Archives: 12/2013

D.C. Court: Smith Is Not Good Law

In debates about the NSA’s mass surveillance of all our phone calling, pro-government lawyers have often tried to play a trump card called Smith v. Maryland. Smith is a 1978 Supreme Court decision as right for our times as laws requiring public buildings to provide spittoons. But lawyering rightly relies heavily on precedent, so there it was, the argument that people don’t have a constitutional interest in data about their phone calling because a suspected burglar and obscene phone-caller didn’t have such an interest back in 1976.

D.C. district court judge Richard Leon ruled today that Smith is not an appropriate precedent for considering the constitutionality of the NSA’s mass surveillance program. “[T]he Smith pen register and the ongoing NSA Bulk Telephony Metadata Program,” he concluded, “have so many significant distinctions between them that I cannot possibly navigate these uncharted Fourth Amendment waters using as my North Star a case that predates the rise of cell phones.”

When phone calling was home- or office-bound and relatively rare, people’s interest in the information about their calling was not as great as it is today. Cell phones now accompany most people everywhere they go every single day. “[T]he ubiquity of phones has dramatically altered the quantity of information that is now available and, more importantly, what that information can tell the Government about people’s lives.” (emphases omitted)

Judge Leon applied the “reasonable expectation of privacy” test in finding that he is likely to determine that the NSA’s data seizures are a Fourth Amendment violation, even though that standard has been thrown into doubt by recent Supreme Court decisions. But what is important is that his decision breaks the circular logic adopted by the panels of judges ratifying mass domestic surveillance under the Foreign Intelligence Surveillance Act. These panels believed they could act in secret because of the premise that Americans don’t have a constitutional interest in data about their calls. Their secret operations barred Americans from contesting that premise. And the band played on. Until someone leaked this mass domestic spying to the public.

Judge Leon’s assessment of the government’s interest is notable. He picked up on the fact that the government’s collection of data about all our calls is simply to make things a little quicker when they want to do an investigation.

“[T]he Government’s interest,” he writes, “is not merely to investigate potential terrorists, but rather, to do so faster than other methods might allow. … Yet … the Government does not cite a single instance in which analysis of the NSA’s bulk metadata collection actually stopped an imminent attack, or otherwise aided the Government in achieving any objective that was time-sensitive in nature.” (emphases omitted)

Databasing of all our calls is a convenience and not a necessity. That stacks up poorly against the privacy costs all Americans suffer by having their phone-calling catalogued in government databases.

There will almost certainly be an appeal, and there will be more cases coming up through the courts that explore the many dimensions of this issue. But now we can tell our lawyer friends who have been a little too slavish to precedent that Smith v. Maryland is not good law.

Obama Playing Politics with Regulation? That’s Old News

In the newspaper business, the most precious space is on the front page, above the fold, of the Sunday edition. In that space yesterday, the Washington Post trumpeted that the Obama White House had ”systematically delayed enacting a series of rules on the environment, worker safety and health care to prevent them from becoming points of contention before the 2012 election.

WaPo reports:

The Obama administration has repeatedly said that any delays until after the election were coincidental and that such decisions were made without regard to politics. But seven current and former administration officials told The Washington Post that the motives behind many of the delays were clearly political, as Obama’s top aides focused on avoiding controversy before his reelection.

The number and scope of delays under Obama went well beyond those of his predecessors, who helped shape rules but did not have the same formalized controls, said current and former officials who spoke on the condition of anonymity because of the sensitivity of the topic.

For many WaPo readers, this revelation may be shocking. For readers of the Cato Institute’s journal Regulation, it’s old news.

Last spring, the American Action Forum’s Sam Batkins and the Bush Institute’s Ike Brannon reported that federal data show the Obama administration’s regulatory activity had slowed in 2012. Their explanation for the “pause”: “presidents up for reelection typically delay controversial regulations that could anger various constituencies.” Because the administration felt confident of President Obama’s reelection, they saw little reason to push through rules in a mad dash of “midnight regulation” and instead kept their activities out of the voters’ sight.

Batkins and Brannon go on to say that now that the 2012 election has safely passed, we should not expect a mad dash of regulation. That’s not good news, however. As they explain, “a reelected president has little compunction to issue regulations quickly—not with four more years of governing in the offing. As a result, no one should interpret the regulatory pause in 2012 as evidence of a new ‘go slow’ approach by the Obama administration.”

“He’s got his explanations for why he’s voted, but I don’t really care.”

Rep. Justin Amash (R-Mich.), a figure well known to Catoites, is among the few members of Congress for whom the description “libertarian” does not seem like a stretch. Chair of the House Liberty Caucus, Rep. Amash is famous not only for his strong stands on behalf of limited government and for leading left-right alliances on such subjects as NSA surveillance but also for explaining publicly the reasons for each vote he takes in the House, which he seeks to derive from the language and principles of the U.S. Constitution.

Inevitably, some Republicans as well as Democrats are not happy with what he’s up to, and financial consultant Brian Ellis has launched a primary challenge against Rep. Amash in his Third Congressional District. Ellis says western Michigan “is not a libertarian district, and I’m willing to stake my campaign on that.” Some GOP businessmen in and around Grand Rapids are backing Ellis’s challenge, though many others side with Amash. 

Now the Weekly Standard is out with a piece by Maria Santos profiling the primary fight, which caught my attention with the following quote from Ellis: 

“He’s got his explanations for why he’s voted, but I don’t really care. I’m a businessman, I look at the bottom line.” He has no use for Amash’s constitutional scruples, remarking, “If something is unconstitutional, we have a court system that looks at that.” 

The first two sentences, at least as I would interpret them, basically amount to: “If you want someone to represent you who votes on principle and can explain his reasons, go ahead and stick with Justin because I don’t intend to decide on votes that way.” But it’s the follow-up that really caught me in mid-breath. As the House Clerk’s site explains, under Article VI of the U.S. Constitution, each member of the U.S. House on assuming office takes an oath pledging to “support and defend the Constitution of the United States,” to “bear true faith and allegiance to the same,” and to “well and faithfully discharge” the office’s duties. There is a structural reason why the Constitutional oath is required of officers in the legislative branch, and not merely of those in the executive and judiciary. It is that lawmakers are just as capable of breaking faith with the Constitution as members of those other branches. The main way they do so is to vote, knowingly or through inadvertence, for bills that overstep its provisions.

In other words, it sounds as if Mr. Ellis has chosen to kick off his campaign by promising to violate his oath of office.

Even More on Ryan-Murray Budget Deal

In the Wall Street Journal, Peggy Noonan calls the Ryan-Murray budget deal a “step in the right direction,” which echoes a claim by Rep. Paul Ryan. She says the deal “goes in the right general direction, not the wrong one.”

But how could a deal composed of spending and revenue increases possibly be the right direction when the government is already far too large? Noonan points to savings from “a little entitlement reform” that will “compound in the outyears.” She seems to be referring to planned health care provider cuts in 2022 and 2023, but those tiny trims are purely smoke and mirrors.

Noonan says “the deal breaks the caps for discretionary spending but fortunately leaves most of the sequester intact.” But that is not true for 2014, which is the only year that matters in a discretionary spending deal since appropriations is an annual process. Indeed, this deal proves that Congress can’t be trusted on caps or other sorts of promises for future discretionary spending restraint.

Before this deal, 2014 discretionary spending was to be sequestered $20 billion and capped at $967 billion. I had thought that GOP leaders would perhaps agree to put aside the $20 billion cut in exchange for some actual entitlement reforms. But the deal hikes 2014 spending to $1.012 trillion, or $45 billion above the current law amount. That’s not “moderate progress” as Noonan says, but a total GOP cave-in.

Noonan calls the deal a “confidence-building measure” that could “encourage both parties toward bigger agreements, such as tax reform.” In fact, approval of this tax-and-spending deal will blow the trust of fiscal conservatives that GOP leaders could negotiate any reasonable deal with Democrats on bigger issues such as tax reform. Rather than build confidence, this deal will undermine the confidence of conservative voters that Republican leaders are on their side. Sadly, this deal shows that today’s GOP leaders would probably be taken to the cleaners by the Democrats on a major tax or entitlement reform deal.

Other observations on this bad deal are here and here.

Obamacare’s Atomistic Individualism

Lots of people are engaging in mockery and schadenfreude over the New York Times report that 

Many in New York’s professional and cultural elite have long supported President Obama’s health care plan. But now, to their surprise, thousands of writers, opera singers, music teachers, photographers, doctors, lawyers and others are learning that their health insurance plans are being canceled and they may have to pay more to get comparable coverage, if they can find it.

It’s a liberals’ nightmare:

It is not lost on many of the professionals that they are exactly the sort of people — liberal, concerned with social justice — who supported the Obama health plan in the first place. Ms. Meinwald, the lawyer, said she was a lifelong Democrat who still supported better health care for all, but had she known what was in store for her, she would have voted for Mitt Romney.

It is an uncomfortable position for many members of the creative classes to be in.

“We are the Obama people,” said Camille Sweeney, a New York writer and member of the Authors Guild. Her insurance is being canceled, and she is dismayed that neither her pediatrician nor her general practitioner appears to be on the exchange plans. What to do has become a hot topic on Facebook and at dinner parties frequented by her fellow writers and artists.

“I’m for it,” she said. “But what is the reality of it?”

But I noticed something that I haven’t seen any comments on: the way the Affordable Care Act is forcing people out of group plans and forcing them to enter the health insurance system as individuals:

They are part of an unusual, informal health insurance system that has developed in New York, in which independent practitioners were able to get lower insurance rates through group plans, typically set up by their professional associations or chambers of commerce. That allowed them to avoid the sky-high rates in New York’s individual insurance market, historically among the most expensive in the country.

But under the Affordable Care Act, they will be treated as individuals, responsible for their own insurance policies. For many of them, that is likely to mean they will no longer have access to a wide network of doctors and a range of plans tailored to their needs. And many of them are finding that if they want to keep their premiums from rising, they will have to accept higher deductible and co-pay costs or inferior coverage.

Libertarian scholars stress the importance of civil society. I wrote about it in Libertarianism: A Primer. David Beito wrote a whole book on the mutual aid associations that brought people together in social groups were replaced by “impersonal bureaucracies controlled by outsiders.” Tocqueville and his modern followers extolled the virtues of “mediating institutions” that stood between the lone individual and the all-powerful state.

Now it seems that Obamacare, perhaps unintentionally, is destroying some of those mutual aid organizations, those mediating institutions, in order to force individuals to deal directly with the state and/or the vast insurance corporations.

Left-liberals often accuse libertarians of favoring “atomistic individualism” – an absurd charge about people who regard cooperation as so essential to human flourishing that we don’t just want to talk about it, we want to create social institutions that make it possible. But now it seems we have another example of a big-government, left-liberal policy that is pushing people away from cooperation and community and toward atomistic individualism.

Climate Change and Disease: USA Today Gets It Wrong

The Current Wisdom is a series of monthly articles in which Patrick J. Michaels and Paul C. “Chip” Knappenberger, from Cato’s Center for the Study of Science, review interesting items on global warming in the scientific literature that may not have received the media attention that they deserved, or have been misinterpreted in the popular press.


It’s  guaranteed: every article which is “part of a year-long series that explores the places and ways in which climate change affects us” will paint a horrific picture, a part of the strange universe of global warming journalism. 

Consider this: global warming has been with us as an issue for a quarter-century.  Everyone knows that it lengthens the beach season, but we have yet to see one article showing nubile females and tanned hunks frolicking on the shore. 


In 25 years of global warming hype, why hasn’t one article noted that it will increase the number of beach days? Where’s the beef?

In a recent USA Today article “Diseases on the move because of climate change,” The Campaign Continues.

It’s biblical. Brain-eating amoebas. Killer ticks. A fungus kills many among us. About the only thing missing from this one is all the deaths that will result from hail the size of canned hams.

It’s mind-boggling. 0.8°C ago, around 1900, life expectancy was one half what it is now. Malaria was endemic. Food and water-borne illnesses were real killers. All have been pretty much vanquished, despite dreaded warming.  Not a mention of this.

Such droning is probably why people tune this stuff out. There’s an epidemic of the real global warming-related malady, apocalypse fatigue, [1]  and still the Society of Environmental[ist] Journalists hasn’t gotten the email.

There’s no need to bring out climate change to explain recent patterns of the diseases that can be thoroughly accounted for by any of a large collection of confounding factors. We meant human-caused climate change as that’s the pernicious kind (it’s too bad we can’t ask our ancestors how much they liked the very natural ice age).

Is This Time Different for Health Expenditure?

In a new working paper, economists Amitabh Chandra (Harvard), Jonathan Holmes (Harvard), and Jonathan Skinner (Dartmouth) (CHS) examine whether the recent slowdown in the growth of U.S. health expenditure reflects the Great Recession or Obamacare, taking issue with both explanations:

[H]ealth expenditure growth in the depths of the recession was nearly identical to growth prior to the recession. Nor can the Affordable Care Act (ACA) … take credit, since the slowdown began prior to its implementation.

Instead, CHS

… identify three primary causes of the slowdown: the rise in high-deductible insurance plans, state-level efforts to control Medicaid costs, and a general slowdown in the diffusion of new technology, particularly in the Medicare population.

As to whether the slowdown will continue, CHS 

are more pessimistic, and not entirely because a similar (and temporary) slowdown occurred in the early 1990s. The primary determinant of long-term growth is the continued development of expensive technology, and there is little evidence of a permanent slowdown in the technology pipeline.

CHS’s bottom line, therefore, is that

over the next two decades … health care costs will grow at GDP plus 1.2 percent; lower than previous estimates but still on track to cause serious fiscal pain for taxpayers and workers who bear the costs of higher premiums.

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