Make sure you watch and share this video revealing the actual conduct of New York City’s stop-and-frisk policy.

For years, top officials at the Department of Homeland Security have touted “fusion centers”—designed to share security information between state, local, and federal government agencies— as a “vital tool for strengthening homeland security,” a “proven and invaluable tool,” and “one of the centerpieces of our counterterrorism strategy.” But a blistering new bipartisan Senate report paints a radically different picture, exposing these centers as a costly boondoggle that flouted civil liberties safeguards, lacked basic accountability, and produced “intelligence” that was overwhelmingly useless or irrelevant—or as one particularly candid official put it, “a load of crap.”

How costly are they? Incredibly, DHS can’t even say for certain: Estimates of federal spending on the centers range from $289 million to $1.4 billion. Given that most states had a distinct shortage of real terrorists to keep tabs on, much of that money went to purposes utterly unrelated to actual counterterrorism analysis. One center blew $75,000 on dozens of flat-screen televisions, supposedly for an intelligence training program that never materialized. Now the TVs are being used to display calendars, and for “open-source monitoring”—also known as “watching the news.” Other popular purchases included Sport Utility Vehicles, laptops, and high tech surveillance toys for ordinary law enforcement—many of which were then given away to other local government agencies.

How useless are they? One official estimated that 85 percent of the reports they produced were of no benefit whatever, and the large majority of reports were unrelated to terrorism. Most of these weren’t published or circulated for months, and they often just regurgitated information from public press reports. Almost all these reports came from centers in just three states: Most of the 77 fusion centers produced little or nothing at all. Sorry, make that 68 fusion centers—it turns out the official DHS tally included several that didn’t actually exist.

Unsurprisingly, DHS “struggled to identify a clear example” in which fusion center intelligence helped identify any actual terrorists—and indeed, may have hampered effective counterterrorism by clogging the intelligence arteries with “predominantly useless” information. To keep justifying those millions of taxpayer dollars, however, DHS touted bogus “success stories,” like a report that sowed panic over a Russian cyberattack on a city’s water system—a cyberattack that had never happened. When internal assessments began to reveal the ineffectuality of fusion centers years ago, DHS hid the results from Congress—and kept on praising them publicly.

Of course, civil liberties groups have been warning for years that fusion centers are more likely to facilitate improper monitoring of citizens than legitimate security goals. And the Senate report shows they had reason to worry. One key DHS official revealed a disturbing view of he value of intra-agency “cooperation” when he noted that “We had fire [departments] — one of the few people who can enter your home without a warrant is a firefighter.” One notorious fusion center report suggested that Libertarian Party members, Ron Paul supporters, and individuals flying the Gadsden Flag popular with Tea Partiers were likely to be violent extremists. Many reports were shelved because they documented only innocent, protected First Amendment activity—but the information in them was often retained anyway, in potential violation of the Privacy Act.

Yet perhaps because those earlier criticisms fit the familiar narrative of the “privacy versus security” debate, less attention was devoted to the more basic question: Do these programs actually provide any security? Are the hundreds of millions in taxpayer dollars being spent on fusion centers making us any safer?

Unfortunately, this is something of a pattern—one I noted in National Review back in 2010. Utter the words “terrorism” or “national security” and even the most ardent deficit hawks are often cowed, fearful of being branded “soft on terror” if they dare to question whether the latest urgent effort to “do something” is really doing anything useful with taxpayer dollars. Cash-strapped local agencies and D.C. intelligence contractors are only too happy to accept funds unburdened by accountability. The result, as my colleague John Mueller has exhaustively documented, has been a decade of waste: Hundreds of billions squandered on one faddish new program after another, invariably touted as “vital” and “life-saving” when a veil of secrecy kept anyone from checking those dramatic claims—and all too often exposed, much later, as a costly gift to terrorists that had rendered us less safe by diverting resources and wasting the time of intelligence agents.

Perhaps, finally, Congress is ready to get serious about cost-benefit analysis, even for programs sporting a “security” label. That this report got published suggests that at least a few federal legislators care about finding effective ways to keep us safe—not just throwing our money away in a desperate attempt to look tough. Alas, the final “Recommendations” section seems geared toward finding a way to “fix” fusion centers rather than scrapping them. The “toughest” move now would be to admit that the centers are a failure, at least as a counterterrorism tool, that they’re unlikely to ever provide an intelligence benefit that remotely justifies their costs, and stop throwing good money after bad.

For a nice overview of the counterproductive incoherence of Republican education efforts over the decades, check out this piece by Frederick Hess and Andrew Kelly of the American Enterprise Institute. And for a sense of how confused conservatives remain when they write pieces telling other conservatives how to have “good” federal education policy, read the same piece. Its history section gives you the first part, and, unfortunately, its other sections give you the rest.

Hess and Kelly — who are generally pretty sharp — furnish a terrific overview of what happens when you talk “local control” of government schools and decry federal micromanaging, but can’t stop yourself from spending federal money and love “standards and accountability.” Basically, you get a great big refuse heap of squandered money, red tape, educational stagnation, and political failure.

Having laid all that out pretty nicely, you’d think that Hess and Kelly would reach the logical conclusion: Conservatives should obey the Constitution and get Washington out of education. But they don’t. Instead they give precious little thought to the Constitution, and make policy prescriptions that fundamentally ignore that government tends to work for the people we’d have it control. You know, concentrated benefits, diffuse costs; iron triangles — basically, the big problems Hess and Kelly decry at state and local levels.

Start with their constitutional argument (such as it is):

The federal government does have a legitimate role to play in schooling — and it always has. From the Land Ordinance of 1785, which set aside land for the purpose of building and funding schools, through Dwight Eisenhower’s 1958 investment in math and science instruction after the launch of Sputnik, the federal government has recognized a compelling national interest in the quality of American education.

Wow! What a sweep of history! What a great many years this covers!

The thing is, most of those years see essentially no federal education activity, and the first year mentioned — 1785 — precedes the Constitution. Why very little activity between 1785 and 1958? Because relatively few people thought the national government had any role to play in governing education. That’s why neither the word “education” nor “school” (or, for that matter, “compelling national interest”) is in the Constitution, and even a commission created by Franklin Delano Roosevelt said that there is no constitutional federal role in education. Washington does have jurisdiction over District of Columbia schools, and a responsibility under the 14th Amendment to prohibit discrimination, but that’s it.

OK, to be fair, it could also be argued that Congress can constitutionally pass education provisions like those in the Land Ordinance. But not because Washington has power over education. No, because as you see in Article IV, Section 3 of the Constitution, it has power over territories. Of course, states and districts are not territories, and the 10th Amendment reiterates what is clear from the granting of only specific, enumerated powers to Congress:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

In an effort to deal with the very clear failures of federal education policy — but without the clarity of following the Constitution — Hess and Kelly offer three things they think the Feds can and should focus on: transparency, research, and “trust-busting.” However, all three ignore the fundamental political reality that school systems tend to be controlled by their employees because the employees have the most at stake. And what are their incentives? Same as mine and yours: to get compensated as generously as possible and have no one hold them accountable for their performance. The result, of course, has been oodles of money spent without meaningful academic improvement.

Start with transparency. Lauding No Child Left Behind for having improved “citizens’ ability to gauge and compare school quality,” Hess and Kelly argue that the Feds “should require that states collecting federal school funds measure and report detailed data on school quality and educational costs in a consistent, uniform way.” They caution, however, that Washington shouldn’t prescribe standards or curricula, but should measure “schools’ return on public investment.”

Talk about conflicted! How exactly do Hess and Kelly expect the Feds to both stop short of mandating curriculum and standards, and provide an accepted measure of specific schools’ return on investment? Even if you could thread the needle for a while, it is very hard to imagine Washington not eventually narrowing acceptable measures down to a single curriculum and test so that results could be uniform and distilled into soundbites. And what would likely happen even if the standards started off rigorous and the testing tough? The employees who would ultimately be held accountable would simply move their dumbing-down pressure from state and local levels to the federal level, where policy was now being made. Nothing would be solved, and there would be huge added problems of a new, monolithic standard that could in no way effectively serve greatly diverse kids, as well as the quashing of competing curricular ideas.

Next we’ve got the research argument, which is predicated on the well-known contention that the incentives for private-sector investment in “basic” scientific research — which doesn’t offer immediate returns — are too weak to provide for optimal amounts. The Feds, therefore, have to step in with oodles of grant money. Hess and Kelly would like to extend that model to education research.

Education, however, is not particle physics, the kind of research we generally imagine as “basic.” The need for major equipment investment is not nearly as great for education, nor are the likely benefits of, say, studying the effects of flash cards as far distant as the industrial applications of string theory. Moreover, if we had broad school choice, with schools able to seek profit without penalty, educators would have every reason to invest in research and find better, more efficient ways to teach kids. Finally, there is good evidence that science funding is just as likely to translate into rent-seeking benefits to the scientists as scientific benefits to the public.

Oh, and the constitutional basis for education research spending? Hess and Kelly don’t even try to offer one.

Finally, we have “trust-busting.” Here even Hess and Kelly’s examples illustrate how mistaken their ideas are. While sensibly calling for a reduction in calcifying federal rules and regulations, Hess and Kelly also argue that the Feds should be able to set up “private” entities to compete with the public-school monopoly. They cite as an example the American Board for Certification of Teacher Excellence, which provides a teacher preparation and certification process separate from those established by states. They also note that ABCTE has been “generally neglected.” Which is probably a good thing. After all, think of two other “private” federal creations: Fannie Mae and Freddie Mac. Seems there can be big problems when Washington creates supposedly private entities.

Then there’s this: “A related role for federal lawmakers is to help lift the burden of bad past decisions and troubling policy legacies that hinder reform-minded state and local leaders.” Hess and Kelly argue that Washington should create a form of bankruptcy that lets states and districts render null and void labor contracts and other obligations that make it hard for them to do business. And what example do they use of organizations that have been crippled by “legacy” contracts? General Motors and Chrysler.

Of course, thanks to the federal government, GM and Chrysler didn’t go through normal bankruptcy, did they? No, they went through processes jury-rigged to favor politically important special interests. That lesson should be screaming at Hess and Kelly: Give Washington power over something and they won’t use it for the common good. They will use it to reward the politically powerful, the very state and local problem Hess and Kelly are trying to solve!

The simple reality is that the federal government is no less subject to special-interest control — the ultimate result of the basic political problem of concentrated benefits and diffuse costs — than state and local governments. Except, that is, that Washington is even more distant from the people than state and local governments, and if people don’t like their state or local schools they can at least move.

There is, really, only one solution to the basic government problem of concentrated benefits and diffuse costs, and we do no one any favors by denying it: We need to end government control of education. We need a free market, in which educators are free to teach as they see fit and are held accountable by having to earn the business of paying customers.

The federal role in getting to this, thankfully, is simpler than what must be done at state levels, where constitutional authority over education actually exists. All that Washington has to do is obey the Constitution and get out of education. And yes, Rick and Andrew, that is what the Constitution requires.

Cato legal associate Sophie Cole co-authored this blog post.

A person’s home is his castle and thus affords certain protections and immunities — including the right to exclude unwanted visitors — that apply whether you own or rent.

Unfortunately, ordinances authorizing general administrative searches of rental properties have been increasingly adopted by local authorities with little protection for privacy interests. These inspections reach the whole of the buildings and all of the activity that occurs within, opening up every aspect of people’s lives to the government: political and religious affiliations, intimate relationships, and even all those Justin Bieber posters and Fifty Shades of Gray books you hide when people come over.

For the past five years, the city of Red Wing, Minnesota, has been enforcing such a rental property inspection program whereby landlords and tenants must routinely open their doors to government agents. These searches take place even if both the landlord and tenant believe it not to be necessary. The owner of the property even has to pay a fee for the unwanted search to receive a rental license!

The city sometimes makes initial requests for consent, but these are mere courtesy because the city proceeds with an administrative warrant in the event of a refusal — without a showing of probable cause to believe there’s a housing code violation or other problem. The inspection ordinance doesn’t even attempt to prevent the disclosure of information revealed during the search; the whole neighborhood may find out that you have five different facial cleansers and an unusual amount of apple sauce.

A group of landlords and tenants have thus challenged the inspection program, arguing that several alternatives are available to meet what legitimate interests local governments have. They successfully opposed three applications made for administrative warrants and now seek a court order that the rental inspection ordinance is unconstitutional.

Unfortunately, the U.S. Supreme Court has read the Fourth and Fourteenth Amendments as not prohibiting such legislation, but of course states are free to offer more protection for individual rights. The Red Wing plaintiffs have thus invoked Article I, Section 10 of the Minnesota Constitution, which contains language similar to the federal Fourth Amendment.

Cato has joined the Reason Foundation, Libertarian Law Council, Minnesota Free Market Institute at the Center of the American Experiment, and Electronic Frontier Foundation in filing an amicus brief urging the Minnesota Supreme Court to take the Red Wing case and confirm that no Minnesotan should be subjected to an intrusive invasion of privacy when there has been no showing of some cognizable public health or safety issue within the home subject to inspection.

The Minnesota Supreme Court should be the first to decide that its state’s constitution provides greater protections against warrantless home inspections than even the Fourth Amendment (as construed by the U.S. Supreme Court). No other state judiciary has substantively ruled on constitutional protections against administrative searches in residential contexts, so this case presents an opportunity to set a benchmark for liberty.

The Minnesota Supreme Court will decide whether to take the case of McCaughtrey v. City of Red Winglater this fall.

This blogpost and the amicus brief it references were co-authored by Trevor Burrus and Kathleen Hunker.

When Brian Hall, former House Majority Leader Dick Armey, and other over-65 retirees requested to opt out of Medicare’s hospital insurance coverage (because they preferred their existing private coverage), the Social Security Administration didn’t thank them for saving taxpayers’ money. Instead, the SSA explained that, because of a guideline in its “Program Operations Manual System”—essentially a manual that explains how to operate the Social Security system—anyone who declined Medicare benefits would lose Social Security.

That is, Hall and the others could disclaim their Medicare hospital insurance coverage, but only if they forfeited all of their future claims to Social Security and repaid whatever benefits they already had received — roughly $280,000 altogether. The plaintiffs challenged the linking of Social Security and Medicare as being beyond the SSA’s statutory authority. Neither the Social Security Act nor the Medicare Act allows administrative agencies to precondition benefits under one program on acceptance of benefits from other. Instead, the plain language of both statutes states that petitioners are “entitled” to benefits, which according to legal and general usage describes someone who is “legally qualified” and thus has the option of claiming benefits.

The district court disagreed and the U.S. Court of Appeals for the D.C. Circuit, in a split decision, affirmed the trial court’s result but declined to grant the POMS rules deference. The court then unanimously denied a petition for rehearing. Recognizing that the D.C. Circuit ruling, if left in place, could encourage future encroachments on congressional power by administrative agencies, Cato filed an amicus brief supporting Hall’s request that the Supreme Court take the case and enforce the statute as it was written.

We note that administrative agencies have no powers not granted to them by Congress and that regulations must be anchored in the operative statute—as well as the agency’s fair and considered judgment—in order to warrant judicial deference. The POMS regulation fails this standard because Congress’s use of the word “entitled” was clear and unambiguous. Combined with the fiscal irresponsibility of forcing citizens to accept costly benefits in an economic recession, the POMS rule appears to be an arbitrary power grab rather than a faithful effort to implement the will of Congress. We conclude by reminding the Court that agency overreach imperils the separation of powers and therefore liberty.

When Congress fails to counter an unauthorized expansion of power by an administrative agency, the judiciary has a duty to uphold the Constitution by enforcing the relevant statute as written.

The Supreme Court will decide later this fall whether to take the case of Hall v. Sebelius.

The Interstate Agreement on Detainers, a compact authorized by federal statute, provides a simple procedure for transferring custody of prisoners between states. Because the federal government annually seeks to prosecute thousands of prisoners already in state custody, it joined the IAD in 1970 to get the benefit of this unified procedure. When it joined, it did so as a “state” for purposes of the agreement, and exempted itself from only two provisions (which aren’t relevant here). One of the provisions that the federal government decided not to exempt itself from, Article IV(a), allows the governor of the sending state to deny any request made by a receiving state to transfer a prisoner.

In September of 2010, Jason Pleau offered to plead guilty to robbery and murder charges in Rhode Island in exchange for life in prison without parole, the harshest sentence that state’s law allows. Pleau’s crimes also allegedly violated federal law, however, and the U.S. government wanted to prosecute Pleau itself in order to seek the death penalty. The federal government thus sought custody through the IAD by filing for the little-known writ of habeas corpus ad prosequendum (“show me the body for prosecution”).

The governor of Rhode Island, Lincoln Chafee, disapproves of the death penalty and used his authority under the IAD’s Article IV(a) to deny the federal request. A federal district court, later affirmed by the U.S. Court of Appeals for the First Circuit, overruled Chafee’s denial, stating that the Supremacy Clause prevented the governor from interfering with the federal government’s wishes.

The First Circuit found that the compact’s specific text and the normal canons of statutory construction were “all beside the point.” According to the court, what was important was that Congress could not possibly have meant to grant state governors the power to deny federal transfer requests—and thus the IAD didn’t affect the balance of power between the federal government and the states. The First Circuit thus granted the writ, and Pleau is now in federal custody.

The question presented here, whether the Supremacy Clause trumps a governor’s right to deny a request for transfer of custody under the IAD, raises two important issues: First, if the First Circuit is right, then the federal government may reap the benefit of interstate bargains without having to fulfill its own obligations under them. Second, the First Circuit’s opinion effectively treats the state courts as inferior to the federal courts, which upsets the system of concurrent sovereignty that the Founders designed.

Cato has joined the Independence Institute to file an amicus brief urging the U.S. Supreme Court to hear this case, with a focus on the second issue. We argue that the U.S. legal system has always recognized the dual sovereignty of federal and state courts, dating back to Chief Justice John Marshall. As Chief Justice Marshall explained, that dual system requires that state courts not be considered inferior to federal courts, and thus federal courts have no independent authority to order prisoners under state jurisdiction to be transferred to the federal system.

Furthermore, when abrogating state sovereignty via the Supremacy Clause, Congress must demonstrate its intent to do so with “unmistakably clear language”—and none of the statutes applicable here contain any such language. Finally, we argue that the First Circuit has misinterpreted relevant Supreme Court precedent and that a proper reading of the relevant case law would establish that a state is well within its rights to treat the federal government like any other state under the IAD and deny its request to transfer a prisoner into federal custody.

The Supreme Court will decide whether to take up the case of Chafee v. United States and Pleau v. United States later this fall.

I’m pretty much a free speech absolutist. I know that’s an epithet, but to me it’s kind of like being an arithmetic absolutist: There are right and wrong answers. Emotional attachment to the right answers might be kooky — but it sure beats being attached to the wrong ones.

In Slate, Eric Posner reminds us that the rest of the world doesn’t love the First Amendment. Even Americans weren’t always free speech absolutists, Posner notes; for much of our history, the state blithely ignored the First Amendment whenever it became inconvenient. American governments cheerfully arrested anarchists, communists, pacifists, and purveyors of birth control literature. They prosecuted publishers of works by James Joyce and William S. Burroughs.

It might be better, Posner suggests, if we went back to the good old days.

That’s what we call an argument from authority. Arguments from authority are like placeholders. They say, “Someone else made this argument for me.” As a result, an argument from authority can only ever be as good as the argument that the authority has actually made. It can’t be any better. If it’s a placeholder for a good argument, that’s sometimes allowed. If it’s trying to hide a bad argument, that’s a problem.

So what’s the real argument here? Posner is vague. He just says a whole lot of people have made one.

That’s true. But it’s also a tricky move on his part, because it’s hard for me, or for anyone, to refute all of the anti–free speech arguments that billions of different people have made all over the world during the last several centuries. To say nothing of the arguments that people might make in the future.

In cases like this, the burden of proof is on the person who wants to argue for a restriction in liberty: It’s what philosophers, notably Anthony de Jasay, refer to as the presumption of liberty.

Some arguments for restricting liberty might be plausible, even convincing. But if they are, then surely they can and should be made explicitly. Bear in mind that some liberty-restricting arguments are going to be fallacious, and we need to sort these out before we can act with any justification. Until we do, liberty is what we have to go on. Those who wish to restrict will need to meet the burden of proof.

Digging a little deeper, Posner offers what might be called half an argument:

A totem that is sacred to one religion can become an object of devotion in another, even as the two theologies vest it with different meanings. That is what happened with the First Amendment. In the last few decades, conservatives have discovered in its uncompromising text— “Congress shall make no law … abridging the freedom of speech”—support for their own causes. These include unregulated campaign speech, unregulated commercial speech, and limited government. Most of all, conservatives have invoked the First Amendment to oppose efforts to make everyone, in universities and elsewhere, speak “civilly” about women and minorities. I’m talking of course about the “political correctness” movement beginning in the 1980s, which often merged into attempts to enforce a leftist position on race relations and gender politics.

Let’s grant for the sake of discussion that the freedom of speech is just another totemic religion. (It’s absurd to say so, for reasons I’ll soon explain. But bear with me.) Granting Posner’s claim, I might very well ask: Why should my religion — the bare, unmitigated, absolute freedom of speech — yield to someone else’s religion, which has at best an equal (and not a greater) moral force? That is, even if we admit Posner to be correct, all we have is an irresolvable dilemma. In cases of irresolvable dilemma, the tie goes to my bliss. Why not?

But Posner does have a bit of a point here. Sometimes defending free speech is a little too easy. To get personal here: I’m a gay atheist who loves bacon, martinis, and compound interest. Hooray for capitalism! I also think women’s hair is awesome, and they should be able to wear it however they please. I’m not exactly going to be sympathetic to the Muslim religion, and if The Innocence of Muslims had any wit or cleverness about it, I’d be laughing my ass off. (Spoiler alert: It doesn’t.)

In other words, this particular film isn’t such a great test for me. A better one, both for me and for lots of others, might be the building of a mosque in downtown Manhattan, not far from the site of the World Trade Center. Or the protests of the Westboro Baptist Church. Or Slate publishing an odious article suggesting that we capitulate to violent thugs on the other side of the world.

Any of those might do. In each, I’ve got some serious disagreements with the message. And I support free expression anyway. If you do too, then congratulations. You’re probably a free speech absolutist.

But is free speech absolutism a religion? No. It’s not. It’s not even an ordinary aspect of public policy. It’s a meta-political commitment.

I’m sorry for the fancy term. Sometimes they’re actually helpful. Free speech is a thing that we do because we trust that, by doing it, we get better politics (and better religion, and better art, and better science, and…). The airing of different ideas, even of bad ideas, is not something that we hold as a revelation from God, or from the mystical Founders, or from the high authority of the Supreme Court in the era of Earl Warren. We support free speech because we believe it conduces to all sorts of other good things — including good public policy.

Posner has to deny that, and he does:

Suddenly, the disparagement of other people and their beliefs is not an unfortunate fact but a positive good. It contributes to the “marketplace of ideas,” as though we would seriously admit that Nazis or terrorist fanatics might turn out to be right after all. Salman Rushdie recently claimed that bad ideas, “like vampires … die in the sunlight” rather than persist in a glamorized underground existence. But bad ideas never die: They are zombies, not vampires. Bad ideas like fascism, Communism, and white supremacy have roamed the countryside of many an open society.

This is some weak argument. The point of free speech is not and has never been that Naziism is a “positive good.” That would be a bare self-contradiction, because Naziism entails censorship. Nor do we necessarily admit that Nazis can be talked out of their beliefs (although, on the margins, some certainly were).

We air odious beliefs so that each of us — who are not Nazis or otherwise fanatics — may learn to argue properly against them. Are they zombies? Yes! Do you remember how every single fantasy video game used to start with killing, like, a whole bunch of zombies? That’s political education in a free society. You kill zombies until you acquire the skills to do more interesting things.

Posner ends with a nod to the protesters in Cairo and Islamabad, whose grievances, he implies, must go beyond a stray YouTube video. What would we say to them?

In some cases, I would protest the very same things. Like them, I too am concerned about American drone strikes. I don’t like how they are changing international relations. I don’t like what they are doing to American civil liberties. I certainly don’t approve of killing innocent bystanders in Pakistan.

I protest these things. Peacefully. Can they peacefully protest as well? Overwhelmingly, the answer is yes. Well then. Come, let us reason together.