Yes, Ted Cruz Is Eligible to Be President

As Ted Cruz announces his White House candidacy, let me forestall a new round of birtherism prompted by the discovery that the Texas senator was actually born in a different oil patch: Calgary, Alberta, Canada. I looked at the whole “natural-born citizen” requirement a couple of years ago and concluded that Cruz’s eligibility for the presidency is an easy legal call. Here’s the heart of the matter:

So the one remaining question is whether Ted Cruz was a citizen at birth. That’s an easy one. The Nationality Act of 1940 outlines which children become “nationals and citizens of the United States at birth.” In addition to those who are born in the United States or born outside the country to parents who were both citizens … citizenship goes to babies born to one American parent who has spent a certain number of years here.

That single-parent requirement has been amended several times, but under the law in effect between 1952 and 1986 — Cruz was born in 1970 — someone must have a citizen parent who resided in the United States for at least 10 years, including five after the age of 14, in order to be considered a natural-born citizen. Cruz’s mother, Eleanor Darragh, was born in Delaware, lived most of her life in the United States, and gave birth to little Rafael Edward Cruz in her 30s.

In an amusing footnote, when this mild controversy first arose, Cruz quickly renounced any claim to Canadian citizenship. This prompted my good friend and sometime co-author Josh Blackman to present me with a filled-out renunciation application after I naturalized as a U.S. citizen last June. I have not signed or submitted this document, however, because there’s really no need – and who knows when a second passport might come in handy? (The State Department allows dual citizenship even though the naturalization oath requires a new citizen to “renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, of whom or which I have heretofore been a subject or citizen.”) Rest assured that if I’m ever required to give up my Canadian citizenship to get a security clearance or for some other official reason, I will do so, much as I owe to the country where I grew up after my family left the Soviet Union.

The GOP and the Great War Spending Scam

I have an op-ed in The National Interest dealing with the GOP’s intramural squabble over defense spending levels in the House and Senate’s budget resolutions for fiscal year 2016, which have now passed their committees.

I explain there how the Republican chairmen of both committees tried to restrain military spending, but lost out to military hawks in their caucus in a newly pernicious way. The resolutions limit appropriations to the legally mandated cap for non-war “defense” spending. But they stuff $38 billion that the White House wanted for the Pentagon above the cap into the uncapped war (“Overseas Contingency Operations” or OCO) account, taking an established scam to evade caps and making it far larger and more blatant. If these spending levels hold, in 2016 the Pentagon would get a total budget roughly equal to its current one, but a much bigger chunk of it would come via OCO.

Thus far, then, the fight between GOP budget and fiscal hawks has produced a compromise that offers a new sort of militarism amid a pretension of fiscal responsibility. That outcome, I argue, may be worse than giving the administration a deal to raise the cap:

The problem … isn’t just that military spending is too high. It is also that this method of paying creates perverse incentives. If OCO becomes an auxiliary Pentagon fund that exists to escape caps, war becomes the Pentagon’s budgetary salvation. Historically, the elements of the defense establishment benefit from a public sense of insecurity, but not necessarily war. This new set-up could change that.

I say “may” be worse because of a couple uncertainties. One is that hawks upset about this arrangement may have a point. They worry that locating this money in a shrinking war account makes it unlikely to last. I hope not.

Second, the reaction of Democrats is uncertain. Some may work with Republican budget hawks to strip the extra OCO money out on the floor, which has happened before, albeit on a smaller scale. Under current Senate rules, that apparently takes only 50 votes. But those Democrats–like President Obama, Armed Services Committee Ranking Member Jack Reed (D-RI), and various other heavies–who want to boost military spending may agree to do so through OCO. Where the leadership comes down, I can’t say.

You Ought to Have a Look: Intimidation in Science

You Ought to Have a Look is a feature from the Center for the Study of Science posted by Patrick J. Michaels and Paul C. (“Chip”) Knappenberger. While this section will feature all of the areas of interest that we are emphasizing, the prominence of the climate issue is driving a tremendous amount of web traffic. Here we post a few of the best in recent days, along with our color commentary.

Talk of interference, intimidation, and abridgement of scientific freedom continues to make the news this week—and increasingly is taking the form of pushback against recently announced congressional investigations into sources of scientific research funding.

On Tuesday, the Wall Street Journal ran an editorial offering a “round of applause for those pushing back, providing the bullies a public lesson in the First Amendment.” Highlighted in their coverage were efforts by the Cato Institute, Heartland Institute and Koch Industries condemning attempts to “silence public debate” on climate change. From the WSJ:

Democrats and their allies have failed to persuade Americans that climate change is so serious that it warrants sweeping new political controls on American energy and industry. So liberals are trying to silence those who are winning the argument. We’re glad to see the dissenters aren’t intimidated.

Also unintimidated by attempts abridge academic freedom is Alice Dreger, professor of Medical Education-Medical Humanities and Bioethics at Northwestern University and a historian of science and medicine. Dreger has a new book out titled Galileo’s Middle Finger: Heretics, Activists and the Search for Justice in Science that describes how activists try to intimidate researchers when the activists disagree with the researchers’ work.

Roger Pielke Jr. reviews the book for Nature. From his blog, leading into his review, Roger describes why he empathizes with Dreger:

National School Choice Proposal Heartening, Frightening

According to the American Federation for Children, Sen. Marco Rubio (R-FL) and Rep. Todd Rokita (R-IN) have reintroduced “the Educational Opportunities Act, which would create an individual and corporate tax credit for donations that pay for scholarships for students to attend a private school of their parents’ choice.”

It is encouraging to see growing support for scholarship tax credit school choice programs, which have been found to simultaneously boost achievement for students who switch to private schools, do the same for students who remain in public schools, and save taxpayers millions of dollars every year–a win-win-win scenario. Nevertheless, it is ill advised to pursue such a program (or other school choice programs) at the federal level.

Years ago I summarized those problems when President George W. Bush advocated creating a federal school voucher program. Such programs are not only beyond the mandate accorded to Congress by the Constitution, they bear the risk of suffocating private schools nationwide with a raft of new regulation, defeating their very purpose of increasing the range of educational options available to families with limited means.

In the past few years I have visited Sweden and Chile and studied their federal school chioce programs. Both confirm my earlier worries about national programs. Chile’s entrepreneurial voucher schools grew rapidly at first, but with a recent change of government hostile to the program they have sensed the new climate and stopped expanding.The new government is trying to enact regulations to diminish the scope and freedom of private schooling in Chile.

Meanwhile, something similar is happening in Sweden. Among other things, the government has mandated that all schools hire graduates of government-certified teacher training programs, despite the well known fact that those programs are currently attracting the lowest-achieving college students.

National school choice programs have proven to be a prime case of “staff car legislating.” The legislators who enact them are not always the ones in the official staff cars, making the rules. New lawmakers with different preferences ultimately come to power and can wreak havok on a nation’s entire K-12 education sector.

This problem can be minimized by leaving school choice legislation to the state level, where the Constitution rightfully leaves it. We thus have a “laboratory of federalism”–a variety of different policies across states that make it easier to determine how best to design such programs.

King v. Burwell Doesn’t Present a ‘Coercion’ Question

I have a post over at National Review Online’s Bench Memos blog that explains why, contrary to Supreme Court Justice Anthony Kennedy’s concerns, the King v. Burwell challengers’ interpretation of the Patient Protection and Affordable Care Act (a.k.a., PPACA, ACA, and ObamaCare) doesn’t coerce states. At least, not under the Court’s current tests for determining whether Congress is coercing states.

If you happen to be a busy Supreme Court justice, here’s a spoiler:

1. The ACA’s exchange provisions don’t penalize states. They let states make tradeoffs between taxes, jobs, and insurance coverage.

2. Roughly half of states appear to consider those costs tolerable. Prior to 2014, eight states voluntarily imposed this supposedly coercive penalty on themselves.

3. This “deal” is comparable to what the Court allowed in NFIB v. Sebelius. In NFIB, the Court allowed states collectively to turn down Medicaid subsidies for as many as 16 million poor people. The exchange provisions permit states to do the same for 16 million higher-income residents.

I have no objection to the Court lowering the bar for demonstrating that cooperative federalism programs coerce states. But the Court will have to lower the bar quite a bit to find the ACA’s exchange provisions coercive.

If you aren’t a busy Supreme Court justice, or even if you are, read the whole thing.

Say No to the ‘Utah Compromise’

Gov. Gary Herbert (R) has signed into law an expansion of Utah’s anti-discrimination law following what’s being billed as a historic compromise between gay rights advocates and the Church of Jesus Christ of Latter-Day Saints. Unfortunately, as I argue at the Daily Beast, both halves of the compromise are bad news for individual liberty and freedom of association in the workplace. Excerpt:

As I noted at the Cato Institute’s website a while back, these laws “sacrifice the freedom of private actors—as libertarians recognize, every expansion of laws against private discrimination shrinks the freedom of association of the governed.”

That’s the familiar half of the story. What’s new about the Utah Compromise is that it adds completely new restrictions on employers’ rights to keep the workplace focused on work as opposed to religious or moral debate. In particular, it allows employees to sue on a claim that they were fired or otherwise treated poorly for talking about religion or morality in the workplace, at least if they were doing so in a way that was “reasonable” and didn’t interfere with the employer’s “essential” business interests.

When an employee then begins treating customers or co-workers to unasked-for disquisitions about religious or moral matters, it will apparently be the state of Utah—rather than, as now, the folks in human resources—who will have the final say as to whether the topic is “similar” to others on which discussion had previously been allowed, and whether the proselytizing or reproachful comments taken as a whole were “reasonable” or by contrast “harassing or disruptive.”

And I conclude:

It’s not clear whether anyone was at the table speaking up for employers’ rights and interests during the Utah negotiations. It’s a lot easier to reach what’s hailed as a historic compromise if you can do so at the expense of absent third parties, isn’t it?

Whole thing here.

DEA ‘Cold Consent’ Encounters Constitute Federal Stop-and-Frisk

Over at Forbes, the Institute for Justice’s Nick Sibilla details a new report from the Department of Justice concerning the Drug Enforcement Administration’s practice of cold-stopping travelers at airports, bus stations, and train stations and asking to search their property looking for forfeitable assets.

Federal drug agents may be racially profiling and unjustly seizing cash from travelers in the nation’s airports, bus stations and train stations. A new report released by the Office of the Inspector General for the U.S. Department of Justice examined the Drug Enforcement Administration (DEA)’s controversial use of “cold consent.

In a cold consent encounter, a person is stopped if an agent thinks that person’s behavior fits a drug courier profile. Or an agent can stop a person cold “based on no particular behavior,” according to the Inspector General report. The agent then asks the people they have stopped for consent to question them and sometimes to search their possessions as well. By gaining consent, law enforcement officers can bypass the need for a warrant.

While many people who believe they have nothing to hide may–inadvisably–consent to a police search, they may not be familiar with federal civil asset forfeiture laws, which give federal agents wide latitude to seize property, especially cash, without charging anyone with any crime. Sibilla notes that the DEA agents even go so far as to carry affidavits for search targets to sign disclaiming any rights to the property being seized. 

Disturbingly, the Inspector General found that DEA interdiction task force groups have been seizing cash from travelers and then urging them to sign forms disclaiming their own cash and “waiving their rights.” In one cold consent encounter, DEA agents stopped another African-American woman in part because she was “pacing nervously” before boarding her flight. After gaining her consent, the agents searched her luggage and found $8,000.