Archives: 12/2011

Debate Needed on Nuclear Weapons Spending

Nuclear weapons have played a major role in U.S. force planning for many decades. But we have never had a thorough accounting of the total cost of these weapons, and we still don’t. (The best to date is probably this study by Stephen I. Schwartz and Deepti Choubey, but they don’t claim to capture every nickel spent on nuclear weapons.)

The Washington Post’s Glenn Kessler published a fact checker article earlier this week that challenged the claim that we would spend $700 billion on nuclear weapons over the next decade. Since then, other organizations have come forth to decry the lack of transparency within the nuclear weapons budget, and call for the government to do a much better job of documenting all of the costs associated with our many nuclear weapons programs. This would include an understanding of the full life-cycle costs for fissile material, warheads, and delivery vehicles, from design and development, to production, to retirement and waste removal and abatement. As with the rest of the Pentagon’s budget, which has never been subject to a complete audit of its assets and liabilities, the nuclear weapons portion (much of which resides in the Department of Energy) remains shrouded in secrecy.

I hope that the latest dust-up over what we are actually spending creates additional pressure on the bureaucracy to open up its books.

This an excerpted version of a longer post from “The Skeptics” at the National Interest.

Will Obama’s Libya ‘Victory’ Aid Re-Election Bid?

It is well established that presidents do not gain much of anything when they launch unsuccessful military ventures. However, they generally don’t gain much from successful ones either. The public does not seem to be interested in rewarding—or even remembering—foreign policy success.

The data are now in on the most recent such military venture: the expedition in Libya. The United States and its NATO allies materially supported popular rebels in their ultimately successful efforts to overthrow the decidedly unpopular regime of Muammar Qaddafi, efforts that resulted in the terminal demise of Qaddafi, a certifiable devil du jour in the American mind for decades. And all this at no cost in American lives.

After the rebel success and the death of the dictator in November, CBS News conducted a poll and asked a fairly mild question about the mission. It revealed that the public was quite capable of containing its enthusiasm for the venture, no matter how successful it may seem to have been:

Although it seems unlikely the venture will hurt President Obama’s reelection prospects, it seems equally unlikely it will furnish him with any real bragging rights.

The same thing happened in 1999 during Bill Clinton’s war over Kosovo, a venture that seemed considerably more risky and that inspired much more attention. As the bombs were being dropped there in support of the persecuted Albanian side, quite a few press accounts argued that the presidential ambitions and political future of Clinton’s vice president, Al Gore, hung in the balance. From the standpoint of public opinion, the Kosovo venture seems to have been a success, not the least because no American lives were lost. But when Gore launched his campaign for the presidency a few months later, he scarcely thought it important or memorable enough to bring up.

And of course there is the legendary inability of George H. W. Bush to garner much lasting electoral advantage from the Gulf War of 1991. Although the success in that huge and dramatic victory caused even his ratings on the handling of the economy to rise notably, this effect was reversed within days in the polls. His slide continued into electoral defeat in the next year.

Lesser accomplishments seem to have been at least as unrewarding. Nobody gave much credit to Bush for his earlier successful intervention in Panama, to Dwight Eisenhower for a successful venture into Lebanon in 1958, to Lyndon Johnson for success in the Dominican Republic in 1965, to Jimmy Carter for husbanding an important Middle East treaty in 1979, to Ronald Reagan for a successful invasion of Grenada in 1983 or to Bill Clinton for sending troops to help resolve the Bosnia problem in 1995. Although it is often said that the successful Falklands War of 1982 helped British prime minister Margaret Thatcher in the elections of 1983, any favorable effect is confounded by the fact that the economy was improving impressively at the same time.

Even Harry Truman, who presided over the massive triumph in World War II, saw his approval plummet to impressive lows within months after the war because of domestic concerns.

And surely the ultimate case is that of Britain’s Winston Churchill. After brilliantly holding the country together during that war—at times, it seemed that the only thing the country had going for it was his rhetoric—he was summarily voted out of office a few weeks after its end. Or, as he put it, “At the outset of this mighty battle, I acquired the chief power in the State, which henceforth I wielded in ever-growing measure for the five years and three months of world war, at the end of which time, all our enemies having surrendered unconditionally or being about to do so, I was immediately dismissed by the British electorate from all further conduct of their affairs.”

In his perhaps-ironically titled book Triumph and Tragedy, Churchill recalls that, when the news about his electoral defeat arrived, his wife suggested, “It may well be a blessing in disguise.” Churchill replied, “At the moment it seems quite effectively disguised.” Other victors have had reason to express similar sentiments.

Cross-posted from “The Skeptics” at the National Interest.

The Presumption of Liberty?

Check out NPR’s Morning Edition today, at least at 8:00 a.m., and you’ll find the lead item isn’t the impending jobs report, the European economic crisis, or even President Obama’s latest campaign speech. No, it’s “Catholic Groups Fight Contraceptive Rule.” Sex, women, discrimination, religion, and health care: What could be more natural for NPR, more right down its alley? Yet the issues the story raises—not broached in this story, of course—go well beyond those pegs. What we have here, in microcosm, is a conflict with a thousand and one variations in the modern ubiquitous state.

New regulations under ObamaCare, it seems, will require employers, universities, and others who offer health insurance benefits covering prescription drugs to cover prescription contraceptives as well. For many Catholics, of course, that’s a concern. As Catholic University President John Garvey wrote recently in The Washington Post, “if we comply, as the law requires, we will be helping our students do things that we teach them, in our classes and in our sacraments, are sinful—sometimes gravely so.” He and others are asking for a religious liberty exception.

But why stop there? The issue is perfectly generalizable. And it arises in the thousand and one ways it does because our ever-expanding anti-discrimination laws, as they restrict private parties, conflict directly with our liberties—in particular, with our right to associate, or not, with anyone we wish, for any reason, good or bad, or no reason at all.

Currently, the story notes, 28 states require contraceptives to be offered in health plans, eight with no exception for religious organizations. Some have tried to get out from under those laws by self-insuring, but that’s where the federal Pregnancy Discrimination Act of 1978 kicks in. Still, the story adds, an EEOC ruling under that statute binds only if the people being discriminated against take action. Hence the ObamaCare rule, which compels up front.

And what’s the rationale for the anti-discrimination rule? “Prescription contraception is a form of health care that is unique to women,” says the ACLU’s Sarah Lipton-Lubet, “and the consequences of the inability to be able to access contraception, those fall primarily on women.” Women would have no access to contraceptives, we’re invited to believe, if their health insurance plans didn’t pay for them—or access as well to anything else not covered, presumably. That’s how we’ll all end up with “Cadillac plans,” until employers, unable to afford them, will stop providing any health insurance benefits at all—yet then will have to pay the penalty ObamaCare exacts for opting out.

But Ms. Lipton-Lubet’s rationale doesn’t stop there: “What the bishops and their allies are asking for is the ability to impose their religious beliefs on people who don’t share them,” she says. Think about that. It’s the bishops who are forcing their beliefs on others, not the government that is forcing employers to pay for coverage they oppose. That’s what we come to when, as Obama has repeatedly said, “we’re all in this together.” Opting out, cost free, is not an option—it’s discrimination, whether in health care, or housing, or lending, or college admissions, or employment, or any other private endeavor that today is so highly regulated by our anti-discrimination laws. Freedom of association is today the exception, not the rule, with government in charge of dispensing the exceptions.

Should You Need a License to Help Someone Find an Apartment?

Kansas City Premier Apartments v. Missouri Real Estate Commission is quite similar to the occupational licensing case of Locke v. Shore, in which Cato also recently filed a brief, except that the speech-licensing regulation here concerns not artistic expression but rather the dissemination of consumer-demanded commercial information — specifically, rental property listings that are free to the public.

The Missouri Real Estate Commission, acting on a complaint by a licensed realtor, decided that Kansas City Premier Apartments, which provides local rental listings, was acting as an unlicensed real estate broker and was therefore subject to fine and even criminal prosecution. (Before KCPA began operations, it had asked the Commission whether it needed a license and did not receive a clear answer other than that it was a “grey area” of law.)

KCPA challenged the Commission’s decision on First Amendment grounds, but the trial court found it to be constitutional without giving a reason for its conclusion. The Missouri Supreme Court affirmed the trial court after simply presuming the constitutionality of the speech restriction — contrary to the U.S. Supreme Court holding in Bolger v. Youngs Drug Products Corp. that “[t]he party seeking to uphold a restriction on commercial speech carries the burden of justifying it” — and placing the burden of proving unconstitutionality on KCPA.

Cato has now joined the Pacific Legal Foundation on a brief supporting KCPA’s request that the U.S. Supreme Court hear the case. Our brief notes that “this case combines the nationally important commercial speech issue with the equally nationally important question of the extent to which the Constitution tolerates occupational licensing.” We explain the difficulties that the Court’s “commercial speech doctrine” has caused and argue for a movement toward greater protection for collective and commercial speech, and away from a confusing four-part test established in a 1980 case called Central Hudson.

As in Locke, this latest case raises the question of whether occupational licensing schemes that have an effect on speech are constitutional. Also as in Locke, an infinite array of professionals and ordinary people could get caught up in this regulation, including even a friend helping another friend find an apartment.

Beyond the technical legal points, the case implicates broader policy issues such as the right to earn a living and the impact that speech monopolies have on consumers. Indeed, the consumer impact may be even more apparent here than in other occupational licensing cases because so many people struggle to find affordable apartments and other rentals in this economy — not to mention over the course of their lives.

The Supreme Court will decide early in the new year whether to hear Kansas City Premier Apartments v. Missouri Real Estate Commission.

Senate Postal Reform Bill Needs a New Title

The USPS is supposed to operate like a business by relying on the revenues from the sale of postal products to cover costs. Congress makes that harder by imposing various obligations and stifling attempts to reduce costs. Add in a weak economy, the growth in alternative forms of communication, and a predominantly unionized workforce that has secured excessive compensation and privileges and the result is a financial mess.

The Senate will soon consider a postal reform bill that is supposed to save the USPS: “The 21st Century Postal Service Act of 2011.” That’s a mighty peculiar title considering that the legislation would keep the U.S. Postal Service stuck in the 20th century. It’s also an overly-confident title as there’s zero chance that the legislation would enable the USPS to “flourish” into the 21st century as Sen. Joe Lieberman (I-CT) claims.

I’m not going to go through all of the bill’s particulars (interested readers can view the committee’s summary here). The bottom line is that the bill does nothing to alleviate the USPS from the burden of congressional micromanagement. For example, one provision prevents the mere possibility of eliminating Saturday service for two more years. Talk about kicking the can down the road. For those who are perplexed by our enlightened leaders’ inability to reach a deal on deficit reduction, consider what this provision implies about their ability to oversee the government’s mail operation.

In the long term, either the USPS is going to be privatized or it’s going to go back to relying on taxpayer subsidies. Fortunately, a taxpayer bailout is off the table for now. However, taxpayers might not be so lucky the next time Congress steps in to “fix” a mess that is largely of its own doing. In fact, the continuing failure to think outside the box, which the Senate bill is a perfect example of, only increases the likelihood of government mail going on the dole.

See this Cato essay for more the U.S. Postal Service and privatization.

A Weak Defense of an Illegal Fix to an ObamaCare Glitch

In this November 16 op-ed, Jonathan Adler and I explain how the Obama administration is trying to save ObamaCare (“the Affordable Care Act”) by creating tax credits and government outlays that Congress hasn’t authorized.  (The administration describes this “premium assistance” solely as tax credits.)  This week, the administration tried to reassure everybody that no, they’re not doing anything illegal.

Here’s how IRS commissioner Douglas H. Shulman responded to a letter from two dozen members of Congress (emphasis added):

The statute includes language that indicates that individuals are eligible for tax credits whether they are enrolled through a State-based Exchange or a Federally-facilitated Exchange. Additionally, neither the Congressional Budget Office score nor the Joint Committee on Taxation technical explanation of the Affordable Care Act discusses excluding those enrolled through a Federally-facilitated Exchange.

And here is how HHS tried to dismiss the issue (emphasis added):

The proposed regulations issued by the Treasury Department, and the related proposed regulations issued by the Department of Health and Human Services, are clear on this point and supported by the statute. Individuals enrolled in coverage through either a State-based Exchange or a Federally-facilitated Exchange may be eligible for tax credits. …Additionally, neither the Congressional Budget Office score nor the Joint Committee on Taxation technical explanation discussed limiting the credit to those enrolled through a State-based Exchange.

These statements show that the administration’s case is weak, and they know it.

When government agencies say that a statute indicates they are allowed to do X, or that their actions are supported by that statute, it’s a clear sign that the statute does not explicitly authorize them to do what they’re trying to do. If it did, they would say so. (A Treasury Department spokeswoman offers a similarly worded rationale.)

In our op-ed, Adler and I explain why the statutory language to which these agencies refer does not create the sort of ambiguity that might enable the IRS to get away with offering premium assistance in federal Exchanges anyway. (Nor does the fact that the CBO and the JCT misread portions of this 2,000-page law create such ambiguity.) That’s because there is no ambiguity in that language. There is only a desperate search for ambiguity because the law clearly says what supporters don’t want it to say.

Finally, the fact that these two statements are so similar shows that the administration considers this glitch to be a serious problem and wants everyone on the same page.

Washington & Lee University law professor Timothy Jost is an ObamaCare supporter and a leading expert on the law.  He is also too honest for government service, for he has acknowledged that ObamaCare “clearly” does not authorize premium assistance in federal Exchanges, and that it is only “arguabl[e]” that federal courts will let the administration get away with offering it. (Again, in our op-ed, Adler and I explain why that argument falls flat.)

After reading the administration’s statements, Adler writes, ”If that’s all they got, they should be worried.”