Friday Legal Roundup

Here’s a Friday Legal Roundup:

  • North Carolina prosecutor Michael Nifong goes to jail for his misconduct in bringing reckless charges against Duke athletes. Cato will be hosting a book forum on the case next Tuesday. Previous coverage here and here
  • A federal judge has ruled that ”National Security Letters” are unconstitutional.  Cato said so here.
  • The Federalist Society has an on-line discussion on the landmark Second Amendment lawsuit involving Cato’s Tom Palmer and Bob Levy here. To learn more, go here and here.
  • President Bush is expected to announce his choice for the position of Attorney General. The Legal Times invited several D.C. lawyers, including myself, to offer advice to the next AG.  Go here for my list of Dos and Don’ts. If the Legal Times had not imposed word limits on my article, I could have said a lot more.

“Why Are You Trying to Give Away the President’s Power?”

Jack “I’m Not a Civil Libertarian” Goldsmith has more on the thirst for power inside the executive branch in excerpts from the book in Slate today.

[Counsel to Vice President Cheney David] Addington once expressed his general attitude toward accommodation when he said, “We’re going to push and push and push until some larger force makes us stop.” He and, I presumed, his boss viewed power as the absence of constraint. These men believed that the president would be best equipped to identify and defeat the uncertain, shifting, and lethal new enemy by eliminating all hurdles to the exercise of his power. They had no sense of trading constraint for power. It seemed never to occur to them that it might be possible to increase the president’s strength and effectiveness by accepting small limits on his prerogatives in order to secure more significant support from Congress, the courts, or allies. They believed cooperation and compromise signaled weakness and emboldened the enemies of America and the executive branch. When it came to terrorism, they viewed every encounter outside the innermost core of most trusted advisers as a zero-sum game that if they didn’t win they would necessarily lose.

More here.

Cato Brief in NYT

One of the big cases the Supreme Court will be hearing in its upcoming term concerns the constitutionality of the Military Commissions Act.  That law sought to revoke the jurisdiction of federal courts over habeas corpus lawsuits arising out of the Guantanamo Bay prison facility.  The case will not be heard by the High Court until November, but the New York Times had an article about it over the weekend quoting from the Cato brief (pdf) that I prepared.  I argue that Congress overstepped its authority by trying to withdraw the jurisdiction of federal courts over habeas corpus claims. 

More background about the case in this NYT article (reg r’d).  For more about the constitutional record of the Bush administration, read this.

Suspicious Standards

The primary belief underlying the No Child Left Behind Act – and much state-driven education reform – is that if governments set academic standards and then test students’ mastery of them, policymakers, parents, and the public will have the information they need to see how schools are doing and act on it. As Andrew Coulson and I explain in a new report on NCLB, however, that’s not how the belief has worked out in practice. Instead, most states have set low standards or used trickery to identify kids as “proficient” in math and reading when they’re really no such thing.

A report in the New York Daily News offers an interesting insight into one way by which such standards sliding can and has occurred, maybe intentionally, maybe not:

When test scores rise, politicians crow that schools are getting better, but a Daily News analysis of recent standardized math exams and a News experiment suggest another reason: The questions might be getting easier.

The News obtained technical details on high-stakes math tests given to fourth-graders across the state over the past six years and found that in every year when scores went up, testmakers had identified the questions as easier during pretest trials.

In years when scores were lower, pretest trials showed the questions were harder.

“That’s pretty strong evidence that something is just not right with the test,” said New York University Prof. Robert Tobias, who ran the Board of Education’s testing department for 13 years.

“If this were a single year’s data or two years’ data, I would say it would be inappropriate to make conclusions,” Tobias said. “But with the pattern over time …that’s prima facie evidence that something’s not right.”

Pretty Bad News in Higher Ed

First, the good news: Yesterday, a congressional conference committee passed legislation that would cut subsidies to lenders participating in federal student loan programs. Terrific! Lenders – especially Sallie Mae, the federally spawned queen of student loans – deserve no taxpayer-furnished profit, and this bill would get us a little closer to that ideal.

Unfortunately, the good news ends there. Only a measly $750 million out of about $22 billion in subsidy cuts would go to the taxpayers who have been forced to enrich lenders for decades – and that will be in the always-questionable from of “deficit reduction” – and the rest will be transferred to the other group on whom taxpayers have long been forced to lavish money through federal aid: students. The bill would cut interest rates on subsidized federal loans, for instance, from 6.8 percent to a minute 3.4 percent over four years; boost Pell Grants from the current maximum of $4,310 to at least $5,400 by 2012; and forgive loans after ten years of making payments for people in “public service” jobs ranging from firemen to prosecutors. And, in the end, the big lenders like Sallie Mae will probably be just fine, because the bill would institute an auction system in which lenders would bid for control over federal loans, giving the big guys huge advantages over little banks and lenders.

Student advocates are, of course, pleased as punch with all this, especially over at the New America Foundation, where for months they’ve been leading the charge against private lenders and for this auction scheme. Ironically, they partly hailed the compromise on the grounds that the auction would use “market forces to set student loan subsidy rates.” This, of course, begs the question: How can you love an auction because it supposedly uses market forces, while simultaneously supporting the gargantuan market distortion that is the overall federal student aid system? Unfortunately, the only possible answers seem to be that (a) you are a politician intent on bribing the college-going population and their parents to vote for you, (b) you are confused about how a real market works, (c) you work in academia and know that the more the government shells out, the better your life will be, or (d) all of the above.

Unfortunately, this legislation seems likely to be signed by president, and if it is, you can ultimately chalk it up to (d) being the answer in Washington.

Arguing Over the Emperor’s New Clothes

According to Alexander Russo at the Ed Week blog, Representative George Miller, chairman of the House education committee, has been going at it with Ed. Sec. Margaret Spellings over his proposed revisions to the No Child Left Behind act. Miller is quoted as saying that Spellings’ criticism that his revisions would “muck up accountability” are ”hokum.” This is very much like two members of the imperial court arguing over whether “the emperor’s new clothes” are fab or fugly. In order for NCLB to be “muck-uppable” it would have to be doing something useful to begin with. It isn’t. As Neal McCluskey and I document in our new study released today, NCLB has failed to fulfill its goals.

Still Conservatives?

For those of us who experienced the revival of Britain during the Thatcher years, the dismal plight of the British Conservative party under a series of post-Thatcher leaders has been startling and increasingly dismaying.

Short-lived Tory leaders have been intent on ditching the classical liberal principles that Thatcher and her inner coterie foisted on the party – principles that gave the Tories their finest years of the 20th century and ones that pulled Britain out of decades of economic failure. David Cameron, the current no-doubt short-lived leader, has been as determined as his recent predecessors to distance himself and the party from the Iron Lady and all that she stood for – from low, or at least lower, taxation, to expanding individual choice and on to a healthy skepticism of government.

Now at last one Tory grandee has had enough of the retreat from Thatcher principles. The former Thatcher cabinet member, Michael Ancram unveiled this week an alternative manifesto [pdf], entitled “Still a Conservative,” to the Cameron agenda, one that calls for a return to the core values that won four successive elections for the Conservatives. He warns that the British public perceives that the party lacks “an overall sense of vision and direction.” And he argues that the party should support lower taxes, leaving people with more of their own money to make their own decisions. By contrast, Cameron wants to match the Labour government’s public spending and has turned his back on lower taxes.

And there is much else in Ancram’s manifesto that would please libertarians and classical liberals, especially his call for the regulatory state to be turned back and his advocating of widening the areas of life left to individual choice rather than government diktat. There are things, though, in the manifesto that are unappealing – from his over-defined Euro-skepticism to his rejection of treating gay civil partnerships equally with marriage when it comes to benefits and taxes. He says there are other long-term relationships outside marriage which should be welcomed for their commitment, but “for Conservatives there can be no fudging the issue of marriage.”

It is a great pity that he overdoes the Euro-skepticism and is prepared to treat gays unequally – for at heart Ancram’s alternative manifesto places classical liberal principles front and center.

And how has Cameron and his supporters responded? Not much of a welcome: they have told him to hold his tongue. A party spokesman said: “This is just a blast from the past. Just as Britain has changed, the Conservative Party has to change along with it.” And a former cabinet colleague of Ancram’s, Michael Portillo, said: “I was a great admirer of Margaret Thatcher but to invoke Thatcherism now, a phenomenon which is 25 years old, just makes the Tory party look old-fashioned and, of course, divided.”

Well, apparently that isn’t the viewpoint of Labour Prime Minister Gordon Brown, who like his predecessor, Tony Blair, realizes that Thatcher is still a name to conjure by. This week he spoke of his admiration for the Iron Lady. “I think Lady Thatcher saw the need for change,” he told a press conference. “Whatever disagreements you have with her about certain policies – there was a large amount of unemployment at the time which perhaps could have been dealt with – we have got to understand that she saw the need for change.”