May 2011

May 19, 2011 3:21PM

UPDATE: Liu Cloture Fails

This morning I outlined the stakes of today’s seminal cloture vote on Goodwin’s Liu’s nomination to the Ninth Circuit. Well, now we have a result: cloture failed 52–43, with Senator Ben Nelson (D-NE) joining all voting Republicans except Lisa Murkowski (R-AK) against cloture. Three Republicans plus Max Baucus (D-MT) were absent, while Orrin Hatch (R-UT) voted present because of his previous strong position against filibusters.

This is the first judicial nominee filibustered since the Gang of 14 brokered an agreement on President Bush’s nominees in 2005, forestalling then‐​Senate Majority Leader Bill Frist’s use of the so‐​called nuclear option (changing Senate rules to eliminate the judicial filibuster). That agreement, to the extent it’s even still valid given the changed composition of the Senate (and with five of the 14 Gang members no longer in the Senate), allowed filibusters only in “extraordinary circumstances,” leaving that term undefined.

And so we may have just have witnessed the re‐​ignition of the war over judicial nominees. Stay tuned as to whether today’s vote will come to signify the “Water-Liu”—h/t Walter Olson—for one party or another, or for our judiciary.

May 19, 2011 2:48PM

The Consequences of Our War on Low‐​Skilled Immigrant Labor

[caption align=right]

Credit: Chiapas state government website[/caption]

Authorities in Mexico intercepted two semi-trucks on Tuesday containing more than 500 migrants being smuggled across the border from Guatemala and presumably headed for the United States. An x-ray of one of the trucks that revealed the migrants struck me for its resemblance to those 18th century woodcarvings of slave ships crossing the Atlantic.

That analogy shouldn’t be taken too far, of course. According to the news reports, the migrants voluntarily paid $7,000 each for the chance to be smuggled into the United States. But like the slave ships, the conditions in the trucks were horrific, putting the lives of the men, women and some children in real danger.

People across the spectrum will try to make hay from this, but to me it argues that the status quo is unacceptable. No respectable party is in favor of illegal immigration. The real debate is over how to reduce it and all the underground pathologies that accompany it.

We can continue to ramp up border and interior enforcement, as we have relentlessly for more than a decade, driving low-skilled migrants further underground while driving smuggling fees higher and higher. Or we can expand opportunities for legal entry into the United States, and by doing so shrink the underground network of smuggling and document fraud.

Like the repeal of Prohibition in 1933, real immigration reform would go a long way to eliminating the human bootlegging that was exposed in Mexico this week. A robust temporary worker program would allow foreign-born workers to enter the country in a safe, orderly, and legal way through established ports of entry. It would allow resources now going to smugglers to be collected as fees by our government and otherwise put to work in our economy. It would save the lives of hundreds of people who needlessly die each year trying to re-locate for a better job.

If Congress enacted the kind of immigration reform we have long advocated in my department at Cato, our economy would be stronger and the human smuggling networks a lot less busy.

May 19, 2011 2:33PM

What Did Orwell Say?

Steve Simpson and Paul Sherman of the Institute for Justice have written an excellent short essay about Stephen Colbert’s effort to undermine the Citizens United decision. But the joke is on Colbert:

Campaign‐​finance laws are so complicated that few can navigate them successfully and speak during elections—which is what the First Amendment is supposed to protect. As the Supreme Court noted in Citizens United, federal laws have created “71 distinct entities” that “are subject to different rules for 33 different types of political speech.” The FEC has adopted 568 pages of regulations and thousands of pages of explanations and opinions on what the laws mean. “Legalese” doesn’t begin to describe this mess.

So what is someone who wants to speak during elections to do? If you’re Stephen Colbert, the answer is to instruct high‐​priced attorneys to plead your case with the FEC: Last Friday, he filed a formal request with the FEC for a “media exemption” that would allow him to publicize his Super PAC on air without creating legal headaches for Viacom.

How’s that for a punch line? Rich and successful television personality needs powerful corporate lawyers to convince the FEC to allow him to continue making fun of the Supreme Court. Hilarious.

Of course, there’s nothing new about the argument Mr. Colbert’s lawyers are making to the FEC. Media companies’ exemption from campaign‐​finance laws has existed for decades. That was part of the Supreme Court’s point in Citizens United: Media corporations are allowed to spend lots of money on campaign speech, so why not other corporations?

Because some animals are more equal than other animals, I suppose.

May 19, 2011 11:19AM

Europe Has Done Enough Harm to the IMF

With Dominique Strauss‐​Kahn (DSK to his friends and lovers) having finally resigned as head of the International Monetary Fund, the race has begun among those in Europe who wish to succeed him. First, the real debate should be over how soon can we shut down the IMF, not over who should be reaping the spoils. Its original purpose under Bretton Woods became irrelevant decades ago. And while it found a new role as bailout fund for international banks, this new role is not one we should be supporting.

Given we are probably stuck with the IMF, the question becomes who should run it. Europeans are now arguing that the European sovereign debt crisis displays the need for Europe to remain in control. In fact I believe it demonstrates the opposite: European politicians have time and time again proven they cannot be trusted with a large pot of taxpayer’s money, whether it is the Greek government or the IMF. To put another European in charge is the financial market equivalent of letting the alcoholic guard the liquor cabinet. Any European politician will likely hand out funds without any real strings attached. Just as a European‐​led IMF was all too happy to force restructuring on developing countries (rather than allow Western bondholders to take a loss), real reductions in government spending should be required of any country accepting IMF assistance. Else the losses should be imposed on those who gambled: the bondholders. If we fear such losses will push European banks into failure, then deal with those failures directly, honestly and transparently. Citizens around the world are tired of bank bailouts, backdoor or otherwise. As long as the political elite remained deaf to public objections to the bailouts, we should not entrust these same politicians with the IMF.

May 19, 2011 10:29AM

Thursday Links

By George Scoville
  • “Consistent bets for higher oil prices in futures markets have not been particularly lucrative.”
  • “The vast, swaying bulk of America’s military has absolutely nothing to do with effectively combating terrorism—including the large land armies that we deploy to Muslim countries in efforts to destroy and then reconstitute their states.”
  • “ ‘Poking and prodding’ is what good government does to perfect strangers. And that’s what the Obama administration has been doing, with unusual zeal, for the past 2 1/2 years.”
  • The Cato 2011 State Legislative Guide is designed to help state policymakers free their constituents from the burden of overextended government and addresses unfunded pension liabilities, ballooning Medicaid enrollment, massive budget gaps, failing education systems, and other important issues.
  • The Kentucky v. King decision has delivered a blow to Fourth Amendment protections:

    Read more here.

May 19, 2011 9:05AM

If You Liked Obamacare, You’ll Love Goodwin Liu

Later today the Senate is set for a “cloture” vote — the vote to end debate, for which you need 60 votes — on the nomination of Berkeley law professor Goodwin Liu to the U.S. Court of Appeals for the Ninth Circuit. I’m not going to weigh in here on the issue of whether judicial nominees ought to be filibustered in general — or if the Republicans ought to be the first to foreswear the tactic even without a guarantee that Democrats would do likewise in the future — but if ever there were an “extraordinary circumstance” fitting into the Gang of 14 agreement that broke the judicial logjam under President Bush, this is it.

As I blogged last year, Liu is, without exaggeration, the most radical nominee to any position that President Obama has made. He believes in constitutional positive rights — not that the welfare state and all its accompanying entitlements (and then some) are a good idea, but that they are constitutionally required. That is, someone ought to be able to sue the government (qua the taxpayer) if they don’t have adequate health care, or food, or shelter, or… well, anything Liu envisions is part of his indeterminate Constitution whose evolving norms adapt to the times “in order to sustain its vitality in light of the changing needs, conditions, and understandings of our society.”

As Liu wrote in the Yale Law Journal in 2006

On my account of the Constitution’s citizenship guarantee, federal responsibility logically extends to areas beyond education. Importantly, however, the duty of government cannot be reduced to simply providing the basic necessities of life….. Beyond a minimal safety net, the legislative agenda of equal citizenship should extend to systems of support and opportunity that, like education, provide a foundation for political and economic autonomy and participation. The main pillars of the agenda would include basic employment supports such as expanded health insurance, child care, transportation subsidies, job training, and a robust earned income tax credit.

Moreover, he’s opined that words like “free enterprise,” “private ownership of property,” and “limited government” are “code words for an ideological agenda hostile to environmental, workplace, and consumer protections.” 

As I wrote in an op‐​ed with Evan Turgeon last year:

We don’t expect a president of either party to appoint judges who adhere 100 percent to the Cato line — though that would be nice — so we do not object to every judicial nominee whose philosophy differs from ours.

Goodwin Liu’s nomination, however, is different. By far the most extreme of Obama’s picks to date, Liu would push the Ninth Circuit to redistribute wealth by radically expanding — and constitutionalizing — welfare “rights.”

Now, if all 53 Democratic senators vote for cloture, they will need to add seven Republicans to prevail. So the key to this vote are the 11 GOP senators who voted for cloture earlier this month on controversial Rhode Island district court nominee Jack McConnell: Alexander, Brown, Chambliss, Collins, Graham, Isakson, Kirk, McCain, Murkowski, Snowe, and Thune. This list includes some of the more “squishy” Republicans, to be sure, but there are also some wild cards — and, of course, the stakes with a circuit court nominee are higher than for a district court nominee.

The outcome of the vote is uncertain but one thing I can say for sure is that if Prof. Liu becomes Judge Liu (and later, God forbid, Justice Liu), the Obamacare litigation will seem so quaint: Can Congress force you to buy health insurance? Heck, the Constitution requires you to buy it — for yourself and a lot of others as well!