Christian Toleration

I’ve just seen an interesting new book, The Choice Principle: The Biblical Case for Legal Toleration, by Andy G. Olree, who is a graduate of the University of Chicago Law School, where he studied under Richard Epstein and Michael McConnell, and now teaches law at Faulkner University’s Jones School of Law. The book presents an evangelical Christian argument for a legal framework that tolerates most “sinful” choices by individuals.

Olree writes, “The Choice Principle posits that Christians are called to influence law and government in ways that maximize opportunities for human freedom of choice–that is, for individual autonomy.” And he applies that principle in ways that might surprise critics of the religious right, to issues ranging from prostitution and homosexuality to Social Security.

He criticizes Roy Moore, Jerry Falwell, Pat Robertson, and James Dobson as “fearmongers” who “simplistically reduce complex societal problems to…the age-old struggle of good versus evil.” But he also takes on more academically serious defenses of enforced morality, devoting an entire chapter to a critique of Princeton professor Robert George’s book Making Men Moral.

Christians and libertarians could learn a lot about each other from reading this book. Or to be more careful with my language: Christian libertarians will find this book an effective presentation of a principle they likely agree with. Non-Christian libertarians and non-libertarian evangelical Christians will find it a provocative challenge.

It’s Not about Same-Sex Marriage

The lead headline in the Washington Post on Tuesday reads “53% of Voters Say They Back Va. Same-Sex Marriage Ban.” Slate’s “Today’s Papers,” reporting on that story, says it shows that “Virginia voters [are] supporting a ban on gay marriage.” Washington’s public-radio WAMU refers to the upcoming vote as “the proposed ban on gay marriage.”

All these journalists are doing the supporters’ work for them. Bans on gay marriage have passed everywhere they’ve been placed on the ballot. That’s what the supporters of the Virginia amendment want voters to think they’re voting on. But that’s not what the Virginia amendment really does.

Same-sex marriage is already prohibited in Virginia, and there’s no prospect of legislative or judicial change in that fact. So this amendment is touted as banning something that is already banned.

The real impact of the amendment can be seen in its second sentence:

This Commonwealth and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage. Nor shall this Commonwealth or its political subdivisions create or recognize another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage. [emphasis added]

It’s not just about same-sex couples, and it’s not just about marriage. The law firm of Arnold & Porter analyzed [pdf] the amendment and concluded:

the [proposed Virginia] Amendment could be interpreted by Virginia courts to have the following effects:

  • Invalidate rights and protections currently provided to unmarried couples under Virginia’s domestic violence laws;
  • Undermine private employers’ efforts to attract top employees to Virginia by providing employee benefits to domestic partners, as the courts and public medical facilities may not be permitted to recognize those benefits; and
  • Prevent the courts from enforcing –

– private agreements between unmarried couples,
– child custody and visitation rights, and
– end-of-life arrangements, such as wills, trusts and advance medical directives, executed by unmarried couples.

The firm went on to say: “This exceedingly broad and untested language is the most expansive such proposal ever to have been put before the voters of any state.”

Journalists should not call this “the proposed amendment to ban same-sex marriage.” Rather, they should give readers and listeners a more accurate summary, along the lines of “the proposed amendment to restrict gay rights” or “the amendment on unmarried couples.”

Getting Data Breach in Perspective

Indiana University law professor and cybersecurity/informatics expert Fred Cate wrote sensibly in this weekend’s Washington Post about data security and identity fraud.  “The fact is that few if any [data] breaches lead to identity theft or other consumer injuries.”

When a Department of Veterans Affairs laptop with data on 26.5 million veterans was stolen earlier this year, VA notified all of them and asked Congress for $160.5 million to cover the cost of one year of credit monitoring.  Even if the laptop had not been returned (the data untouched), this reaction would have been overkill.

Washington has a hard time responding to problems dispassionately and proportionately.  If only this failing could be the crisis du jour - even just for a day.

Does Big Steel Still Dominate U.S. Trade Policy?

The chart above depicts the operating performance of the industry that is most protected by U.S. antidumping and countervailing duty restraints. As that chart demonstrates, the U.S. steel industry is in robust health–well outperforming overall manufacturing (i.e., its customers) for the past few years.

Should one conclude that that performance is a reflection of the insulation from competition it has been afforded? That’s likely to be one of the steel industry’s arguments before the U.S. International Trade Commission, which is holding a hearing tomorrow concerning the question of whether 13-year old antidumping and countervailing duty restrictions against imported corrosion-resistant steel from six countries should be continued for at least five more years. (This paper explains why revocation in these so-called Sunset Reviews is rare).

But those restrictions, as well as the 160 other trade remedy restraints currently in place to protect the steel industry, date back to the 1990s and earlier, when the industry’s performance was much closer to the first four bars than the last three. If anything, longstanding trade protection delayed the day of reckoning for many inefficient mills by discouraging them from exiting the market and encouraging continued inefficient operation.

From an operating perspective, the year 2004 stands out as a clear dividing line between the steel industry of old, and the new, revitalized industry of today. But the dramatic industry renaissance that has bestowed market power, record profitability, and insulation from any significantly adverse effects of foreign competition on U.S. steel producers began in 2002, after the government assumed $9 billion in the industry’s unfunded pension and health care obligations.

By wiping those liabilities off of the books of several major bankrupt steel producers, that intervention paved the way for mergers and acquisitions and new labor agreements that have enabled the industry to retire inefficient capacity, cut its fixed costs, and consolidate production decisions. In 2003, the top three producers of flat-rolled steel (the steel used in autos, appliances, and construction) controlled 25 percent of flat-rolled steel production capacity. Today, the top three control 70 percent.

That concentration has given the domestic industry a high degree of market power, which enables it to prop up prices and weather downturns in demand by curtailing output. There’s nothing objectionable about that (with the exception of the government-assisted jumpstart) unless, of course, steel is a major component of the products you manufacture. What is objectionable, then, is buttressing this emerging oligopoly with continued trade restraints. Consumers of steel should be expected to adapt to the effects of greater concentration of steel production, but that adaptation requires having access to imported substitutes and supplements.

Taxpayers, steel-using industries, and consumers have subsidized this industry for too long.

The ITC’s decision, expected in December, will speak volumes to the question of whether that agency continues to be a rubber stamp for the steel lobby’s protectionist agenda.

Specter’s Signing Statement Bill

Whilst buried by my Cato Supreme Court Review duties, I missed an opportunity to weigh in on the summer blog debate over presidential signing statements (i.e., the president’s practice of announcing how a bill will be interpreted by the executive branch).

My general views track Marty Lederman, Walter Dellinger, et al.’s analysis in this post, which concludes that most common complaints about signing statements are overblown.

There is one problem that Lederman et al. don’t mention: the risk that courts will defer to signing statements when the law is ambiguous. Currently, the Court gives deference to agencies’ interpretation of ambiguous laws, under a narrow set of conditions set out in cases like United States v. Mead. In Mead, the Court underscored that judicial deference to the executive is controlled by Congress. Courts defer to the executive when the law is unclear based on a background assumption — a legal fiction, really — that this deference is what Congress wants when it passes an ambiguous law. 

The Court has never decided whether the president deserves the same deference as the agencies under his control. Courts certainly won’t give any deference to presidential constitutional interpretations, just as they don’t give deference to the constitutional interpretations of agencies. But it’s possible that future courts might defer to some nonconstitutional signing statements, and the explosion of signing statements in this administration suggests the president is perhaps making a bid for recognition of some such future deference. If that bid is successful, the president’s interpretation would act as a kind of “super-legislative” history, trumping competing legislative history by members of Congress when the text of a law is unclear.

Under Mead, Congress has the power to command courts not to defer to signing statements. Sen. Arlen Specter (R-Pa.) has introduced a bill to do just that and, if this were all the bill did, it would deserve the support of all who care about maintaining a balance of power between the president and Congress. Unfortunately, the bill is saddled with some additional provisions that are constitutionally problematic.

Here’s what these additional portions of the bill say:

SEC. 5. CONGRESSIONAL STANDING TO OBTAIN DECLARATORY JUDGMENT.

Any court of the United States, upon the filing of an appropriate pleading by the United States Senate, through the Office of Senate Legal Counsel, and/or the United States House of Representatives, through the Office of General Counsel for the United States House of Representatives, may declare the legality of any presidential signing statement, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.

SEC. 6. CONGRESSIONAL RIGHT TO INTERVENE OR SUBMIT CLARIFYING RESOLUTION.

(a) Notice to Congress- In any action, suit, or proceeding in the Supreme Court of the United States, wherein the construction or constitutionality of any Act of Congress in which a presidential signing statement was issued, the Supreme Court shall certify such fact to the Office of Senate Legal Counsel and to the Office of General Counsel for the United States House of Representatives.

(b) Congressional Right To Intervene- In any suit referenced in subsection (a), the Supreme Court shall permit the United States Senate, through the Office of Senate Legal Counsel, and/or the United States House of Representatives, through the Office of General Counsel for the United States House of Representatives, to intervene for presentation of evidence, if evidence is otherwise admissible in the case, and for argument on the question of the Act’s construction and/or constitutionality. The United States Senate and House of Representatives shall, subject to the applicable provisions of law, have all the rights of a party and be subject to all liabilities of a party as to court costs to the extent necessary for a proper presentation of the facts and law relating to the question of constitutionality.

(c) Congressional Right To Submit Clarifying Resolution- In any suit referenced in subsection (a), the full Congress may pass a concurrent resolution declaring its view of the proper interpretation of the Act of Congress at issue, clarifying Congress’s intent, and/or clarifying Congress’s findings of fact. If Congress does pass such a concurrent resolution, the Supreme Court shall permit the United States Congress, through the Office of Senate Legal Counsel, to submit that resolution into the record of the case as a matter of right.’.

Ironically, these provisions are far more constitutionally problematic than the signing statement itself. There are three ways to read these portions of the bill:

First, Specter’s bill might be read to invite judicial deference to Congress’s post-enactment interpretations, when introduced into the record by Senate leg counsel, as the word “clarifying” may suggest.    

Second, perhaps the bill’s provisions are protective, allowing Congress to defeat executive reliance on presidential signing statements very quickly, shutting off the window of opportunity created by lengthy delays in private litigation.

Or perhaps, finally, the bill is simply designed to allow Congress a say in court, leaving courts free to treat Congress’s views as they wish, much as they can consider a law review article or amicus brief.

The first interpretation is clearly problematic under cases like INS v. Chadha and Bowsher v. Synar, which hold that Congress can’t assign itself, or its subsets, the power to issue controlling interpretations of laws it passes. Intepretation is an executive and judicial function, not a legislative one. Therefore, Congress cannot delegate to itself the power to issue authoritative interpretations of unclear laws. If it disagrees with the way a law is implemented, its recourse is to clarify its intent by passing a new law. Bowsher v. Synar, 478 U.S. 714, 733 (1986). A necessary corollary is that Congress’s clarifying resolutions deserve no judicial deference.

Perhaps it might be argued that a bicameral resolution endorsing a signing statment would meet the requirements of bicameralism and presentment outlined in Article I, Section 7 of the Constitution, in effect amending the bill. But presentment envisons an order of decisionmaking in which Congress initiates a statutory amendment, presenting it, in turn, to the president — an order of proceeding that restrains the creation of new law, since it is more difficult for Congress to act swiftly.

The second and third interpretations are less clearly problematic as a matter of first principles, but they raise separation of powers problems under current caselaw. They arguably assign an executive power — the power to represent the general legal interests of the United States in the proper enforcement of the law, as opposed to concrete interests of a house or member of Congress in legislative rights and privileges — to Article I legal counsel who are removable entirely at the discretion of Congress, something Bowsher says is a no-no. Moreover, and relatedly, after Raines v. Byrd, it’s hard to see how Congress can grant its own counsel “party” status in litigation without violating the case or controversy requirement of Article III, since Congress has no concrete stake other than its general interest, shared with the public, in the proper interpretation of the laws. 

I’m sympathetic to the Specter bill’s goal — to cut off the signing statement as a wedge for expanding executive power — but it’s on strongest ground in its simple command to courts to ignore presidential signing statements. 

If You Cut the Budget, The Terrorists Win!

Peter Beinart tells readers of this week’s New Republic that the conservative critics of President Bush need to just get over themselves. 

As Beinart writes:

To listen to Bush’s critics, you would think that discretionary, nonsecurity-related spending has exploded on his watch. [Note: Emphasis is mine — you’ll see why this is important in a minute]. But it hasn’t. As the Center on Budget and Policy Priorities has shown, when you take account of inflation and population growth, it grew a mere 2 percent between 2001 and 2006. And, as a percentage of GDP, it actually fell. What has exploded — rising 32 percent after inflation and population growth — is spending on defense, homeland security, and international affairs. And the people most responsible for those increases are conservatives themselves, who demanded an expansive war on terrorism.*

The first half of the claim boils down to this: If you strip away defense, homeland security, entitlement spending and international aid — what Beinart calls “discretionary, nonsecurity-related spending” — you discover that government hasn’t really grown all that much by historical standards. 

The problem? Those categories account for 80 percent of the entire federal budget.

Call it the “Yeah, but” defense. Yeah, the budget has expanded massively, but if you take away the really big categories — and don’t feel compelled to clarify how you’re defining those big categories — then we come off looking really good! (Of course, as I’ve pointed out elsewhere, the GOP really doesn’t come off looking good. Let’s just assume they do for the sake of argument.) 

What’s missing from this don’t-mind-the-man-behind-the-curtain reasoning is an explanation of why stripping away all those categories yields a more useful comparison than simply looking at overall spending in the conventional and broadly-defined categories. Beinart doesn’t provide one. 

Avoiding such an explanation, however, ignores an important part of the argument he’s trying to critique. One of the more substantial complaints about the modern GOP leaders — a complaint shared not just by fiscal conservatives but also by centrist Democrats who also worry that spending has gotten out of hand — is their unwillingness to pursue offsetting spending cuts elsewhere in the federal budget to pay for the military operations in Iraq and Afghanistan, or Hurricane Katrina relief, or the various and sundry government expansions that Bush and congressional leaders have dreamed up. 

The second part of Beinart’s claim that the ”war on terrorism” is driving defense spending is also flawed. Only 16% of the combined defense budgets of the past six years went to the military operations in Iraq and Afghanistan, according to CBO estimates … and that’s assuming you include the Iraq operations as part of the war on terrorism. Why ignore the remaining 84 percent of the Pentagon budget?

The fiscal conservative critique of the GOP is in part a reaction against the presumption that all categories of spending — from unnecessary defense systems to crop subsidies — must rise or else the terrorists will “win.”  Recall, for instance, that the rhetoric around the 2002 farm bill was heavily laden with various references to national security. A “Dear Colleague” letter from Alabama Republican Terry Everett is indicative of the rhetoric used by supporters of that bill. In the letter, Everett claimed the bill would help “strengthen America’s national security” and “keep America strong.”   

Excluding all entitlement programs is also too nice to the GOP — or any party in power, for that matter. Congress has the power to moderate the growth of these programs, but they haven’t used that power more than once in the past six years and then only to very minimal effect. They could have reformed these programs, too, but they didn’t. Nor did they have to expand Medicare.       

I think government should be doing less. I have deep doubts about the war in Iraq. And I’m not a member of the doing-more-with-less school of efficient-government conservatism. But I and other Bush critics would certainly have less solid ground to stand on if overall government spending had remained tame over the past six years. Remember that under Reagan, despite a massive defense buildup, overall real annual federal budget growth was 2.6% — close to half the rate under George W. Bush so far. The rate was so low in the 1980s — lower than any president since Eisenhower — because substantial tradeoffs were being made in the budget then. Tradeoffs are not being made today.

Stripping out all sorts of different spending categories simply lets the GOP off easy. It also puts Beinart in the strange position of parroting the same defense the White House has used to fend off criticism of the president’s record.

A New Republic writer defending a Republican president’s budget record. Left-of-center analysts rallying to the defense of a GOP Congress. What’s next?  Dogs and cats living together?

* - An argument over whether these numbers are solid has already taken place at The American Scene blog run by Ross Douthat and Reihan Salam, who also use the CBPP numbers to rebut criticisms of President Bush. “War on terror” and “homeland security” expenses are both non-traditional budget categories that are not consistently delineated in the official federal data on spending. Any attempt to disaggregate the data must rely on multiple assumptions about how you classify each sort of spending program. In other words, readers need to take the CBPP estimates with more than a few grains of salt. (For more criticism of their estimates, numbers-junkies can read my Cato study from 2005 and my new book.) 

Robberies in the Capital

Today’s Washington Post has a front page story on robberies in the District of Columbia.

The District of Columbia has one of the strictest gun control laws in the United States. And the old saw about gun control is that when guns are outlawed, only outlaws will have guns. (Important loopholes: The mayor has his own armed security detail and so do other government employees.)

On this map of the city, the red dots indicate robberies where the criminal brandished a gun against the victim. Query: Is the city’s gun control policy helping the people or the criminals?

Go here for Cato material on gun control. To learn more about a constitutional challenge to DC’s gun control law, go here.