Questions for Mr. Holder

Today, the Senate Judiciary Committee is holding a confirmation hearing for Eric Holder, Obama’s nominee for Attorney General.  Here are some questions for Mr. Holder:

1.  You admit you made mistakes with respect to how you handled the pardon for Mark Rich.  Why do you think he was pardoned?  You are a former prosecutor and investigator–do you believe there was a corrupt bargain of some kind?

2.  You and Attorney General Janet Reno approved the violent raid by federal agents to take custody of Elian Gonzales.    Did you know in advance that agents waited until the judge familiar with the case left the courthouse for the day and then applied for a warrant from the evening magistrate, who was not as familiar with the circumstances of the case?  Did you know that federal agents used tear gas against peaceful protestors outside the home of Elian’s relatives?

3.  You have testified in favor of federal hate crimes legislation.  Where in the Constitution do you find authority for Congress to enact such legislation?  What is your view of the Tenth Amendment?  What federal criminal laws (enacted or proposed) fall outside of the purview of the limited and enumerated powers of Congress?

4.  In 2000, the Department of Justice maintained that the Second Amendment to the Constitution does not really guarantee the right of citizens to keep and bear arms.  The government can, in its discretion, take guns away from the citizenry.  Is that your view?  You did sign on to an amicus brief in the Heller case that defended the draconian gun control regulations of Washington, D.C.

5.   If a federal law enforcement agent for the FBI or DEA is involved in a questionable shooting and local prosecutors come to the conclusion that the law was broken and bring murder or manslaughter charges, will your department argue for blanket immunity from prosecution?  During the Clinton years, the Justice Department argued that federal agents “are privileged to do what would otherwise be unlawful if done by a private citizen.”  Do you think federal agents are immune from murder statutes?

6.  In Mahoney v. Babbitt, 105 F.3d 1452 (1997), you signed a brief that took a bizzare view of free speech rights.  You argued that people who support Bill Clinton could bring signs along the inaugural parade route, but that people who disliked Bill Clinton could be denied permits to bring signs to express their point of view.  Where did you get that from?  You say that as attorney general you would follow not only the letter but the spirit of the law, but your record does not support that.

Laudable Economic Stimulus Plan in Mexico

While the United States and many other countries flirt with the idea of raising barriers to trade, our enlightened neighbor to the south has a more promising response to the global economic contraction.

On January 2, the Calderon administration initiated a plan (discussed here; HT to Scott Lincicome) to unilaterally reduce tariff rates on about 70 percent of the items on its tariff schedule. Those 8,000 items comprising 20 different industrial sectors accounted for about half of all Mexican import value in 2007. When the final phase of the plan is implemented on January 1, 2013, the average industrial tariff rate in Mexico will have fallen from 10.4% to 4.3%.

The objectives of the plan are to reduce business operating costs, attract and retain foreign investment, raise business productivity, and provide consumers a greater variety and better quality of goods and services at competitive prices. Perhaps our free trade advocacy is having a positive impact on public policy after all. I suspect those objectives are very well served by the plan.

Mexico is no stranger to unilateral trade liberalization—so they’re not just grasping at straws here. This is a tried and true approach to economic growth in Mexico and throughout the world. Many of the reforms Mexico agreed to in the North American Free Trade Agreement were already undertaken before the NAFTA went into effect in 1994. They were undertaken with the same objectives in mind. So, Mexico has some experience and credibility on the issue of the benefits of unilateral trade liberalization.

Let’s hope the rest of the world is watching, if not waiting in the wings.

Now’s the Time To Pass School Choice

Gov. Mark Sanford is really on a roll lately, decrying and rejecting bailouts and now recommitting to real education reform. From the Beaufort Gazette:

The Republican governor highlighted four priorities in education reform: enacting funding that “follows the child,” charter school funding, school choice, and access to higher education.

Of course, the government school fanatics are trying to head him off again. Rep. Kenneth Hodges, D-Green Pond, for instance, thinks “now is not the time to toy around with school choice again… not in the environment that we are in now.”

Hmm. Fiscal problems, slow economy, and school choice has been shown over and over to save money. In fact, a large-scale program could save South Carolina taxpayers over $1 billion.

It’s the perfect time to pass a robust education tax credit system in South Carolina, or anywhere else for that matter.

A Question for Christian Brose

In a post at Foreign Policy magazine, former Condoleezza Rice speechwriter Christian Brose points to his participation in the drafting of a Rice speech that I’ve long found vexing.  The passage I found most puzzling was this:

William Appleman WilliamsAmerican Realism is an approach to the world that arises not only from the realities of global politics but from the nature of America’s character: From the fact that we are all united as a people not by a narrow nationalism of blood and soil, but by universal ideals of human freedom and human rights. We believe that our principles are the greatest source of our power. And we are led into the world as much by our moral ideas as by our material interests. It is for these reasons, and for many others, that America has always been, and will always be, not a status quo power, but a revolutionary power - a nation with New World eyes, that looks at change not as a threat to be feared, but as an opportunity to be seized.

Emphasis mine.  Suffice it to say that this is not the conventional view by historians of American diplomacy.  It is a revisionist view that has been advanced mostly by those on the extreme left and extreme right.  Those on the left generally believed that the economic concept of the Open Door thrust America ever outward, in search of markets for its products and to deploying force to feed the machine of American capitalism.  The right-wing interpretation basically agrees with this economically deterministic view but also overlays what, for lack of a better term, I’ll call a “neoconservative” ideological orientation onto basically the entire history of American foreign policy.  Kagan, for example, interprets the foreign policy vision of the Founders as being in general alignment with the view that it would be a good idea for the United States to unravel and reweave the social and political fabric of the Middle East.

It would be really interesting for Brose to explain what he and Rice meant by this.  Was it an endorsement of the Kagan interpretation of American diplomatic history?  Does Brose really place the revolutionary character of American diplomacy before, say, 1898?  What does he think about the book his Foreign Policy colleague Aaron Friedberg wrote about the role anti-state American ideology played in preventing the United States from even becoming a player on the world stage, much less a “revolutionary power” before 1945?  (Cf., Fareed Zakaria.)

Moreover, if, as Brose and Rice argue, the United States has “always been a revolutionary power,” wouldn’t it necessarily follow, for example, that Soviet diplomacy from 1945 onward was fundamentally defensive and that the Cold War was, itself, an American creation?  After all, how, if we were always a revolutionary power should the Soviets have responded after we dropped two nuclear weapons on Japan and began aiming our rhetorical sights on them?

Porqué Amo La Raza

Several months ago, the National Council of La Raza convened a group of health care wonks to help that organization make up its mind about how Congress should reform the tax treatment of health care.  The wonks included people from Harvard University, the Urban Institute, the Kaiser Family Foundation, Families USA, the United States Hispanic Chamber of Commerce, and elsewhere.

La Raza took the unusual step of inviting a libertarian (me) to be part of that discussion, despite our divergent views.  Where La Raza wants to expand the State Children’s Health Insurance Program, for example, I advocate repealing SCHIP.  I’m glad they invited me; it was one of the most enjoyable policy discussions I’ve ever had.

La Raza took the further unusual step of publishing a transcript of that discussion.  If you’ve ever wondered what it’s like to be a libertarian in the very un-libertarian world of health care policy – and you know you have – I recommend giving it a read.  Oh, and you’ll also learn a lot about health policy from a lot of smart people.

Here is the final product of those deliberations, La Raza’s policy paper on health tax incentives, in which La Raza plugs (without endorsement) my proposal for large health savings accounts.

Please Do Our Job, Congress Begs Executive Branch

At the Senate hearing on the nomination of Lisa Jackson to be administrator of the Environmental Protection Agency, Sen. Barbara Boxer pressed Jackson to regulate coal ash in the wake of two spills in Alabama and Tennessee. “You have the authority to regulate this,” Boxer told Jackson.

And, Boxer warned, if the unelected bureaucracy at EPA doesn’t issue a regulation soon, Congress just might have to legislate: “If we are not satisfied with action, we may move legislatively.”

As it happens, Article I, section 1, of the U.S. Constitution stipulates, ‘‘All legislative powers herein granted shall be vested in the Congress of the United States, which shall consist of a Senate and House of Representatives.’’ And as David Schoenbrod and Jerry Taylor wrote in the Cato Handbook for Congress:

For the first 150 years of the American Republic, the Supreme Court largely upheld the original constitutional design, requiring that Congress rather than administrators make the law. The suggestion that Congress could broadly delegate its lawmaking powers to others— particularly the executive branch— was generally rejected by the courts.

Today the chair of the U.S. Senate’s Environment and Public Works Committee tells a nominee for a position in the executive branch that if the bureaucracy won’t exercise Congress’s powers, Congress just may have to. (I’m not addressing here whether regulation of coal ash is a good idea, just the question of who should issue important and costly regulations.)

Of course, this comes a couple of weeks after President Bush said that if Congress wouldn’t give taxpayers’ money to General Motors and Chrysler, he would. In effect, his last grab for executive power was the power to appropriate money from the public fisc. But as Gene Healy pointed out, even here Congress was as much at fault as the president: it had effectively given him carte blanche in the TARP legislation, just as it did in the authorization for the Iraq war.

Congressional spinelessness is at least as big a factor as presidential arrogance in the rise of executive power.

Our Latest Salvo in the Battle Over Campaign Finance ‘Reform’

Today we filed an amicus brief in Citizens United v. Federal Election Commission, an election regulation/campaign finance case that will be argued before the Supreme Court in March or April.  Testing the bounds of the Court’s landmark decision in Wisconsin Right to Life II (WRTL II), the Federal Election Commission recently sought to apply certain prohibitions and disclosure requirements of the Bipartisan Campaign Reform Act of 2002 to advocacy group Citizens United’s political documentary, Hillary: The Movie, and to the group’s broadcast advertisements for the film.  Though the FEC conceded that the ads, at least, are not the functional equivalent of express campaign advocacy, as defined in WRTL II, it nevertheless determined that Citizens United must disclose the identities of its contributors. 

Cato’s brief argues that BCRA violates the First Amendment freedom of association belonging to those contributors, which freedom includes the right to associate anonymously and to control the group’s character and message free from government intervention.  For groups engaging in political speech, compelled disclosure of contributors’ identities infringes their freedom of private expressive association, a burden often no less severe than direct restraint of the group’s speech.  This type of government action must be subject to strict constitutional scrutiny—a level of scrutiny that in practice is almost always fatal.  The district court failed to afford sufficient value to associational rights and so failed to scrutinize appropriately BCRA’s unjustified infringement on those rights.