Topic: Law and Civil Liberties

NSA: Keeping One’s Eye on the Constitutional Ball

Followers of Cato’s Constitutional Studies department know that my colleague Bob Levy and I have a respectful disagreement over the constitutionality of recently revealed NSA surveillance practices. Consider this the latest installment in that discussion….

In an earlier Cato@Liberty post, Bob finds it “ominous” that the NSA might be “monitoring the content of wholly domestic calls.” But he adds, “When communications from and to a US person in the US are monitored, that’s domestic surveillance, no matter whether the party on the other end is inside or outside of the US (original emphasis).”

I have to disagree. Perhaps Bob thinks that the monitoring of international calls, as we would normally call them (one party outside the United States), is also ominous, because he next says, “Since Bush believes that warrantless domestic surveillance is permissible regardless of FISA’s contrary provisions, we shouldn’t be surprised if the NSA has much more data (including content) than USA Today has uncovered.”

This focus on domestic/nondomestic, pressed by the Bush critics, comes from the language of FISA—and points to yet another problem with the statute. After all, the calls we want most to monitor are those that go to and come from al-Qaeda sleeper-cells in the United States. Insofar as FISA burdens that “domestic” surveillance, it frustrates the very purpose of surveillance.
In Nov. 2002, the FISA Court of Review cut through that distinction when it spoke of the president’s “inherent authority to conduct warrantless searches [leaving it open whether inside or outside the United States] to obtain foreign intelligence information,” adding that the “appropriate distinction” to be drawn in balancing the government’s interest against individual privacy interests is between “ordinary crimes and foreign intelligence crimes.” Unlike with the former, where punishment and deterrence are the main purposes, the government’s concern with foreign intelligence crimes, the court said, “is overwhelmingly to stop or frustrate the immediate criminal activity.” It can hardly do that effectively if it has to run to court for a warrant at every turn—nor did the court hold that it had to since that issue was not before the court.
The deeper issue with FISA, however, is the constitutional separation-of-powers question: whether Congress has the authority to restrict an inherent power of the president. How can Congress, by mere statute, restrict an inherent power of a co-equal branch of government that has been exercised, with no objection, by every president since George Washington? Congress, by mere statute, can no more restrict the inherent power of a president—or a court, or a state, for that matter—than it can restrict the constitutional rights of an individual. If a line is to be drawn between the power of the president and the rights of the people, it is for the courts to do it. And if the courts will not or cannot do so (because of standing or other such problems), then the matter is ultimately political, not legal.

Scotland Ups the Nanny Ante

By my measure, the United States trails the United Kingdom by about three to five years when it comes to aggressively paternalistic public policy. Get ready for this one:

First the Scottish Executive wanted people followed home if they breached the smoking ban.

Now there are fears its health crusade could spell the end of traditional pie and chips in Scots pubs.

In two years time, bar and pub owners will be asked to provide ‘sensible eating’ policies as a condition of their licences.


Glasgow MSP Bill Aitken complained: “Scotland will soon be a place where what’s not compulsory is forbidden.

“The Executive should butt out of people’s lives. It’s still—only just—a matter for individuals what they choose to eat.”

And Paul Waterson, head of the Scottish Licensed Trade Association, said: “There’s potential for extreme interference and major problems.”

I’ll say. 

Such ideas aren’t unprecedented here in the United States, of course. A few months ago, a physician wrote an op-ed in the Chicago Tribune calling on the Surgeon General to set national portion size standards for restaurants—and to enforce them.

A Heckuva Job

Yesterday, President Bush said “the privacy of ordinary Americans is fiercely protected in all our activities.” Why didn’t he just say, “I think federal agencies are doing a heckuva job protecting the privacy of ordinary Americans”? An argument can be made that terrorists pose a unique threat, etc., but stop it already on how fierce the state is protecting our privacy.

Judicial Independence as Key Ingredient of Freedom

I’m in Beirut, where I’ve been meeting with Arabic newspaper and book publishers for Cato’s Arabic publishing venture and where I led a seminar today at the American University of Beirut.

One hot topic of discussion here has been the ongoing protests in Egypt over the independence of the judiciary. Democracy is often identified only with elections, but a lasting democracy has to involve a lot more than the ballot box. A liberal democracy isn’t just about free elections, but about the constitutional context – securing the rights of the people to freedom under law, rather than subjugation to arbitrary power – within which free elections serve an important but limited role.

As the Egyptian demonstrators have realized, free elections are not possible without an independent judiciary to ensure that the law is followed. That very same independent judiciary, in turn, is a central feature of the predictability of law that is necessary for a social order to flourish. Mancur Olson pointed out in 1993 in the American Political Science Review that ”the same court system, independent judiciary, and respect for law and individual rights that are needed for a lasting democracy are also required for security of property and contract rights.”

Let’s hope that as the Egyptians struggle for an independent judiciary that can monitor and check the executive power, we in the U.S. manage to keep our judiciary from submitting to domination by an executive branch that is hell-bent on sacrificing the separation of powers in pursuit of its claims of unlimited power. As James Madison noted in Federalist 78, the independence of the judiciary should be regarded as “the citadel of the public justice and the public security.”

With Enzi Bill, GOP Abandons Federalism, Free Trade

The U.S. Senate steps through the looking glass this week, with a debate on a health care bill that would shift power from the states to the federal government. Republicans, who typically argue against such things, support the bill. Democrats, who never miss a chance to expand federal power, oppose it.

The bill, sponsored by Sen. Mike Enzi (R-WY), deals with health insurance regulation. That has traditionally been the province of the states, with one large exception: In 1974, the feds allowed large employers to avoid state regulation by opting for federal regulation.  That gave multi-state employers the benefit of only having to contend with one set of health insurance regulations (rather than 50). Federal regulation has also traditionally been less burdensome than state regulation.

In fact, the states have been regulating health insurance like mad. Many states require consumers to purchase unwanted or even offensive coverage. (Thirty states require Catholics to purchase coverage for contraception; 14 states require them to purchase in-vitro fertilization coverage.) States have passed some 1,800 of these “mandated benefit” laws. The states also regulate insurance prices, which actually increases the number of uninsured.

States get away with over-regulation because they prohibit consumers and employers from buying health insurance from out-of-state. If you lived in some regulatory hell-hole – let’s say, New Jersey – you could obtain much cheaper coverage by dealing with a carrier regulated by another state.

If Bruce Springsteen can purchase voice insurance from Lloyd’s of London, surely his neighbors should be able to buy health insurance from Pennsylvania.

Enter Sen. Enzi, who has an odd solution to this mess: Let trade associations offer health insurance to their members, and let the feds decide what state regulations they follow.  The bill seems to be deregulatory; it would allow “association health plans” to avoid some unnecessary regulatory costs. But it would be the feds – rather than employers or consumers – who choose the set of rules that govern one’s health coverage. Thus the bill would shift power from the states to the feds.

Democrats oppose the bill, though it’s hard to fathom why. The bill would make broad-based federal health insurance regulation – a long-time Democratic goal – much easier to achieve. In short order, that would erase any short-term savings the Enzi bill might deliver.

Sometimes, I suspect the Democrats’ opposition is a ruse: They keep opposing the idea because if they supported it, Republicans might come to their senses.

The real tragedy is that Republicans have at their fingertips legislation that would give individuals consumers and employers the right to purchase coverage from out-of-state.  Sen. Jim DeMint (R-SC) and Rep. John Shadegg (R-AZ) have a bill that would tear down those barriers to trade between states, as Congress was meant to do under the Commerce Clause

But the Shadegg-DeMint bill doesn’t have a powerful coalition of trade associations lobbying for its passage. Trade associations like the Enzi bill because it would allow them to offer health insurance as a benefit to their members. The Shadegg-DeMint bill would do the same thing. But somewhere along the way it was determined that federal regulation would be more politically feasible than free trade between the states.

I guess it’s easier to convince Republicans to increase their own power than to return power to individuals.

Kerr on the NSA Database

Over at the Volokh Conspiracy, Orin Kerr has an informative first cut at the legal issues surrounding the NSA’s newly revealed phone-call-record database. Bottom line: Whether you think the program is unlawful is likely going to depend on whether you think Article II allows the president to bypass statutes that infringe on tactics he wants to pursue in the war on terror.

McCain-Feingold Bites

So a court confirms that, under the McCain-Feingold law, it’s illegal to run ads urging a senator to vote for a bill in Congress if the bill is coming to the floor within 30 days of a primary election in which the senator is running unopposed. Because letting a grassroots group contact voters on a proposed constitutional amendment would compromise “the integrity of the electoral process.”

John McCain often takes the lead on economic freedom, and Russell Feingold was the only senator to vote against the PATRIOT Act, but they should both be sorely ashamed that they have so effectively blocked the voters from the sacred “electoral process.”