judge Brown, who is considered to be the most libertarian (she gave the B. Kenneth Simon Lecture at Cato’s 2007 Constitution Day conference) but also the most inscrutable, turned out to be the wild card.  (But she won’t be the swing vote for long because President Obama will have two vacancies to fill on the court.)

Lawyers for the Free Enterprise Fund, who include our friends at the Competitive Enterprise Institute, had earlier indicated that if they failed to get en banc review, they would seek certiorari in the Supreme Court. The narrow split in the D.C. Circuit probably enhances the chance that the justices would agree to hear the case, except that the Court this year has shown a reluctance to take on especially newsworthy (i.e., both controversial and significant) constitutional cases.

Cato Today

White Paper: “How Did we Get into This Financial Mess?,” by Lawrence H. White

The actual causes of our financial troubles were unusual monetary policy moves and novel federal regulatory interventions. These poorly chosen policies distorted interest rates and asset prices, diverted loanable funds into the wrong investments, and twisted normally robust financial institutions into unsustainable positions.

Op-Ed: “Eliminate U.S. Presence,” by Christopher A. Preble in USA Today

Iraq always was, and still is, a war of choice. The U.S. should choose to terminate the mission and refocus its attention — and, where appropriate, its still-strong military — on the enemies who struck on 9/11.

Op-Ed: “Don’t Dump on Free Trade,” by Ilya Shapiro in Legal Times

On Tuesday, Nov. 4, while most of the country understandably had its attention elsewhere, the Court heard argument in United States v. Eurodif. The case is an appeal from a ruling of the U.S. Court of Appeals for the Federal Circuit holding that contracts with foreign companies to enrich uranium are outside the scope of U.S. anti-dumping law (and their corresponding tariffs) because they’re “service” as opposed to “sales” contracts.

The decision reversed the Commerce Department’s determination to the contrary and prompted a petition for certiorari from United States Enrichment Corp., a government spinoff that dominates the domestic enrichment market and would be hurt by competition from abroad. Although the U.S. solicitor general also requested cert (in which circumstance review is not uncommon), Eurodif is the first time the Court has accepted an international trade case in six years (and only the eighth time in the last two decades).

Podcast: “Obama Should Scrap E-Verify,” featuring Jim Harper

Should We Fear Sea-Smurfs?

On October 1, active duty US Army troops for the first time began an assignment under control of Northern Command, the Combatant Command created in 2002 for homeland defense. This deployment, and particularly the revelation that the troops were training for law enforcement missions like crowd control, caused an outbreak of consternation on liberal and libertarian blogs. There is great uncertainty about why the Pentagon assigned active duty troops for homeland security and what purpose they serve. The main fear is that the mission will contravene Posse Comitatus, the 19th century law that restricts the use of the military domestically. The ACLU even filed a Freedom of Information Act request to compel the release of plans for the troops’ use. This post is an effort both to answer some of these questions and to raise others.

Here’s the bottom line: The trouble is less this particular assignment, which probably does not upend Posse Comitatus, than the gradual militarization of various governmental tasks in the United States. The creation of the Sea Smurfs is just the latest step in that process.

The troops are the 1st Brigade Combat Team of the 3rd Infantry division. In this year-long assignment they will be a CBRNE Consequence Management Response Force, or CCMRF (pronounced Sea-Smurf). CBRNE stands for chemical, biological, radiological, nuclear or high-yield explosive. The 1st BCT is the first of three CCMRF teams, who will comprise 15,000 soldiers in total. The other two will come from the Army National Guard. The Pentagon assigned these troops to Northern Command – probably over the objections of the Army, which likes to train its troops for war – because there was concern in Congress and elsewhere that Northcom could not ensure a proficient response to large scale disasters unless it controlled forces. For an example of this thinking, see this GAO report from April.

The assignment essentially amounts to extra training and equipment for responding to unconventional weapons attacks.  The training will occur at Fort Stewart in Georgia where the troops are based. It does not change rotation schedules to Iraq of Afghanistan.

Why is this not an obvious violation of Posse Comitatus? Because it is shot full of holes already. It is a statute, and other statutes create exceptions. Today, the military can provide equipment and expertise to police, fly fighter aircraft to protect airspace, respond to storms and do a host of other things in the United States. What Posse Comitatus now prevents the military from doing is law enforcement: arrests, crowd-control, detention, search and seizure activities, and so on. That does not apply to the National Guard when they are under state command.  And of course, there is an insurrection exception to Posse Comitatus. If the President declares an insurrection, troops can engage in law enforcement.

The 2006 Defense Authorization bill appeared to create new exceptions to Posse Comitatus. Those exceptions were undone, the status quo restored, via legislation passed by Senator Pat Leahy in early 2008. However, the administration’s theory of executive power says that they can use the troops as they see fit to deal with terrorism, whatever the law. There is probably a secret Office of Legal Counsel memo from 2001 that asserts that Posse Comitatus does not apply in the event of terrorist attacks. (That memo should be near the top of pyre when Obama takes office.)

Sea-smurfs can then do tasks short of law enforcement, including cleaning up after attacks. If terrorist attacks qualify as an insurrection, troops could perform law enforcement tasks in their aftermath. That might explain why the Sea-Smurfs received law enforcement training, but the Army denies that the training was related to domestic duties. It is good that the ACLU is trying to figure what exactly is intended.

Even if this mission is legal, however, it does not make it wise. Homeland defense activities like storms and terrorist attacks are the job of local and state authorities, and in extreme cases, the National Guard. Historically, these forces have been sufficient. Failures like Hurricane Katrina resulted more from poor decision making than the lack of capacity.

It’s true that a biological or nuclear attack is another can of worms.  (One reason to avoid man-power intensive occupational wars is that they prevent the National Guard from performing homeland missions.) It is also true that regular Army troops have more capacity. But the standard cannot be perfect preparation for all contingencies, especially when they are extremely low-probability events.

The real trouble with the Sea-Smurfs is the logic that justifies Northern Command: that Americans face a host of dangers at home that only military forces can protect them against. These dangers are grossly exaggerated, but even if they aren’t, someone beyond bloggers ought to be asking why it is the job of the military, let alone the federal government, to interdict drugs and refugees, clean up after storms, protect computers and hunt bad actors at home. Doesn’t this sap the military’s readiness for war? And doesn’t this militarization of government have some detrimental effect on liberal values?

‘After’ the Imperial Presidency?

Jonathan Mahler has a smart, informative feature on executive power in this week’s New York Times Magazine. I object only to the title, “After the Imperial Presidency.” As Mahler’s piece makes clear, the title could have used a question mark, at the very least.

Mahler writes:

Come January, the current administration will pass on to its successor a vast infrastructure for electronic surveillance, secret sites for detention and interrogation and a sheaf of legal opinions empowering the executive to do whatever he feels necessary to protect the country. The new administration will also be the beneficiary of Congress’s recent history of complacency, which amounts to a tacit acceptance of the Bush administration’s expansive views of executive authority. For that matter, thanks to the recent economic bailout, Bush’s successor will inherit control over much of the banking industry. “The next president will enter office as the most powerful president who has ever sat in the White House,” Jack Balkin, a constitutional law professor at Yale and an influential legal blogger, told me a few weeks ago.

Some prominent commentators — Jack Goldsmith and Jeffrey Rosen among them — have noted the “irony” that an administration monomaniacally committed to the growth of presidential power has allegedly weakened the presidency with its unilateralism and contempt of Congress. Given the powers the office retains and continues to accrue, that’s an irony that’s hard to savor. As Mahler notes, “it’s worth keeping in mind that in the final year of Bush’s presidency — while facing a Democratic Congress and historically low approval ratings — he was able to push through a federal bailout bill that vested almost complete control over the economy in the Treasury secretary (who reports to the president), not to mention a major rewriting of the 1978 Foreign Intelligence Surveillance Act that will make it easier for the White House to spy on American citizens.”

Indeed, Mahler documents how political realities— and in Obama’s case, perhaps, the prospect of actually taking power — led both candidates to move away from their early criticisms of Bush-style “deciderism,” and flip flop on torture (McCain) and wiretapping (McCain and Obama).

In explaining the post-9/11 growth of executive power, Mahler properly focuses on the twin problems of congressional cowardice and poisonous partisanship. In the Bush years, all too many congressional Republicans put party unity over institutional responsibility. That’s a common vice under unified government, which may be why Mahler hardly sounds optimistic when he quotes Senator Levin: “When I asked Levin what needs to happen for Congress to take back the rest of the ground that it ceded to the executive branch during the Bush years, he replied predictably, ‘We need a Democrat in the White House.’”

For further reasons to doubt that the Imperial Presidency is behind us, check here and here.

Whither Fusionism?

One of the victims of the Bush presidency, along with limited government and the Republican Party, has been “fusionism,” the idea that conservatives and libertarians ought to come together to oppose the forces of socialism (and The Left generally).  Indeed, this Tuesday’s election probably saw the highest-ever percentage of libertarians – depending on how you count them – vote for the Democratic presidential candidate (at least in the modern era, with the possible exception of the Nixon years).  This despite that Democratic candidate being commonly seen as the most statist major-party candidate in history.

Cato adjunct scholar Ilya Somin who blogs at the Volokh Conspiracy and in his day job is a law professor at George Mason (currently visiting at Penn) – Ilya being a popular name among libertarian legal community – today puts up a smart post on the state of the erstwhile libertarian-conservative.  Here’s a snippet:

Obviously, a lot depends on what conservatives decide to do. If they choose the pro-limited government position advocated by Representative Jeff Flake and some other younger House Republicans, there will be lots of room for cooperation with libertarians. I am happy to see that Flake has denounced “the ill-fitting and unworkable big-government conservatism that defined the Bush administration.” Conservatives could, however, adopt the combination of economic populism and social conservatism advocated by Mike Huckabee and others. It is even possible that the latter path will be more politically advantageous, at least in the short term. 

Indeed, if conservatives choose some version of the Huckabee-Palin route, fusionism is dead – and so, might I add presumptuously, is the Republican Party.  That just ain’t where the majority of the nation is, or where it’s heading (though, as Ilya says, that direction may be politically advantageous in certain parts of the country under certain circumstances).

But this type of discussion may be beside the point; libertarian-conservative (in the sense of socially conservative, economically squishy) fusionism may have run its course, a relic of the Cold War.  The new fusionism may well be fiscally conservative and socially tolerant (not necessarily liberal, just not wanting government to do anything about the way people live their private lives), including folks who might call themselves conservative cosmopolitans, crunchy cons, South Park conservatives, or indeed libertarians.  Or they might eschew labels altogether but are sick of the rot coming from (or to) Washington.  In other words: Purple America,