February 2011

February 23, 2011 2:57PM

Logan vs. Kagan on Military Spending

In January, Robert Kagan of the Brookings Institution wrote an epic‐​length cover story for the Weekly Standard urging that not only should military spending not be cut, but that it should be increased. 

I disagreed, and responded with an article in the April 2011 issue of the American Conservative that is now available online. Here’s the basic gist:

[Kagan’s] argument centers on three claims. First, [he] alleges that America faces a dire threat environment in which a more restrained strategy would only amplify the dangers. Second, he argues that cutting military spending can’t solve our fiscal dilemma. And finally, he asserts that America simply cannot change its grand strategy, for we have always been interventionists.

Each claim is wrong: America could make substantial changes to its grand strategy that would save hundreds of billions of dollars per year without endangering our national security.

Read for yourself and see if you think I moved the ball forward at all. We debate, you decide.

P.S.: I have a polemical side, but the “Beltway brigadier” trope in the subhead was not mine — in case anyone at the, uhh, “National Institute for Civil Discourse” is concerned.

February 23, 2011 7:09AM

The Necessary & Proper Clause Isn’t a Blank Check

Cato legal associate Trevor Burrus and I have an article about to be published in the Syracuse Law Review that grapples with United States v. Comstock, last term’s big Necessary and Proper Clause case that could have big ramifications on the Obamacare litigation (but probably not, we argue). 

Here’s the abstract:

In United States v. Comstock, the Supreme Court upheld § 4248 of the Adam Walsh Act, which allows for the civil commitment of federal prisoners deemed “sexually dangerous” for an indefinite period after they’ve completed their sentences. The case dealt with that most basic of constitutional questions: Where does Congress find its authority to enact a particular law?

Justice Breyer, writing for the majority, found warrant for § 4248 in Congress’s power “to make all Laws which shall be necessary and proper for carrying into Execution” its other powers. But which of Congress’s enumerated powers does § 4248 execute? And is § 4248 necessary and proper for executing that power? Unfortunately, the Court focused mainly on the second question, arguing that Congress has “broad authority” to enact laws to further its enumerated powers. Moreover, the five‐​factor “test” Breyer offered asked not whether § 4248 was necessary and proper for executing an enumerated power, but for “a jumble of unenumerated ‘authorities,’” as Justice Thomas put it in a searching dissent joined by Justice Scalia.

Fortunately, Justice Breyer’s opinion was joined in full by only four other justices — with Justices Kennedy and Alito writing separately to emphasize the strict requirements that federal laws invoking the Necessary and Proper Clause must meet (even if those requirements were satisfied here). These concurrences, along with an impracticable majority opinion and a logically powerful dissent, suggest that Comstock may have limited application beyond the four corners of civil commitment law. Most prominently, Comstock seems to have little effect on the ongoing Obamacare litigation.

Read the whole thing. Also read Ilya Somin’s article on Comstock in last year’s Cato Supreme Court Review.

February 22, 2011 11:37AM

$61 Billion in Cuts in Perspective

Talk of a government shutdown is heating up. The current continuing resolution funding the government is set to expire on March 4th. Last week, House Republicans passed a bill that would fund the remainder of fiscal 2011 at $61 billion below fiscal 2010 levels. Senate Democrats are balking at the $61 billion in cuts and the president has issued a veto threat.

The following chart measures $61 billion in cuts against the president’s fiscal 2011 estimates for total federal spending, the deficit, and interest on the debt:

Media Name: cutsinperspective.jpg

As the chart shows, the proposed cuts amount to less than a third of what taxpayers will pay in interest on the debt alone this year.

The $61 billion in cuts, which are woefully insufficient, would come from a relatively small category of government spending (non‐​defense, discretionary spending). However, that merely indicates the need to tackle defense spending and budget‐​busting “mandatory” programs. Unfortunately, the president’s latest budget proposal punted on these critical areas, and the Republicans have yet to put forth a plan let alone a coherent message.

February 22, 2011 9:33AM

My Favorite Constitutional Right

Both the Washington Post and NPR refer to the Tenth Amendment as a "tea party favorite." I would have thought that tea partiers -- and most of the rest of us -- liked all 10 of the Bill of Rights, and indeed the rest of the Constitution as well. Now, sure, I guess if the ACLU could publish (in the 1970s or 1980s) the poster below, an "illustrated guide to the Bill of Rights" featuring only the First, Fourth, Fifth, Sixth, Eighth amendments (and only parts of those), along with the Fourteenth, Fifteenth, and Nineteenth amendments, which are not part of the Bill of Rights -- well, then, I guess the Tea Party is entitled to have its own favorite parts of the Bill of Rights. But then, it was NPR and the Washington Post, not tea partiers, who suggested that the Tenth Amendment was perhaps uniquely a "tea party favorite." I would urge the ACLU, the Tea Party, and all other Americans who care about freedom to consider the entire Constitution a "favorite." Of course, the Tenth Amendment is pretty crucial, reminding policymakers that the federal government does not have any powers not delegated to it in the Constitution.

February 22, 2011 9:30AM

Two Reasons Governors Should Stop Implementing ObamaCare

The Washington Post reports:

Practically every week, a Republican governor or lawmaker announces a new effort to kill the health‐​care law or undercut its implementation.

Unfortunately, many of those same governors are still implementing the law when they should be outright refusing to do so.

In my Kaiser Health News column today, I offer two reasons why (at least) Republican governors should stop implementing ObamaCare:

Swearing an oath to support the Constitution also obligates governors to use lawful means to prevent its unlawful abuse. Governors who believe ObamaCare to be unconstitutional are as duty‐​bound to stop implementing the law as they are to challenge it in court…

It is the height of fiscal irresponsibility to be making new spending commitments (1) when the federal deficit is $1.5 trillion and state budget deficits are a cumulative $175 billion, (2) when those new commitments create a framework for a massive new entitlement program, and (3) when that new spending comes under the auspices of a law that has been invalidated by one federal court and may be invalidated by the nation’s highest court.

So far, the only governors I’ve seen take a firm stand against implementing the law are Rick Scott (R-FL) and Sean Parnell (R-AK), who respectively govern the fourth‐​largest and the fourth‐​smallest states. (Disclosure: I served on Rick Scott’s transition team.)

February 22, 2011 8:16AM

Spending Restraint Works: Examples from Around the World

America faces a fiscal crisis. The burden of federal spending has doubled during the Bush-Obama years, a $2 trillion increase in just 10 years. But that's just the tip of the proverbial iceberg. Because of demographic changes and poorly designed entitlement programs, the federal budget is going to consume larger and larger shares of America's economic output in coming decades.

For all intents and purposes, the United States appears doomed to become a bankrupt welfare state like Greece.

But we can save ourselves. A previous video showed how both Ronald Reagan and Bill Clinton achieved positive fiscal changes by limiting the growth of federal spending, with particular emphasis on reductions in the burden of domestic spending. This new video from the Center for Freedom and Prosperity provides examples from other nations to show that good fiscal policy is possible if politicians simply limit the growth of government.


Read the rest of this post »
February 22, 2011 7:41AM

Honoring Our Greatest President

A new Gallup Poll shows that Americans are most likely to say that Ronald Reagan was our greatest president. Reagan had many good qualities, but this is not plausible. Following Reagan in the poll was Lincoln, who despite a devastating war and a vast expansion of government, did end slavery and preserve the union. Then come Clinton and Kennedy, about whom one can only bemoan the historical illiteracy of the voters. They were actually the top two picks among Democrats, followed by Obama.

Only in fifth place do we find George Washington, the man who led the revolution that created the United States and then ensured that it became an enduring republic. Washington’s accomplishments are the subject of my weekly column at the Britannica blog:

Had he been a Caesar, a Cromwell, a Napoleon, we know what he would have done. A French officer who wrote a book about the new country of America told us what he in fact did: “This is the seventh year that he has commanded the army and that he has obeyed the Congress; more need not be said.” But one more thing was said: The Commander in Chief traveled to Annapolis, where the Continental Congress was meeting, returned his commission, and said, “Having now finished the work assigned me, I retire from the great theatre of Action; and bidding an Affectionate farewell to this August body under whose orders I have so long acted, I here offer my Commission, and take my leave of all the employments of public life.” And he created a new order for the ages.

It is appropriate that we still celebrate the birth of George Washington — and in fact the actual federal holiday on the third Monday in February is Washington’s Birthday.