Archives: 12/2017

Federal Fumbles and Failures

The federal government has suffered from wasteful spending since the beginning. One of the biggest bureaucracies in the 19th century was the Bureau of Indian Affairs (BIA). An official history says, “the Indian Bureau operated under constant and often well-founded criticism of corruption and inefficiency in its handling of the millions of dollars in supplies purchased each year for the reservations.”

Senator James Lankford’s new study on wasteful spending (“Federal Fumbles”) indicates that BIA mismanagement persists, with waste and failure in its housing, education, and health care programs. I uncovered the same problems with the BIA.

“Fumbles” identifies wasteful programs across the government. The government spent $745 million on an Air Force control center that was scrapped, $85,000 for a music conductor’s birthday party, $148,950 for Alabama’s birthday party, $150,382 to document the Domaaki language in Pakistan, $1 billion for a low-value trolley in San Diego, $17 billion on erroneous EITC subsidies, and $1 billion on federal agency advertising.

Spending on such dubious activities represents a small share of the $4 trillion federal budget. But Lankford’s examples illustrate the broader overspending disease that afflicts Congress and the executive branch, which I discuss here, here, and here. Lankford’s projects are not just random failures, but rather stem from structural features of the government that induce overspending.

Senator Lankford will discuss his report at a Cato forum on Capitol Hill tomorrow at noon. Romina Boccia of Heritage, Steve Ellis of TCS, Ryan Bourne of Cato, and I will comment on the report, discuss the budget situation, and examine prospects for spending cuts. Federal spending is not a free lunch, but Cato forums are. All are welcome.

Who Stole What from Whom?

I visited the Patagonia web site looking for some Christmas presents yesterday and learned that “the president stole my land.” How horrible! So I looked into it and discovered that President Trump took federal land that was managed by a particular set of federal agencies under a particular set of restrictions and changed it into federal land managed by the very same federal agencies under a slightly different set of restrictions. Not to jump on Patagonia, whose clothing I’ve always enjoyed, but where’s the theft in that?

Of course, what Trump did was reverse changes by Presidents Clinton and Obama, who first imposed the slightly different set of restrictions in 1996 (Clinton for the Grand Staircase-Escalante) and 2016 (Obama for the Bears Ears). I can say with absolute certainty that, when they made those changes in 1996 and 2016, many people in Utah said, “the president stole our land.”

Supposedly, one issue is vandalism and destruction to Native American antiquities and artifacts. But such vandalism and destruction was equally illegal (under laws that are equally difficult to enforce) under both sets of restrictions, so claims that Trump’s decision opens the areas to more looting or devastation are red herrings.

Government Databases, Enough Already!

A headline today in the Washington Post is “Voter Database Alarms Experts.” The addition of another big government database alarms me as well. The other day I noted the huge vulnerability created by the income tax and resulting IRS data horde. And then there are federal data stockpiles for health care, security, and many other things.

Now a presidential commission apparently wants to create another juicy target for hackers.

From the Washington Post story:

More than a half-dozen technology experts and former national security officials filed an amicus brief Tuesday urging a federal court to halt the collection of voter information for a planned government database.

Former national intelligence director James R. Clapper Jr., one of the co-signatories of the brief, warned that a White House plan to create a centralized database containing sensitive information on millions of American voters will become an attractive target for nation states and criminal hackers.

… the brief focuses on the security implications of aggregating and housing sensitive information, such as names, addresses, party affiliation and partial social security numbers, in one central location, without adequate security and privacy safeguards. “A large database aggregating [personally identifiable information] of millions of American voters in one place, as the Commission has compiled and continues to compile, would constitute a treasure trove for malicious actors,” the signatories wrote.

The brief states that the commission does not appear to have established rules or procedures defining who gets access to the database or how it should be actively protected.

… Clapper and his co-signatories also said that the database will be situated on a re-purposed White House system, and not within the Department of Defense, making the information even more vulnerable to theft. “Aggregating a comprehensive and official set of such data onto one high-profile, widely publicized server maintained by the White House may reduce the technical and practical barriers to a foreign adversary acquiring such information and making use of it without detection,” the brief said.

More Information Won’t Resolve Management Problems at Border Patrol Checkpoints

A new Government Accountability Office (GAO) report claims that, among other issues, the Border Patrol is not efficiently deploying agents to maximize the interdiction of drugs and illegal immigrants at interior checkpoints. I wrote about this here. These checkpoints are typically 25 to 100 miles inside of the United States and are part of a “defense in depth” strategy that is intended to deter illegal behavior along the border. Border Patrol is making suboptimal choices with scarce resources when it comes to enforcing laws along the border. A theme throughout the GAO report is that Border Patrol does not have enough information to efficiently manage checkpoints. Contrary to the GAO’s findings, poor institutional incentives better explain Border Patrol inefficiencies, while a lack information is a result of those incentives. More information and metrics can actually worsen Border Patrol efficiency.

Inefficient Border Patrol Deployments

Border Patrol enforces laws in a large area along the border with Mexico. They divide the border into nine geographic sectors. They further divide each sector into stations that are further subdivided into zones, some of which are “border zones” that are actually along the Mexican border while the remainder are “interior zones” that are not along the border. The GAO reports that this organization allows officials on the zone level to deploy agents in response to changing border conditions and intelligence. 

The GAO states that Headquarters deploys Border Patrol agents to border sectors based on threats, intelligence, and the flow of illegal activity. The heads of each sector then allocate agents to specific stations and checkpoints based on the above factors as well as local ones such as geography, climate, and the proximity of private property. The heads of those stations and checkpoints then assign specific shifts to each agent. The time it takes for a Border Patrol agent to respond to reported activity, their proximity to urban areas where illegal immigrants can easily blend in, and road access all factor into these deployment decisions. 

Justice Kennedy Will Be Top Chef in Masterpiece Cakeshop Case

After this morning’s Supreme Court argument in the Colorado wedding-cake case, the only thing that safe to predict about this case is that it’ll end up 5-4. It’s perhaps unavoidable that a case so politically fraught would break down on conventional ideological lines, with the four “conservatives” (presumably including the silent Justice Clarence Thomas) siding with the baker who didn’t want to create a custom cake for a same-sex wedding, the four “liberals” siding with the couple that wants to use the state’s anti-discrimination law to compel him to do so, and Justice Anthony Kennedy somewhere in the middle. But it’s disappointing – and it’s especially disconcerting that Justice Sonia Sotomayor kept comparing this case to Piggie Park, Katzenbach v. McClung, and other cases from the Jim Crow Era when African Americans were denied service at restaurants altogether.

It’s telling that none of the wedding-vendor cases we’ve seen in the courts (or in the news) the last few years have involved any business that refuses to serve gay people altogether. Jack Phillips certainly has – and offered to sell Charlie Craig and David Mullins anything on display in his store – as has Barronelle Stutzman, the Washington florist whose fate likely depends on the outcome of Masterpiece Cakeshop v. Colorado Civil Rights Commission. We simply don’t have situations like we did in the 1960s when businesses claimed both a religious and expressive right not to accept racial minorities as customers.

If some business, wedding-related or otherwise, didn’t want to serve gay people, that would be an easy case under Supreme Court precedent (leaving the question of the common-law freedom of association to one side). Instead, it’s quite clear to me that not wanting to convey a message of affirmation for a particular event is different from refusing to serve people based on their identity – and also that Jack Phillips’s gorgeous sculptures are just as protected by the First Amendment when made with fondant as they would if made with plaster.

Indeed, unless a “BBQ artist” is asked to concoct some sort of meat-statue with his tender-smoked goodness, there’s no parallel here. That’s why we wrote in our brief that “wedding (and other) vendors who produce and sell expressive works must be free to accept or reject particular jobs, [but] this right does not apply to those who do not engage in protected speech.” “Creating expressive [products] is constitutionally different than nonexpressive activity like delivering food, renting out ballrooms, or driving limousines.”

But that position may not get five votes; Justice Kennedy seemed to focus on the religious animus at play, as well as the uneven way in which the Colorado Civil Rights Commission has applied its law. Indeed, in a line of questioning that has provoked the most pessimism from the pro-force forces, he highlighted that “tolerance is essential in a free society.” In an echo of his opinion in Obergefell, the case that two years ago established same-sex couples’ right to marry, Kennedy said, “It seems to me that the state in its position here has been neither tolerant nor respectful.”

Still, it’s hard to see the grand champion of free speech forcing a baker (or anyone) to express a message he disagrees with, regardless of the implications for religious freedom. As he wrote in Obergefell, “The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons.” It just shouldn’t matter whether an artistic professional declines a expressive commission for reasons that are religious, secular, or “good” or “bad” – or none at all.

There are many ways the Supreme Court could slice this case, with many dividing lines that are anything but half-baked. But, to carry over a theme from yesterday’s case, I wouldn’t bet on any particular outcome.

You can read the argument transcript here and, for an audio-visual version of the same sort of debate, see video of my debate at Cato yesterday.

How Black Markets Saved Spanish Cheesemaking (Plus, a Cookie Sequel)

Spain is now known to food lovers as one of the great cheese producers of the world, but it wasn’t always so. At one of my favorite websites, Atlas Obscura, Jackie Bryant tells the story of how “one of Europe’s oldest and most varied artisanal cheesemaking cultures… was once entirely illegal. And its survival can be largely attributed to a black market of underground cheese.”

The villain in the piece is dictator Francisco Franco, who ruled from 1939 until his death in 1975, his policies on this subject lingering on for some years thereafter. With a taste for centralized command, Franco wanted to impose mass production and its efficiencies of scale on the dairy sector: 

As part of this policy, quotas were enacted that outlawed milk production under 10,000 liters a day. This made small dairies and cheesemaking productions… illegal. To comply with the law, they had to sell their milk to larger companies.

Enric Canut, a Barcelona-born cheesemaker, agricultural engineer, and dairy consultant, recalls a catalogue of Spanish cheeses compiled by the government in 1964. “Five years later,” he says, “most of those same cheeses were illegal!”

So traditional cheesemaking went underground. Especially in independent-minded rural areas like Galicia, most farmers quietly defied the government. They would report milk as having been personally consumed by the farm family itself, even if that meant by the hundreds of gallons a week. And they would meet in covert open-air markets – at times like 5 in the morning – to sell their wares beyond the view of inspectors. 

Canut later reported to the government that at least 25% of daily milk production in Spain went towards making illegal cheese. It was a remarkable refutation of the government’s policy. Franco had imagined large, industrial operations. Instead Spaniards enthusiastically supported small, black market cheesemakers who, as Canut remembers from visits throughout Spain in the 1970s, sometimes kept their cheese in actual caves….

Franco’s policies were slowly phased out, and, in 1985, dairies of all sizes became legal. Canut estimates that in a decade, Spain went from having almost no small dairies to having nearly 1,000—a combination of upstarts and illicit dairies that had been producing all along.

Fom there, another 20 years brings us to the current runaway success story of specialty Spanish cheeses, which figure on the menu at many Michelin-starred restaurants. Read the whole piece here.

P.S. Two weeks ago in this space I quoted an Atlas Obscura report on how here in the U.S. the FDA’s trans fat ban was making life hard for the little business that bakes Baltimore’s fudge-draped Berger cookie. Shortly after that the Baltimore Sun in its own follow-up report revealed a couple of further twists: while the company’s frosting supplier had managed to solve its trans fat problem, it did so in a way that exposed the cookie maker to a new regulatory trip-up. I explain in this Overlawyered post.   

The Malady of Excessive Interventionism

There is a lot that’s wrong with U.S. foreign policy right now, but a broader look at U.S. grand strategy in the post-Cold War era reveals just how broken things have been across administrations of both parties.

The post-Cold War era has seen a continuation of a long global trend toward greater peace and stability, lower rates of conflict, and zero great power wars. More peace and diminishing threats have merely enhanced the remarkable security already enjoyed by the United States thanks to its geographic isolation, weak neighbors, unparalleled economic and military power, and its nuclear deterrent.

But America doesn’t act as if it is safe. Instead, we have a hyper-interventionist foreign policy. Over the last century, according to the Rand Corporation, “there was only one brief period – the four years immediately after U.S. withdrawal from Vietnam – during which the United States did not engage in any interventions abroad.” Indeed, “the number and scale of U.S. military interventions rose rapidly in the aftermath of the Cold War, just as [rates of global] conflict began to subside.”

According to data from the Congressional Research Service, the United States has engaged in more military interventions in the past 28 years than it had in the previous 190 years of its existence.* About 46 percent of Americans have lived the majority of their lives with the United States at war. Twenty-one percent have lived their entire lives in a state of war.

This suggests a truly perverse defect in the way we are carrying out foreign policy. In an era of unprecedented peace and stability, which should permit a less activist foreign policy, we are finding reasons to intervene militarily at an extraordinary pace, making the past three decades a significant outlier in U.S. history.

America’s role in the world underwent a massive expansion following WWII and again at the end of the Cold War. Washington adopted policies and built bureaucracies that incentivized interventionism. As Joseph Schumpeter once put it in an essay on imperialism, “Created by the wars that required it, the machine now created the wars it required.”

In some ways, Americans have been insulated from the worst effects of this aberrant post-Cold War foreign policy (the costs have been borne more acutely by certain foreign populations on the receiving end of it). However, there have been costs here at home. The United States has spent almost $15 trillion on its military since 1990, an enormous price tag that far exceeds what any other country has spent. This constant state of war also tends to undermine liberal values at home by eroding constitutional checks and balances on war powers, incentivizing excessive government secrecy, and infringing on civil liberties in the name of security. In the oft-cited words of James Madison, “No nation could preserve its freedom in the midst of continual warfare.”

As predicted, Donald Trump has maintained and in some ways expanded America’s militaristic and interventionist role in the world. And Trump’s rise is arguably another indication of how democratic norms can erode in the midst of continual warfare. As with most things, however, America’s unusual post-Cold War foreign policy and Trump’s convention-violating brashness has in many ways become normalized.

If we are ever to break out of this apathy and return once again to a realistic and prudent foreign policy commensurate with the low-threat environment we currently inhabit, we will have to reckon with the steep costs of this expansive grand strategy and wrangle the self-sustaining national security bureaucracy into the austerity it desperately needs.