Tag: federal government

The Non-Defense of DOMA

The Obama Administration’s decision to stop defending DOMA in the courts has provoked some widespread commentary. Jim Burroway hints that Obama’s strategy here is both deep and cynical. Obama’s locked in a losing fight with Republicans over the budget, because Americans really do want to cut federal spending. This remains true even if, notoriously, nearly the only specific program they want to cut is our negligible foreign aid.

The mood is anti-spending, and it’s just possible that a government shutdown scares Obama even more than it scares the Republicans. The remedy? Change the subject. Make Republicans in Congress defend their stance on gay marriage, which is so not the discussion they’d like to be having.

It could be one of the first instances in which gay marriage counts as a wedge issue against Republicans, rather than for them. Opposing same-sex marriage appeals strongly to a smallish base. To the center, the whole subject is distasteful either way, and they don’t mind if Obama drops it. Finally, more and more people just find the conservatives embarrassing here. Obama sees no need to do their dirty work for them, especially when the work really is that dirty.

Meanwhile, Orin Kerr is worried about executive power:

By taking that position, the Obama Administration has moved the goalposts of the usual role of the Executive branch in defending statutes. Instead of requiring DOJ to defend the constitutionality of all federal statutes if it has a reasonable basis to do so, the new approach invests within DOJ a power to conduct an independent constitutional review of the issues, to decide the main issues in the case — in this case, the degree of scrutiny for gay rights issues — and then, upon deciding the main issue, to decide if there is a reasonable basis for arguing the other side. If you take that view, the Executive Branch essentially has the power to decide what legislation it will defend based on whatever views of the Constitution are popular or associated with that Administration. It changes the role of the Executive branch in defending litigation from the traditional dutiful servant of Congress to major institutional player with a great deal of discretion.

If that approach becomes widely adopted, then it would seem to bring a considerable power shift to the Executive Branch. Here’s what I fear will happen. If Congress passes legislation on a largely party-line vote, the losing side just has to fashion some constitutional theories for why the legislation is unconstitutional and then wait for its side to win the Presidency. As soon as its side wins the Presidency, activists on its side can file constitutional challenges based on the theories; the Executive branch can adopt the theories and conclude that, based on the theories, the legislation is unconstitutional; and then the challenges to the legislation will go undefended. Winning the Presidency will come with a great deal of power to decide what legislation to defend, increasing Executive branch power at the expense of Congress’s power. Again, it will be a power grab disguised as academic constitutional interpretation.

Liberals: If you think declining to defend DOMA is the right decision, how will you feel when a Republican administration declines to defend in a school prayer case? Or an abortion case? Or on Obamacare itself?

There are two very, very distinct issues here. One concerns gays and lesbians. The other concerns the proper relationship among the three branches of the federal government. One is about policy; the other is about procedure. Deciding a procedural question based on what it means for a one-time policy outcome is just bad governance. The questions we should be asking are – How much power would this really give the president? Is this a particularly new power? (Arguably it’s not.) And in any case, are we comfortable with the president having it, even if he or she has radically different views about policy?

When we look at it that way, there’s a near-perfect parallel to the perennial debate over the filibuster. Everyone hates it when they’re in the majority. Everyone loves it when they’re in the minority. Politics really is the mind-killer.

Secretly Happy Colleges Should Mean Overtly Angry Taxpayers

Yesterday, House Republicans introduced their preliminary list of spending cuts, cuts that were, they declared, ”to go deep.” Unfortunately, coming in at just $74 billion, they were about as deep as onion skin. After all, the total federal budget is well over $3 trillion, and the national debt now exceeds $14 trillion

The relatively lilliputian size of the proposed cuts should give any taxpayer major queasiness over Republicans’ desire to truly rein in government. But if that doesn’t scare you, this report from Inside Higher Ed absolutely should:

Shhh. Don’t tell, and they’ll never admit it publicly. But college officials are (very quietly) feeling okay – at least for now – about how Congressional Republicans would treat the programs that matter most to higher education in their first whack at the federal budget.

Why should ivory tower denizens be secretly peppy, and taxpayers openly upset? Because the House GOP pretty much left higher ed funding untouched, despite the fact that the ivory tower is soaking in putrid, taxpayer-funded waste. Quite simply, the federal government pours hundreds of billions of dollars into our ivy-ensconced institutions every year, but what that has largely produced is atrociously low graduation rates; at-best dubious amounts of learning for those who do graduate; ever-fancier facilities; and rampant tuition inflation that renders a higher education no more affordable to students but keeps colleges fat and happy.

I’ve said it before and I will say it again: If federal politicians won’t significantly cut ”education” spending – spending that has done next to nothing to increase actual learning – then they are not serious about reining in the deficit or cutting government down to size. They are still, sadly, much more concerned about appearing to “care” about education than doing what needs to be done.

Is Birthright Citizenship Challenge “Doomed”? Let’s Hope So

Yet another front has opened in the battle over illegal immigration, this one involving birthright citizenship. According to today’s New York Times and other news outlets, Republicans at the state and federal level are gearing up to re-open the question of whether children born in the United States to parents who are here illegally should be granted automatic citizenship under the 14th Amendment to the U.S. Constitution.

James Ho makes a strong case in this morning’s Wall Street Journal that the 14th Amendment as written after the Civil War was intended to include the children of resident aliens whatever their legal status. The former solicitor general of Texas, Ho describes a series of Supreme Court decisions since then that have consistently upheld the principle that birthright citizenship applies to the children of illegal immigrants. He offers this sobering advice to those who want to retest the case in court:

Opponents of birthright citizenship say that they want nothing more than a chance to relitigate the meaning of the 14th Amendment. But if that is so, state legislation is a poor strategy.

Determining U.S. citizenship is the unique province of the federal government. It does not take a constitutional expert to appreciate that we cannot have 50 different state laws governing who is a U.S. citizen. As a result, courts may very well strike down these state laws without even invoking the 14th Amendment. The entire enterprise appears doomed to failure.

At a Cato Hill Briefing event in October, I spelled out additional reasons why the principle of birthright citizenship has served our nation well since the Civil War amendments. Attorney Margaret Stock reviews the legal and constitutional arguments underpinning birthright citizenship, while I examine the practical policy arguments for not tampering with the established interpretation. (My segment starts at the 25:11 mark.)

The Constitutional Vision of The New York Times

The editorialists at the The New York Times are out of sorts this morning over a Tea Party backed constitutional amendment that would give state legislatures the power to veto any federal law or regulation if two-thirds of the legislatures approved. Despite the backing of incoming House majority leader Eric Cantor and legislative leaders in 12 states, the proposal has little chance of succeeding, the Times avers, “but it helps explain further the anger-fueled, myth-based politics of the populist new right.” Indeed, it expresses “with bold simplicity the view of the Tea Party and others that the federal government’s influence is far too broad.”

Well? Isn’t that what the election last month was all about? But right there, for the Times, is the problem: “In past economic crises, populist fervor has been for expanding the power of the national government to address America’s pressing needs. Pleas for making good the nation’s commitment to equality and welfare have been as loud as those for liberty.” With the Tea Party, however, the tables have turned. What most troubles the Times, it seems, are Tea Party signs that say “We Want Less!”

And nowhere is that better captured than when the Times speaks of “the mistaken vision of federalism on which [this amendment] rests. Its foundation is that the United States defined in the Constitution are a set of decentralized sovereignties where personal responsibility, private property and a laissez-faire economy should reign. In this vision, the federal government is an intrusive parent.”

If that vision is “mistaken,” so too, apparently, were the Founders, because it was their vision as well. To be sure, the Constitution they crafted held “competing elements, some constraining the national government, others energizing it,” as the Times writes. And true also, the government they shaped was meant “to promote economic development that would lift the fortunes of the American people” – but mainly by securing the framework for liberty, the rule of law, not by pursuing prosperity through government programs. In particular, the Framers believed in personal, not government, responsibility; private, not collective, property; and a free, not a planned, economy. And they left most power with the states, where it would be exercised responsibly, or not – something to keep in mind as we watch our “failed states” asking Washington (read, the other states) to bail them out.

The Deficit Commission: A Good Try That Falls Short

My colleagues, Dan Mitchell, Jagadeesh Gokhale, Michael Cannon and Chris Edwards have already provided their thoughts on the chairman’s mark released yesterday by the bipartisan deficit reduction commission.  A few additional thoughts:

The commission provides a good-faith look at the magnitude of the problem we face, and the magnitude of cuts necessary to bring spending down to even 21 percent of GDP (and it really should be far lower).  In doing so they show just how unserious Republicans are in proposing a paltry $100 billion in spending cuts.  And the commission makes it clear, unlike Republicans, that both entitlements and defense spending must be on the table.

The commission also starts the debate in a useful direction by implicitly acknowledging that their need to be some limits to government spending—that government cannot consume an ever-increasing proportion of GDP.  (Without a change in policy, the federal government will consume 43 percent of GDP by 2050.)

But ultimately the report falls short because it fails to address the proper role of government.  In fact, it tacitly accepts the idea that government should be doing everything it is doing now.  It even acquiesces to the new health care law.  As a result, it fails to reduce the size of government sufficiently to avoid tax hikes, let alone permit tax cuts in the future.

Moreover, because the commission leaves the basic structure and role of government intact, it raises questions about the future viability of its proposed mix of spending cuts and tax increases.  History demonstrates that it is far too likely that tax hikes will be permanent, while spending cuts will last as long as the next year-end emergency appropriations bill.

As the commission moves toward a final report on December 1, members would be advised not to focus just on the details of these proposals, but to have a serious and deliberative discussion of what the federal government should and should not be doing.

Government Cheese

Self-anointed elites have been relentless in prodding government planners to apply their enlightened solutions for the purported benefit of the ignorant masses. As a result, the federal government has become a Super Nanny monitoring and guiding the intimate activities of the nation’s 300 million inhabitants. However, the government is not altruistic and does not have the solutions for how people should live their lives.

The amalgamation of programs and regulations that constitute the federal government is basically a reflection of the myriad special interests that have won a seat at Uncle Sam’s table. Government consists of fallible men and women who are naturally susceptible to pursuing policies that have less to do with the “general welfare” and more to do with rewarding the privileged birds incessantly chirping in their ears.

One result is that government programs often work at cross purposes. A perfect illustration is the confused U.S. Department of Agriculture, which spends taxpayer money subsidizing fatty foods while at the same time setting nutritional guidelines with the purported aim of getting Americans to eat healthier.

The New York Times explains:

Domino’s Pizza was hurting early last year. Domestic sales had fallen, and a survey of big pizza chain customers left the company tied for the worst tasting pies.

Then help arrived from an organization called Dairy Management. It teamed up with Domino’s to develop a new line of pizzas with 40 percent more cheese, and proceeded to devise and pay for a $12 million marketing campaign.

Consumers devoured the cheesier pizza, and sales soared by double digits. “This partnership is clearly working,” Brandon Solano, the Domino’s vice president for brand innovation, said in a statement to The New York Times.

But as healthy as this pizza has been for Domino’s, one slice contains as much as two-thirds of a day’s maximum recommended amount of saturated fat, which has been linked to heart disease and is high in calories.

And Dairy Management, which has made cheese its cause, is not a private business consultant. It is a marketing creation of the United States Department of Agriculture — the same agency at the center of a federal anti-obesity drive that discourages over-consumption of some of the very foods Dairy Management is vigorously promoting.

Urged on by government warnings about saturated fat, Americans have been moving toward low-fat milk for decades, leaving a surplus of whole milk and milk fat. Yet the government, through Dairy Management, is engaged in an effort to find ways to get dairy back into Americans’ diets, primarily through cheese.

Your tax dollars are being used by the USDA to help Domino’s Pizza (and Taco Bell, Pizza Hut, Wendy’s, and Burger King according to the article) sell its product. Of course, the government isn’t trying to help these fast food giants so much as it’s trying to help a particularly favored special interest: farmers.

While calls to get rid of subsidies for Dairy Management would obviously be on target, the better move would be to get rid of the entire USDA, which the New York Times comically refers to as “America’s nutrition police.” The USDA has been around for almost 150 years, and yet Americans have never been fatter. If there’s a solution to America’s obesity “problem,” it won’t be found in Washington. In a free society, the only solution is to make individuals responsible for the consequences of their own decision-making.

See these essays for more on downsizing the U.S. Department of Agriculture.

End ED — From the Left!

It’s no secret that expelling the U.S. Department of Education is something that a lot of libertarians, and conservatives who haven’t lost their way, would love to do. What’s not nearly so well known is that there are also people on the left who dislike ED. Now, they don’t dislike it because it and the programs it administers clearly exist in contravention of the Constitution, or because its massive dollar-redistribution programs have done no discernable good. They dislike it because, especially since the advent of No Child Left Behind, it strong-arms schools into doing things left-wing educators often disagree with or resent, like pushing phonics over whole language, or imposing standardized testing. Many also truly believe in local control of schools, though often with power consolidated in the hands of teachers.

Case in point is a guest blog post over at the webpage of the Washington Post’s Valerie Strauss. The entry is by George Wood, principal of Federal Hocking High School in Ohio and executive director of the Forum for Education and Democracy. He writes:

Everybody dislikes bureaucracies, but for different reasons. The “right” complains they are unresponsive, full of “feather-bedders,” and a waste of taxpayer money. The “left” complains they are unresponsive, full of people who are too busy pushing paper to see the real work, and too intrusive into local, democratic decision-making. Maybe we should unite all this new energy for making government more responsive and efficient around the idea of eliminating a bureaucracy that was probably a bad idea in the first place.

Remember that the Department of Education was a payoff by President Jimmy Carter to teacher unions for their support. Before that, education was part of the Department of Health, Education and Welfare.

That’s where I propose returning it. Here are several reasons why:

First, the current structure of the national Department of Education gives it inordinate control over local schools. The federal government provides only about 8% of education funding. But through through NCLB, Race to the Top, and innovation grants, they are driving about 100% of the agenda. Clearly this is a case of a tail wagging a very big dog.

Second, by separating education from health and welfare, we have separated departments that should be working very closely together. We all know, even if some folks are loath to admit it, that in order for a child to take full advantage of educational opportunities he or she needs to come to school healthy, with a full stomach, and from a safe place to live.

But the federal initiatives around education seldom take such a holistic approach; instead, competing departments engage in bureaucratic turf wars that, while fun within the Beltway, are tragic for children in our neighborhoods.

Third, whenever you create a large bureaucracy, it will find something to do, even if that something is less than helpful. After years of an “activist” DOE, we do not see student achievement improving or school innovation taking hold widely. We have lived through Reading First, What Works, and an alphabet soup of changing programs with little to show for it.

In fact, DOE has often been one of the more ideological departments, engaging in the battles such as phonics vs. whole language. Who needs it?

Who needs it, indeed!

As I have touched upon repeatedly since last week’s election, now is the time to launch a serious offensive against the U.S. Department of Education. I have largely concluded that because of the wave of generally conservative and libertarian legislators heading toward Washington, as well as the powerful tea-party spirit powering the tide. But this is a battle I have always thought could be fought with a temporary alliance of the libertarian right and educators of the progressive left who truly despise top-down, one-size-fits-all, dictates from Washington. There are big sticking points, of course — for instance, many progressives love federal money “for the poor” — but this morning, I have a little greater hope that an alliance can be forged.