Archives: 06/2013

Narrow Victory for Judicial Review, Punt on Racial Preferences

The Supreme Court, by a 7-1 majority, correctly slapped down the lower court for deferring to the University of Texas regarding the use of race in admissions. It punted, however, on the larger question of whether that use of race is constitutional, instead instructing the Fifth Circuit to reconsider the issue under a less deferential standard of review, what lawyers call “strict scrutiny.”

While it’s gratifying that the Court recognized that the judicial branch must exercise independent judgment on constitutional questions, it’s unfortunate that it even gave UT-Austin a chance to further its claim. As Justice Thomas wrote in his concurrence, the use of racial classifications in university admissions is abhorrent to the idea of equal protection of the laws.

In short, this is a narrow victory for judicial engagement and subjecting government action to judicial review, but the Court avoided an opportunity to advance liberty without regard to race.

Update: Police Turn Water Cannons on Taksim Protesters

Looks like I spoke too soon: the six days of relative quiet in Taksim were broken today, Saturday, as Turkish riot police turned water cannons on thousands of protesters. Police used water cannons and teargas to break up similar protests in Ankara. Prime Minister Recep Tayyip Erdogan remains defiant, blaming foreigners and the “interest rate lobby” for stirring up trouble, and undermining Turkey’s economy. Such lines appeal to Erdogan and the AKP’s base, but is likely to only anger the protesters even more.

Looks like standing man/woman won’t be enough to convince Erdogan to moderate his tone. Concessions to his opponents seem even less likely. It could be a long, hot summer in Turkey.

What Is Happening in Turkey?

Istanbul, Turkey – The world’s attention turned to Brazil and the financial markets as things returned to normal here in Turkey. I spent the last two days in this ancient city, and there were very few signs (even in Gezi Park and Taksim Square) that anything was amiss. Clusters of police officers found shelter from the sun in Taksim, but there was no evidence that they were spoiling for a fight. The occasional “standing man” (or standing person, as we saw a few women as well) could be seen scattered around the city. Otherwise, little is visible.

But that doesn’t mean that nothing is happening. It took me nearly a week to figure it out, but I’m reasonably confident about the basic narrative: a small group of activists objected to the planned construction of an Ottoman-style barracks at Gezi Park, a small patch of trees near Taksim Square. Trees are a useful thing in a city where the summer days are hot, something that I now appreciate first hand. And Gezi is a bigger than I expected. It looks like a nice place to relax or picnic.

When police disrupted a peaceful protest with what many saw as excessive force, others rallied to the protesters’ cause, assembling in nearby Taksim. But within a short time, other opposition groups seized upon the protest to push their pet projects, most of which revolved around Prime Minister Recep Tayyip Erdogan his ruling Justice and Development Party (AKP). When a few of those late-arrivals (and I have not heard anyone suggest that the original protesters were among this group) resorted to violence, burning cars and vandalizing businesses, they lost support of some who might otherwise have been sympathetic to their cause. This is not to excuse the excessive police response, but the message I heard repeatedly was that the perception of a break down of civil order simply could not be tolerated. This is not an idle concern in a country with a history of military coups supplanting civilian authority.

On the other hand, fears of a return to military rule—a Kemalist revival, as it were—seem overdone. A few look back fondly at that earlier period, albeit through rose-colored glasses, but most of the protesters and their supporters are looking forward, not backward. AKP supporters are a little too quick to invoke the Kemalism bogeyman, the one thing that united classical liberals and religious people behind the AKP in the first place. The AKP also likes to blame foreigners, including the foreign press, for throwing gas on the fire. Some allege that foreigners must have started it. By dismissing the liberals’ legitimate concerns about the state of Turkey’s democracy, Erdogan risks losing them completely.

Cato Comments on TSA Body Scanners

In 2007, the president and CEO of the RAND Corporation, James Thomson, wrote up his impressions of the management at the Department of Homeland Security. “DHS leaders … ‘manage by inbox,’ with the dominant mode of DHS behavior being crisis management,” he wrote. “DHS implements most of its programs with little or no evaluation of their performance.”

If you want proof, look no further than the nation’s airports. Across the United States, the Transportation Security Administration harries American travelers daily, giving them a Hobson’s choice between standing, arms raised, before a nude body scanner or undergoing a prison-style pat-down. It doesn’t have to be this way.

Nearly two years ago, the U.S. Court of Appeals for the D.C. Circuit ordered TSA to do a notice-and-comment rulemaking on its nude body scanning policy. Few rules “impose [as] directly and significantly upon so many members of the public” as the use of body scanning machines, the court said. Its ruling required the agency to publish its policy, take comments from the public, and consider them in formalizing its rules.

The last day to comment on the proposed rules is Monday, June 24th. You can submit your comments until then.

In our comment, Cato senior fellow John Mueller, Mark G. Stewart from the University of Newcastle in Australia, and I take the TSA to task a number of ways. The TSA fails to account for privacy in its proposed policy, even though the lawsuit that required the rulemaking was based on its privacy consequences.

The policy proposal that TSA issued is hopelessly vague. In fact, the court decision requiring the TSA to put its policies on record is more informative about what the rights of travelers and responsibilities of the TSA are.

Instead of placing its risk management work in the docket, TSA claims that its “risk-reduction analysis” is classified. There is almost no basis for treating such work as secret. Indeed, Mueller and Stewart have done a risk assessment of nude body scanners, published it in an article and their book, and spoken about it at public conferences. Their analysis has shown that the nude body scanning policy does not provide cost-effective security. Quite simply, spending money on nude body scanning buys a tiny margin of security at a price that is too dear. If you add non-monetary costs such as privacy and liberty, as well as opportunity costs such as time wasted due to body scanning, the cost-ineffectiveness of body scanners becomes all the more clear.

Travelers wary of TSA mistreatment choose driving over flying for many short or medium-length journeys. Given the far greater danger of driving, this means more injuries and as many as 500 more Americans killed per year on the roads. Outside of war zones, TSA policies visit more death on Americans than Islamist extremist terrorism has worldwide since 9/11.

The National Research Council found in 2010 that the risk models the Department of Homeland Security uses for natural hazards are “near state of the art” and “are based on extensive data, have been validated empirically, and appear well suited to near-term decision needs.” This is not the case with airline security. In fact, the TSA will accept risks of death that are higher than terrorism in order to maintain nude body scanning policies. The original body scanners, which applied x-ray technology, posed a fatal cancer risk per scan of about one in 60 million. Asked about this on the PBS NewsHour, TSA head John Pistole said this risk was “well, well within all the safety standards that have been set.” The chance of an individual airline passenger being killed by terrorism is much lower: one in 90 million.

TSA’s nude body scanning policies probably cause more deaths than they prevent. For this reason, we recommend in our comment that the TSA suspend the current policies, commence a new rulemaking, and implement a rational policy resulting from an examination of all issues on the public record. After comments close, TSA will issue a final regulation on a schedule it determines, after which the regulation can be challenged in court, and very likely it will.

American Jurisprudence as Sausage-Making: Who Interprets the Constitution?

The Supreme Court is finishing up its latest term, saving its most controversial decisions for last. Americans venerate the Constitution, but judges determine its meaning.

Unfortunately, the result of the judicial process vindicates German Chancellor Otto von Bismarck, who famously said that no one should see his sausages or his laws being made. As I point out in my latest Forbes online column, much of the Constitution is treated like an antique wall decoration: although the federal government is supposed to have only limited, enumerated powers, today it pretty much does whatever it wants.

Unfortunately, there may be no way to avoid judicial rulemaking. Louis Fisher of the Library of Congress argued: “Being ‘ultimate interpreter,’ however, is not the same as being exclusive interpreter.” 

It seems obvious that if you take an oath to support the Constitution, you shouldn’t act in ways that violate the law. Former congressman and judge Abner Mikva argued that a failure by Congress to consider constitutionality “is both an abdication of its role as a constitutional guardian and an abnegation of its duty of responsible lawmaker.”

Still, the judiciary long has had the final say. But that actually is supposed to limit government and protect liberty. As I wrote on Forbes online:

The final say logically goes to the judiciary, since the legislative and executive branches pass and approve/execute laws, respectively, making them the institutions in most need of constraint. Alexander Hamilton argued in Federalist 78 that limitations on government power “can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.”

In this way, the judiciary was supposed to protect individual liberty. In introducing the Bill of Rights, James Madison told Congress: “If they are incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the Legislature or Executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights.” (Tragically, this is no longer the case.)

Unfortunately, too many judges no longer really “interpret” the Constitution. That is why Madison’s “few and defined” powers for the national government have become “everything and unlimited. Basically, legislative and executive branch officials act however they like, subject only to judges, who decide however they like. It is government by zeitgeist—if it feels good, do it.

That means the rest of us need to work extra hard to “defend and support” the Constitution. It ain’t much of a bulwark for liberty these days, but it really is about all we have.

Separate Schooling Part of Peace, Not Problem?

Peace DovePresident Obama’s speech in Northern Ireland a few days ago has generated some unexpected controversy. Unfortunately, most of it seems to be along the lines of “Obama attacked the Catholic Church again” because he critiqued religiously separate, Northern-Irish schooling. And Obama certainly was on shaky ground blaming segregated schooling for exacerbating social divisions, but not because he was attacking the Catholic Church. No, his error is that educational freedom may be crucial to peace, not anathema to it.

From what he said, it certainly doesn’t seem that Mr. Obama was trying to single out Catholic schools as a problem. He clearly stated that the presence of both Catholic and Protestant schools was what troubled him: “If towns remain divided—if Catholics have their schools and buildings, and Protestants have theirs—if we can’t see ourselves in one another, if fear and resentment are allowed to harden, that encourages division. It discourages cooperation.” The president’s point was that Protestants and Catholics should go to school together to break down barriers, a seemingly reasonable belief that has driven much of school policy in this country. If we put diverse people together, the thinking goes, they will learn to get along.

But neither deeper logic nor the historical evidence supports that idea particularly well. We absolutely had to end legally mandated segregation, but efforts to force integration often resulted not just in maintained division, but hotter conflict. Why? Because people don’t just check their differing values or identities at the school-room—or school-board—door, and having to support one system of schools forces people to fight over whose values and identities will be taught.

Look at our own religious history. For over a century many of our public schools were de facto Protestant institutions, reading Protestant versions of the Bible and teaching generally Protestant religion. Efforts to make the schools accommodate both Protestants and Catholics often failed—and in Philadelphia led to days of bloodshed—ultimately resulting in the founding of a massive Catholic school system, which by 1965 enrolled 12 percent of all school-aged children.

Our more recent experience with forced integration has been based on race, as we’ve tried to overcome our long and shameful history of legally mandated racial segregation. Brown v. Board of Education, which outlawed forced segregation, was a necessary ruling, and one that has had very powerful benefits. But subsequent federal court rulings mandating physical integration ignited many open, charged conflicts, and quite likely made race relations worse than they’d have been had people been able to freely choose whether to go to school together. It takes time to overcome centuries of division, suspicion, and alienation, and imposing physical togetherness often seemed to breed resentment and even greater hostility. That may very well be why, today, surveys indicate that while most people support integration in the abstract, they widely dislike busing or other forced integration measures.

The GOP, the Farm Bill, and Cognitive Dissonance

It’s a good thing that the farm bill failed to pass the House, but it is disturbing that about three-quarters of Republicans voted in favor of this massive spending bill. The House bill would have spent 47 percent more over 10 years than the 2008 farm bill ($940 billion vs. $640 billion). Most of the spending is for food stamps, so GOP farm bill supporters would have essentially ratified the recent huge spending increases on this welfare program.

I watched some of the farm bill action on the House floor, and it was sad to see so many supposed fiscal conservatives speaking in favor of it. Looking on the official websites of these farm subsidy supporters, they all claim to be deeply worried about overspending and deficits. The cognitive dissonance must be jarring to them.

Here are position statements of members I noticed on C-SPAN, who were speaking in support of the nearly $1 trillion farm bill:

Rep. Mike Conaway: “Our nation is in a budgetary crisis. Last year, the federal government borrowed about 40 percent of all the money it spent. And today, our national debt stands at more than $16 trillion, with more than $5 trillion added in the past four years. As a CPA and fiscal conservative, I am committed to working with my colleagues to cut spending and put our fiscal house in order. Congress does not have a blank check; it is vitally important that we balance the federal budget.”

Rep. Austin Scott: “Washington continues to spend at unsustainable levels … We owe it to our children and grandchildren to make the tough choices and devise a long-term solution that gets our economy back on track and reduces our deficits.”

Rep. Rodney Davis: “Today, our debt is growing faster than our economy and Washington’s promises are growing faster than its ability to pay for them. Regardless of political party, this is completely irresponsible. Our nation is facing the greatest debt in its history–a debt that we will pass along to our children and grandchildren if not addressed. This is a crisis that we cannot ignore any longer. It is a crisis that will require us to look at all areas of our government, defense and non-defense, to get our spending under control.”

Rep. Steve King: “We must also balance the federal budget … and I plan on fighting every day here in Congress to reduce federal spending and get our nation’s fiscal house in order.”

Rep. Rick Crawford: “Out-of-control government spending is a byproduct of a broken Washington. For far too long, Republicans and Democrats alike have operated under the false assumption that they can spend their way into prosperity… I was elected to office to end Congress’s reckless spending spree and chart our country on a better path. Let me be clear: Congress has a spending problem, not a taxing problem. We cannot continue to finance these bad spending habits by borrowing from foreign countries like China, and sticking our children and grandchildren with the bill. We cannot continue to swipe the nation’s credit card and live beyond our means… As long as I am a Member of Congress, I will remain committed to reining in government spending, balancing the budget, and returning to our nation’s founding principles of limited government.”

These are all admirable sentiments, but these congressmen are ignoring their own promises and proclaimed principles in their support of massive farm and food subsidies. They all voted for a subsidy bill that was 47 percent larger than the one that even profligate President George W. Bush vetoed because it “would needlessly expand the size and scope of government.” 

More on the farm bill: