Archives: 07/2010

Immigration Law Ruling Half-Right But Crucially Wrong

The ruling demonstrates the problems the federal government creates when it fails to either enforce or reform our immigration laws.  Judge Bolton’s hyper-technical decision – anybody who tells you this case was black-and-white isn’t a serious lawyer – got it half-right: She correctly upheld most of SB 1070 and correctly struck down two sections of SB 1070 (a small part of section 5 and all of section 6), but incorrectly struck down two other sections (2 and 3).

One of the latter, section 2 – requiring police to determine the immigration status of persons they stop, detain, or arrest if they have a reasonable suspicion that said persons are unlawfully in the United States – is the most controversial part of SB 1070 and also the most controversial part of the ruling.  Judge Bolton construed section 2 as conflicting with federal law because it burdens federal resources and impedes federal agency functions, but how can it do that when the resources and agency functions in question are already (supposed to be) devoted to immigration enforcement?  The government’s decision not to enforce its own laws can’t possibly preempt a state law that merely mirrors those laws – laws the federal the government is charged with enforcing.

SB 1070 is a valiant attempt to deal with the breakdown in the rule of law caused by so many people living in the legal shadows.  While it’s not the best public policy – because it diverts law enforcement resources, divides police from their communities, burdens lawful residents, and ultimately harms the economy – it’s a frustrated citizenry’s perfectly understandable response to government failure.  Probably the best thing to come out of this whole episode – which isn’t over by any stretch – is that it thrusts the debate over comprehensive immigration reform into the forefront of national political debates.  This is a tough and nuanced issue that will end up in the Supreme Court again and again if Congress neglects to act.

Exchange by Fiat

A bunch of lawmakers — led by Reps. Defazio (D, OR), Slaughter (D, NY),  Kaptur (D, OH)  and Massa (D, NY) — recently introduced a bill (H.R. 1875) to establish an “Emergency Commission To End the Trade Deficit.” The House passed the bill by voice vote this afternoon.

After drawing Congress’ attention to a whole lot of scary-sounding data about the trade deficit (my colleague Dan Griswold explains why that metric is misleading as an indicator of national wellbeing), the national debt (which I agree is a problem) and the supposed death of manufacturing, the bill calls for a $2 million (for now) Commission, the purpose of which is to:

develop a trade policy plan to eliminate the United States merchandise trade deficit by January 1, 2019, and to develop a competitive trade policy for the 21st century. The plan shall include strategies necessary to achieve a balance of trade that fully reflects the competitiveness and productivity of the United States and also improves the standard of living of United States citizens. [my emphasis]

It is as though the standard of living for Americans over the past few decades of trade deficits had been falling, rather than rising.  As though a balance of trade was an end in itself.

A lot of the Commission’s work would be “merely” reporting on various aspects of our trade relationship with the rest of the world. But I do not for one second think that these lawmakers will be happy to take the Commission’s report and forget about it. They’ll want to torture that data until it confesses what they want, and then they’ll want to take action based on that confession. My hunch isn’t totally baseless, either. Plenty of clues lie in section 4(5), for example, which asks the Commission for suggestions for:

(A) the development of bilateral and multilateral trade relationships based on market access reciprocity; [i.e., managed trade]

(B) the retention and expansion of the manufacturing, agricultural, and technology sectors in the United States; [sounds like a call for protection]

(C) the discouragement of the expatriation of United States plants, jobs, and production to countries that have achieved competitive advantages by permitting lower wages or lower health, safety, and environmental standards, or by imposing requirements with respect to investment, performance, or other obligations; [ditto]

(D) methods by which the United States can effectively compete in a global economy while improving the labor, social, and environmental standards of its trading partners, particularly developing countries; [protectionism disguised in a humanitarian costume]

(E) methods by which the United States can respond to substantial shifts or manipulation of currency exchange rates that distort trade relationships; [highly risky – and probably ineffectual – unilateral sanctions on, reading between the lines, China]

(F) methods for overcoming and offsetting trade barriers that are either not subject to or otherwise inadequately addressed by the World Trade Organization or other multilateral arrangements; [unilateral sanctions outside the rule of international law that – for better or worse – the U.S. initiated, sponsored and adopted]

(G) specific strategies for achieving improved trade balances with those countries with which the United States has significant, persistent sectoral or bilateral trade deficits, including Canada, the People’s Republic of China, Mexico, and Japan; [see (A) above]

(H) methods for the United States to respond to the particular needs and circumstances of developing and developed countries in a manner that is mutually beneficial; [who knows what is lurking behind this statement] and

(I) changes that may be required to current trade agreements and organizations to allow the United States to pursue and nurture economic growth for its manufacturing, agriculture, and other production sectors in a manner that ensures improved compensation and quality of life for United States citizens. [sounds so pleasant and inoffensive, doesn’t it? Make no mistake, though: There’s a whole lotta infant industry protectionism lurking there. The use of the word “nurturing,” for example, is a flashing red light] (all emphases and bracketed comments mine)

If this bill passes the Senate and is signed into law (a big if, admittedly), that is the final death knell for any pending trade agreements, since the bill also calls for a moratorium on free trade agreements until the Commission’s report is issued and hearings held.

The freedom of individuals to trade across borders has rarely been held in so much contempt.


A Look Back at DISCLOSE

The DISCLOSE Act, as expected, failed on a cloture vote yesterday. Let’s review why it failed as a matter of politics:

The Democrats have majorities in both chambers of Congress. Many members of those majorities were concerned that Citizens United would lead to political speech that lessened their chances of re-election. The DISCLOSE Act was an effort, within limits imposed by the courts, to discourage that speech and thus increase the chances threatened members of the majority would be re-elected.

A simple disclosure requirement imposed on independent spending would not have done the trick. Many of the groups that congressional Democrats fear would have no problem with a simple disclosure attached to their independent ads. So the House sponsors ramped up the disclosure requirement in the bill by requiring CEOs to appear in the ad endorsing its content and the revelation of donors supporting the ad. They also broadened prohibitions on speech by government contractors and companies headed by non-citizens. Supporters of the legislation argued such prohibitions would cover most of the Fortune 500. The purpose of the legislation seemed to be getting around Citizens United and reinstating the ban on corporate speech.

The effort started to come apart when the National Rifle Association demanded an exemption from the enhanced disclosure mandates. The NRA had enough support from House Democrats to kill the bill so DISCLOSE’s sponsors exempted the NRA from its requirements. Other groups also wanted an exemption. Reformers were appalled even as the the groups granted exemptions grew by the day. The bargaining process that in most legislation became all but public with DISCLOSE. Like most “reform” bills, DISCLOSE presented itself as an ethical exercise to protect the integrity of the government. One does not bargain over righteousness. Senate Democrats threatened to vote against the bill because of the NRA.

After much work and more bargaining, a majority for the bill was found in the House. On the Senate side, the sponsors needed at least one Republican vote. They could not get it. The senators from Maine correctly surmised the bill was a crude partisan undertaking even by the standards of campaign finance. They also reasonably called for Congress to take its time and produce a bill that might not cause serious unexpected consequences. But the whole point of the bill was to move quickly to protect incumbents in the majority in the fall. Democrats settled for blaming Republicans for blocking the bill and hoping voters would remember all this in five months.

A simple disclosure requirement might have passed, but it would not have been very useful politically so it was not an option. More than anything else, the three or four months devoted to DISCLOSE indicated the intensely political nature of campaign finance regulation, a species of legislation said to be devoted to the general interest in government integrity. Once again political realities belie mistaken hopes held by the general public more than the seasoned pols on Capitol Hill.

More on that Alternate QDR

Gordon Adams weighs in on the QDR Independent Review Panel, and makes the important observation that their report:

doubled down on the basic weakness of the QDR itself by failing to prioritize missions, examine risk, or set any limits.  Then, rather than justifying the claim that we need to be all things to all people, the panel simply asserts that outside forces strip us of our discretion and require this mission expansion.

Nothing could be further from the truth.  This lack of planning and budgetary discipline ignores the country’s economic problems and flagging political support for high defense budgets.  Now is the time to take a closer look at the military’s missions, make a realistic risk calculation and reshape a smaller and better tailored force.

This is a point worth repeating. Strategy is always about choices: who you choose to fight; who you choose to help/ally with; how you choose to fight; whether you choose to fight; etc. The alternate QDR folks simply pretend that there aren’t any choices. In their formulation, we spend because we must; and if what we spend proves insufficient, then we simply must spend more.

But saying it doesn’t make it so. The fact remains that we have chosen to spend this money, in part because we have chosen an expansive foreign policy. A more restrained foreign policy, one focused on a narrower set of objectives, would allow us to spend less.

Obamacare Complexity vs Free Market Simplicity

Free markets are characterized by voluntary exchange between buyers and sellers. Mapping that relationship is absurdly simply, as this image indicates.

Indeed, the only reason I even bothered to include that image was for purposes of comparison. Here is a new flowchart prepared for the Joint Economic Committee showing the healthcare system under Obamacare.

It’s worth noting, by the way, that the system already was a disaster even before Obamacare was enacted. In the health care sector, free markets are only allowed to operate in very rare cases, such as cosmetic surgery, laser eye surgery, and (for better or worse) abortion. The rest of the sector was heavily distorted by government intervention. Obamacare simply makes a bad situation worse.

Do More, Spend More

Defense News today features a story that unintentionally provides an window into what is wrong with the Washington Foreign Policy Establishment (WFPE)— a group of supposedly smart people that has repeatedly failed to come up with a credible plan that may enable the United States to shed some of the burdens of global governance. Indeed, the key take away from a report to be released tomorrow (“The QDR in Perspective: Meeting America’s National Security Needs in the 21st Century”), is that we shouldn’t try to shed such burdens. This message is particularly curious given that even some long-time proponents of America-As-World-Government are beginning to rethink their positions.

I wasn’t expecting much, but when I perused a draft that was flying around the wires/fibers yesterday (the official release is not until tomorrow), it was even worse than I could have imagined.

“We are concerned,” the authors explain, “by what we see as a growing gap between our interests and our military capability to protect those interests.” Fair enough. But they fail to offer a reasonable alternative that would address this imbalance by boosting the military capability of other countries, and thereby relieve the burdens that have fallen disproportionately on the backs of our soldiers, sailors, airmen and Marines. Instead, they call for more ships, more planes, and a larger force across the board, with the costs borne exclusively by U.S. taxpayers.

When the Obama administration released its National Security Strategy, I knocked the president and his senior advisors for failing to come up with a reasonable plan for forcing other countries to take responsibility for their own defense, and redistribute the burdens of policing the global commons among the many beneficiaries of a stable and peaceful international system. I had a similar view of the QDR, which spoke vaguely of sharing burdens and building partner capacity. The Obama team at least deserved credit, however, for recognizing that the United States should not indefinitely underwrite global security; we need other countries to do more.

The alternate QDR doesn’t even get that right. It instead makes a full-throated case for the United States remaining as the world’s policeman/armed social worker, and blithely expects the American people to keep spending more and more on our military.

I could comfort myself that this report will be the last of its type. Going back to the now-infamous Defense Planning Guidance of 1992, which set the course for the post-Cold War military, there has been a general consensus in Washington that the United States is now, and forever shall be, the sole guarantor of world order, the indispensable nation. And, for the most part, the American people have gone along.

Over time, however, the costs and risks of this approach have grown, exacerbated by the weakness of our allies, and by the inability of the Pentagon to control costs. And the benefits are meager. Today, many Americans have begun to ask why, for example, we each (every man, woman and child) spend about $2,700 on our military, when people in other countries spend less than a third as much on theirs. It is not that this level of spending will bankrupt us, per se; the key constraint on U.S. strategy is the willingness of the American people to pay for the defense of others.

Such support was always tenuous. In The Case for Goliath, Michael Mandelbaum famously argued that the United States could sustain its global posture so long as the American people didn’t scrutinize the true object (to be the world’s government) too closely. The title and description of Mandelbaum’s forthcoming book suggests that even he believes that time is running out. Other one-time enthusiasts of American unipolarity are beginning to come around to this point of view. (e.g. here and here)

To stare at the obvious imbalance between our strategic ends and our fiscal means, and to conclude that the only alternative is to dramatically increase the size of the military, the costs of which have already nearly doubled in the past 15 years, belies a fundamental inability to think strategically. The evidence suggests that our hyperactive foreign policy of the post-Cold War years has undermined American security, and ultimately been a big waste of money. There are sound strategic reasons for choosing to do less. Our fiscal problem adds to the urgency of a change in course, and especially for cuts in military spending.

Beyond that, however, our strategy must align to our political culture. To ignore the growing evidence that Americans are demanding that we do less around the world, and conclude instead that Washington must do more, demonstrates a deep disdain for the public that actually pays the bills – and offers up its sons and daughters to build other people’s countries, and fight other people’s wars.

Quiet but Deadly

Yesterday, U.S. Secretary of Education Arne Duncan announced the nineteen finalist states in the federal “Race to the Top.” In his announcement speech, Duncan was unrestrained in the glory he heaped on the $4.35-billion program (and a few others), declaring that ”as we look at the last 18 months, it is absolutely stunning to see how much change has happened at the state and local levels, unleashed in part by these incentive programs.” It was, he said, all part of a “quiet revolution” underway in education.

He was right and wrong.

Concerning the “stunning change” wrought by RTTT, we’ve heard such stratospheric hyperbole before and it is no more warranted today than it was a few months ago. Yes, RTTT has produced a fair number of paper changes, but it has yet to accomplish anything discernible when it comes to actual educational outcomes.

Get back to us in a few years, Mr. Secretary, when maybe you’ll be able to justify your horn-tooting. Maybe…

Where Duncan was right was in pointing out that there has been a quiet revolution underway orchestrated largely by Washington, but not a good one. It is the insidious spread of national standards that are unsupported by research, incompatible with great education, and most certainly federal. But those standards – and the federal tests that will be connected to them – may be laying low no longer. Tomorrow, President Obama is scheduled to give a speech to the National Urban League that will emphasize:

how his signature Race to the Top program and other initiatives are driving education reform across the country and focusing the nation on the goal of preparing students for college and careers. He will highlight the unprecedented support for and adoption of common standards by a majority of states already, and the Administration’s commitment to develop the next generation of high-quality assessments benchmarked to common standards.

With so many states having fallen to national standards, the administration seems to think it’s time to acknowledge the revolution.  Hopefully, it’s not too late for a counterrevolution to succeed.