After the AUMF

By
Christopher A. Preble

Georgetown University’s Jennifer Daskal, and Stephen Vladeck, an associate dean in the College of Law at American University, have posted a working paper (.pdf) regarding the 12+ year old Authorization for Use of Military Force (AUMF) at the Lawfare blog that is receiving, and deserves, some attention. The shorter version in today’s New York Times is receiving even more attention, presumably.

“After the AUMF” is written, in part, as a response to a Hoover Institution proposal (.pdf) that would replace the existing AUMF with, as Daskal and Vladeck describe it, “a new blanket framework statute authorizing the use of military force against as-yet-undetermined future terrorist organizations, and to delegate to the Executive Branch the authority to delegate those organizations against which such force may be used if and when the time comes.”

The crux of the Daskal-Vladeck critique rests on their claim that such a framework is unnecessary, and, worse, counterproductive. They explain that we should be trying to end, rather than extend, the war on terror, and that existing authorities (including many that have expanded since 9/11) are more than sufficient to protect the country against terrorist attacks. Should those authorities prove insufficient in the future (for example, if an as-yet-unknown terrorist organization materializes and plots attacks against the United States), Congress would retain the ability to pass a new AUMF–and would likely do so quite quickly, if past history is any guide. Lastly, they claim that the war frame, in general, undermines the nation’s counterterrorism goals by engendering hostility and resistance across a broad spectrum, from innocent civilians to heads of nation states, who resist being drawn into a never-ending war.

Although I am broadly sympathetic with the idea that we should move away from thinking of counterterrorism as a war, thus demanding a military response (about which I have written book chapters here and here), I believe that the most important of the Daskal-Vladeck objections revolves around the Hoover proposal’s apparent disdain for Congress, and its willingness to grant more power to the Executive Branch. The Hoover proposal claims that this would be an improvement over the current system, because it would give “the president the flexibility he needs to address emerging threats” and would “render more transparent and regularized the now very murky process by which organizations and their members are deemed to fall within the September 2001 AUMF.”

Elsewhere the Hoover paper claims that such a blanket predelegation of authority is required because “Congress probably cannot or will not, on a continuing basis, authorize force quickly or robustly enough to meet the threat.”

Daskal and Vladeck disagree. They counter that “no examples exist of cases where Congress either could not or would not provide the necessary authority–or why, in the interim, the President’s Article II authorities, criminal law, and other existing counterterrorism authorities weren’t sufficient to meet the threat.” On the contrary, the Congress has consistently demonstrated the ability and willingness to authorize wars quite quickly (too quickly, some might say), including within three days of the 9/11 attacks, and within five days of the supposed attack in the Gulf of Tonkin in August 1964. Thus, Daskal and Vladeck conclude, if a new terrorist group “were to emerge, nothing would or should stop Congress from providing a new, narrow and specific authorization to use force.”

They continue, with emphasis:

Proposals to delegate such future—and momentous—decisions to the President lack any historical precedent, and for good reason. It is Congress, not the Executive, that is given the authority under our Constitution to declare war. An authorization to use military force…should not be an ex ante delegation to the President to make unreviewable decisions to go to war at some future date. This is something our Founding Fathers understood well. Thus, proposals to delegate such a determination to the President threaten the carefully calibrated balance of powers enmeshed within the Constitution, essentially asking Congress to surrender one of its most important functions to the Executive.

This is an important and interesting discussion, and one that should not reduce to the predictable partisanship in Washington today. Some liberal Democrats agree with conservative Republicans that the president should be given more powers; other liberals and conservatives are joined in opposition to such suggestions. This timely–indeed, overdue–assessment of the powers that exist, and will be needed in the future, to deal with terrorist threats should and will be getting more attention in the weeks and months ahead.

 

Topics: 
Foreign Policy and National Security, Law and Civil Liberties

Low Climate Sensitivity Making its Way into the Mainstream Press

By
Paul C. "Chip" Knappenberger and Patrick J. Michaels

When it comes to the press, the New York Times pretty much defines “mainstream.”

And Justin Gillis is the Times’ mainstream reporter on the global warming beat.

So it is somewhat telling, that his article on Tuesday, “A Change in Temperature,” was largely dedicated (although begrudgingly) to facing up to the possibility that mainstream estimates (i.e., those produced by the U.N.’s Intergovernmental Panel on Climate Change) of climate sensitivity are too large.

Readers of this blog are probably well aware of the reasons why.

Despite our illusions of grandeur, this blog isn’t the mainstream press –although we do seek to influence it. Maybe we are being successful.

Throughout Gillis’ article are sprinkled references to “climate contrarians,” and even the recognition of the effort by such contrarians to push the new science on low climate sensitivity to the forefront of the discussion to change the existing politics of climate change.

Gillis writes:

Still, the recent body of evidence — and the political use that climate contrarians are making of it to claim that everything is fine — sheds some light on where we are in our scientific and public understanding of the risks of climate change.

We at the Cato’s Center for the Study of Science are at the leading edge of efforts to present a more accurate representation of the scientific of climate change through our testimony to Congress, public comments and review of government documents and proposals, media appearances, op-eds, and serial posts on this blog, among other projects. We emphasize that current regulations and proposed legislation are based on outdated, and likely wrong, projections of future climate impacts from human carbon dioxide emissions from the use of fossil fuels to produce energy.

Gillis recognizes the positives of a low climate sensitivity value:

“…tantalizing possibility that climate change might be slow and limited enough that human society could adapt to it without major trauma.”

“It will certainly be good news if these recent papers stand up to critical scrutiny, something that will take at least a year or two to figure out.”

“So if the recent science stands up to critical examination, it could indeed turn into a ray of hope…”

But, the “mainstream” is slow to change. And so despite the good news about climate sensitivity, Gillis closes his article by pointing out that, in his opinion, the political response to climate change has been “weak” (contrary to our view), and that therefore:

Even if climate sensitivity turns out to be on the low end of the range, total emissions may wind up being so excessive as to drive the earth toward dangerous temperature increases.

Clearly we still have work to do, but there are signs of progress!

Topics: 
Energy and Environment

No Time for Mercantilist Posturing in Transatlantic Trade Talks

By
Daniel J. Ikenson

Pitched as a cure for Europe’s woes, salvation for the multilateral trading system, and the last best chance to restrain the Chinese juggernaut, the stakes are high for the upcoming Transatlantic Trade and Investment Partnership (TTIP) negotiations. Of course the primary objective of the TTIP is to reduce nagging impediments to commerce between the United States and the European Union. But success is far from a sure bet.

Given the numerous bilateral trade frictions that have eluded resolution for many years, the goal of a “comprehensive” agreement by the end of 2014 – the current target – is simply not credible. Success would require negotiators to lay down their calculators and spreadsheets, disavow the “exports good, imports bad” mantra of mercantilist doctrine on which they were raised, and act on behalf of their citizens instead of their domestic producer lobbies.

That outcome would be too good to be true, but there may be a certain genius to the tight timeframe: it will demand that negotiators forego excessive posturing and will limit the potential for ever-shifting political calculations to subvert progress. Regardless, success can only take the form of a less comprehensive agreement or, perhaps, a two-phased agreement where the first phase meets the 2014 deadline by achieving accord on relatively agreeable matters, while the tougher issues are relegated to a later train.

A recent paper co-published by the Atlantic Council and the Bertelsmann Foundation presented the results of a survey of American and European trade policy experts about the prospects for a successful TTIP agreement. More than half thought the negotiations would produce a “moderate agreement,” and most thought the agreement would take effect by the end of 2015 or 2016.

Read the rest of this post »

Topics: 
Trade and Immigration

Scandals Keep Eroding Our Faith in Benevolent Government

By
David Boaz

George Will, Michael Gerson, and our own Gene Healy are among the columnists who reminded us – in the wake of the IRS and AP snooping scandals – of President Obama’s stirring words just two days before the IRS story broke:

Unfortunately, you’ve grown up hearing voices that incessantly warn of government as nothing more than some separate, sinister entity. . . . They’ll warn that tyranny is always lurking just around the corner. You should reject these voices.

No road to serfdom here. Just us folks working together, to protect ourselves from sneaky reporters and organized taxpayers.

And now lots of people are noting that a series of scandals in government just might undermine people’s faith in government. John Dickerson of Slate writes:

The Obama administration is doing a far better job making the case for conservatism than Mitt Romney, Mitch McConnell, or John Boehner ever did. Showing is always better than telling, and when the government overreaches in so many ways it gives support to the conservative argument about the inherently rapacious nature of government….

Conservatives argue that the more government you have, the more opportunities you will have for it to grow out of control.

And Paul Begala, the Bill Clinton operative, notes:

This hurts the Obama Administration more than similar issues hurt the Bush administration because a central underpinning of the progressive philosophy is a belief in the efficacy of government. In the main almost all of the Obama agenda requires expanding folks’ faith in government, and these issues erode that faith.

“Faith in government” indeed. To paraphrase Oscar Wilde, putting your faith in government is, like a second marriage, a triumph of hope over experience.

But most particularly this week I’m reminded of Murray Rothbard’s comment in 1975 about what the era of Vietnam, Watergate, and stagflation had done to trust in government:

Twenty years ago, the historian Cecelia Kenyon, writing of the Anti-Federalist opponents of the adoption of the U.S. Constitution, chided them for being “men of little faith” – little faith, that is, in a strong central government. It is hard to think of anyone having such unexamined faith in government today.

Another 38 years later, it should be even more difficult to retain such faith.

Topics: 
Government and Politics, Law and Civil Liberties, Political Philosophy

Once More Unto the Treaty-Power Breach

By
Ilya Shapiro and Trevor Burrus

The Carol Anne Bond saga continues. Now in her second trip to the Supreme Court—and with Cato’s support for the fourth time—Bond is still hoping to avoid federal punishment stemming from her attempts to get back at her erstwhile best friend for having an affair with her husband.

Bond, a microbiologist, spread toxic chemicals on her friend’s car and mailbox. Postal inspectors discovered this plot after they caught Bond on film stealing from the woman’s mailbox. Rather than leave this caper to local law enforcement, however, a federal prosecutor reached into his bag of tricks and charged Bond with violating a statute that implements U.S. treaty obligations under the 1993 Chemical Weapons Convention.

Yes, rather than being charged with attempted murder and the like, Bond is essentially accused of chemical warfare.

Bond challenged the federal government’s power to charge her with a crime, arguing that Congress lacks constitutional authority to pass general criminal statutes and cannot somehow acquire that authority through a treaty. Before a court could reach this issue, however, there was a question whether Bond could even make that argument under the Tenth Amendment, which reaffirms that any powers not delegated to Congress are reserved to the states or to the people. On Bond’s first trip to the Supreme Court, the Court unanimously accepted the argument, offered in an amicus brief by Cato and the Center for Constitutional Jurisprudence, that there’s no reason in constitutional structure or history that someone can’t use the Tenth Amendment to challenge the constitutionality of the statute under which she was convicted.

On remand to the Philadelphia-based U.S Court of Appeals for the Third Circuit, and now with standing to challenge that law, Bond raised the argument that Congress’s limited and enumerated powers cannot be increased by treaties. We again filed in that case in support of Bond. The Third Circuit disagreed, however—if reluctantly—based on one sentence written by Justice Oliver Wendell Holmes in the 1920 case of Missouri v. Holland, which has been interpreted to mean that treaties can indeed expand Congress’s powers. With Cato supporting her bid to return to the Supreme Court on that treaty power question, Bond’s case reached the high court.

Now, in a brief authored by professor Nicholas Quinn Rosenkranz and joined by the Center for Constitutional Jurisprudence, the Atlantic Legal Foundation, and former attorney general Edwin Meese III—in what we hope will be our final filing in the case—we argue that a treaty cannot give Congress the constitutional authority to charge Bond. Allowing Congress to broaden its powers via treaties is an astounding manner in which to interpret a document that creates a federal government of limited powers.

Not only would this mean that the president has the ability to expand federal power by signing a treaty, but it would mean that foreign governments could change federal power by abrogating previously valid treaties—thus removing the constitutional authority from certain laws. This perverse result makes Missouri v. Holland a doctrinal anomaly that the Court must either overrule or clarify. We also point out how the most influential argument supporting Holland is based on a clear misreading of constitutional history that has been repeated without question.

Although Holland is nearly 100 years old, there is thus no reason to adhere to a precedent that is not only blatantly incorrect, but could severely threaten our system of government. We’re in a constitutional quagmire with respect to the treaty power, one that can only be escaped by limiting or overturning Missouri v. Holland.

The Supreme Court will hear oral arguments in Bond v. United States in October.

Topics: 
Foreign Policy and National Security, Government and Politics, Law and Civil Liberties

IRS’s Soaring Budget and Refundable Tax Credits

By
Tad DeHaven

Chris Edwards showed that the Internal Revenue Service’s budget has been soaring and the main culprit is refundable tax credits. The magnitude of refundable tax cuts is obfuscated in the IRS’s budget because only the refunded portion of the credit shows up as an outlay —the rest is recorded as a reduction in revenues. 

The Congressional Budget Office released a handy report on refundable tax credits in January. The following table from the report shows the entire magnitude of the tax credit, separating between the refunded portion (outlays) and the reduction in revenues:

 

As Chris noted, the figure has dropped in recent years with the expiration of temporary “stimulus” tax credits. However, the upward trajectory is projected to resume due to refundable tax credits in the Affordable Care Act (a.k.a, Obamacare).   

Topics: 
Tax and Budget Policy

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