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

Big Sugar Tries to Protect Its Sweet Deal from “Big Candy”

By
David Boaz

We’ve written about the outrageous sugar import quotas here many times. And Chris Edwards wrote in March about the American Sugar Alliance’s ad in the Washington Post titled “Big Candy’s Greed.” But we couldn’t link to the ad because for some reason the American Sugar Alliance has not chosen to put a version of the ad on its website. But the Alliance ran its expensive quarter-page ad in the Post last week, so we’re now able to provide the public service of making it available online.

Note that what candy producers and other sugar users want is to be allowed to buy sugar from the world’s most efficient producers at world market prices—just like every company in a free market. This protectionist nonsense “Big Candy” is fighting has been going on for decades. In 1985, the Wall Street Journal and then the New York Times reported that the Reagan administration had slapped emergency quotas on “edible preparations” such as jams, candies, and glazes—and even imported frozen pizzas from Israel—lest American companies import such products for the purpose of extracting the sugar from them. Apparently it might have been cheaper to import pizzas, squeeze the tiny amount of sugar out of them, and throw away the rest of the pizza than to buy sugar at U.S. producers’ protected prices.

As Chris Edwards noted, a critic of Big Sugar quoted in this article summarized the sad reality of sugar growers: “They are unlike any other industry in Florida in that they aren’t in the agricultural business, they are in the corporate welfare business.” 

Please enjoy “Big Candy’s Greed,” brought to you by the coddled, protected, price-supported, politically active U.S. sugar industry:

Big Sugar Ad

Topics: 
Government and Politics, Trade and Immigration

Government… IS… PEOPLE!

By
Andrew J. Coulson

The Christian Science Monitor suggests this lesson be drawn from the Obama administration’s recent scandalpalooza:

Congress should use this IRS scandal to beef up civics education for federal workers as well as for public school students. Lesson No. 1: Government cannot restrict or discriminate against political causes that it disagrees with.

I think the scandals teach a different lesson: Government will misbehave because it, like Soylent Green, is made from people. Fallible, foible-ridden people. Therefore, government’s unique powers must be strictly limited to avoid miscarriages of justice.

One of these days, someone should build a nation on that lesson….

Topics: 
Education and Child Policy, General, Government and Politics

Three Questions about Government Spying on the Press

By
Julian Sanchez

It’s heartening to see widespread outrage—both online and from members of Congress—about the news that Justice Department vacuumed up phone records spanning two months from 20 phone lines belonging to the Associated Press or its employees. This may not be a return to the bad old days of J. Edgar Hoover, who kept files of derogatory information about hostile journalists, but surveillance of the press—even in the course of otherwise legitimate investigations—always threatens to impede the vital check on government the Fourth Estate provides. A subpoena covering so many of a major news organization’s phone lines, including shared switchboard and fax numbers used by scores of reporters, for such an extended period, seems especially troubling in the context of this administration’s unprecedented war on whistleblowers. It’s effectively a warning that nobody who speaks to the press without White House approval—whether they’re leaking classified secrets or just saying things the bosses wouldn’t like—can count on anonymity.  I’ll have plenty more to say about this soon, but a few key questions reporters and legislators ought to be asking:

  • DOJ regulations are supposed to require a careful balancing of investigative needs against First Amendment values before reporter records are sought, with advance notice to the press whenever possible. The AP is fairly certain its records were seized as part of a leak investigation aimed at uncovering the source of  a story about a foiled terrorist plot—a story the AP itself sat on until they were convinced publication posed no national security risk. The administration itself was on the verge of announcing the same facts. Given that anonymous sources discussing classified matters with press are a routine and indispensable part of journalism, what made this investigation so urgent that it was necessary to use methods experts agree were far more broad and intrusive than the norm?
  • Read hyper-literally, those same DOJ regulations refer only to “subpoenas” directed at journalists themselves or seeking “telephone toll records.” And the DOJ’s own operational guidelines make quite clear that they do read the rules hyper-literally: They apparently are not held to apply to the myriad tools other than grand jury subpoenas at the government’s disposal, such as National Security Letters or administrative subpoenas. Does DOJ employ a similarly literal reading of “telephone toll records,” such that they’re not required to observe these rules when they obtain other electronic records, such as e-mail transactional data? The DOJ, recall, says they often don’t need warrants to read e-mail or Facebook chats, let alone review transactional metadata concerning such communications. So it seems odd that they would pull out all the stops when it comes to phone records, yet ignore the channels by which modern reporters probably conduct the bulk of their correspondence. Even if it would have been infeasible to access logs of AP’s e-mail transactional data without tipping them off (my understanding is they maintain their own e-mail servers), nearly every journalist has potentially revealing Facebook friend lists, personal Gmail accounts, Twitter direct message headers, and so on—some of which would be more targeted than records from phone lines shared by dozens of journalists. Was other data that DOJ believes to be outside the scope of their reporting obligations—either because it wasn’t obtained by “subpoena” or because it wasn’t “telephone toll records”—obtained in this case? More broadly, how much press data is obtained without notification because it falls outside these categories?
  • Thanks to a 2010 Inspector General report, we know a bit about the FBI’s use of “community of interest” data requests that sweep up call log data not just on a single target, but all the phones their target is in regular contact with—and maybe even the numbers those phones are calling too. After using this technique for years—sometimes literally by accident—FBI sought an Office of Legal Counsel opinion about whether the press notification rules applied when such requests were likely to indirectly pull in press records. In January 2009, OLC concluded they did—but since they ended up not getting the records in that instance, and the agent making the request apparently hadn’t understood quite what he was requesting, the FBI decided it didn’t need to tell anyone at the time. What, then, is the Justice Department’s current policy when it comes to information about press communications obtained indirectly through “community of interest” requests? Is any attempt made to ascertain when such requests have acquired reporters’ phone records, whether or not that was either intended or foreseen when the request was made? Since records in the FBI database are retained indefinitely for potential future data mining, even records the FBI doesn’t currently know belong to reporters could easily end up revealing patterns of press activity as a result of future analysis. Does DOJ think it must inform reporters when this happens, or is it only at the acquisition stage that the notice obligation applies?  Has any broad effort been made to determine how many reporter records are in FBI databases, especially as a result of requests made before 2009? 

Of course, whatever the answers to these questions, the Electronic Frontier Foundation is right to point out that the broader problem is that communications metadata isn’t entitled to much protection under either current Fourth Amendment jurisprudence or federal statute. This means the government can typically access metadata with little or no judicial oversight—and if you’re not a reporter there are no special rules requiring the government to ever notify you that your records have been swept up in some investigation. As technological change makes such metadata increasingly revealing—because nearly everything you do online leaves some digital trace, from which ever more detailed inferences can be drawn using sophisticated analytic tools—the problem is not just for press freedom: it’s a privacy problem for all of us.

Topics: 
Law and Civil Liberties, Telecom, Internet & Information Policy

Iran: Political and Religious Persecution Proceeds Apace

By
Doug Bandow

The Islamic Republic of Iran will soon hold a presidential election. The result is in doubt—the clerical elite itself is split—but the country’s overall direction unfortunately is not. Iran has a deteriorating human rights record. Although Tehran is not the bloodiest or most tyrannical government in the Middle East, repression is increasing and the space available to regime opponents is diminishing.

Most attention has been focused on the unpleasant potential of an Iranian nuclear weapon. There is good reason to maintain an active campaign to forestall such a prospect. However, war almost certainly is a worse option. Bombastic rhetoric is common in Tehran, but the diverse political and religious figures now bitterly battling over power and wealth seem pragmatic, not suicidal. There is no reason to believe that the United States (as well as Israel) cannot deter Iran even if the latter developed an atomic bomb.

Iran’s worsening religious persecution is far less publicized. As I note in my latest Forbes online column, Tehran has generated a not-so-enviable record in brutalizing religious minorities—Baha’is, Christians, Jews, Zoroastrians, and Sunni Muslims. Such behavior belies a lack of confidence in the dominant theology which underlies the regime.

Sadly, there isn’t a lot the U.S. government can do. But people of goodwill around the world might achieve more. As I argue in Forbes online:

The West’s leverage over Iran is minimal. Some activists have criticized the Obama administration for not doing more, but it is not clear what more could be done, given the sanctions already imposed regarding the nuclear issue.

There may be a better hope of using international popular pressure. Explained [Indiana University Professor Jamsheed] Choksy, “Despite their heavy-handed actions, the Islamic Republic’s hard-liners seek to present their rule as benevolent and humane,” and therefore the regime has been “exhibiting rising concern about negative public perceptions of its rule.”

Individuals, groups, and activists, especially those which have not been at the forefront of the campaign to sanction and even bomb Iran, should press the Iranian government and other entities, from media to business, and protest the manifold violations of human rights. Visiting officials should be embarrassed by protestors. The regime should understand that its fight against sanctions for its nuclear activities continues to be undermined by its brutality at home.

Ahmed Shaheed, the UN Special Rappoteur, confirmed that public pressure works. In March he noted that “At least a dozen lives were saved because of the intervention of international opinion.” More such action is needed.

In 1979 the Iranian people overthrew the Shah, a corrupt thug long supported by Washington. Alas, the Iranian revolution delivered even more tyranny. The Iranian people desperately await a revolution which actually liberates.

Topics: 
Foreign Policy and National Security

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