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June 25, 2020 2:30PM

RSC’s FTO AUMF: LOL!

In these increasingly grim Days of Rage and COVID, you have to take your laughs where you can find them, sometimes from unusual sources. It has come to my attention that the Republican Study Committee—the nearly 150‐​strong caucus of House conservatives—recently released a comprehensive national security strategy entitled, “Strengthening America & Countering Global Threats.” The “product of over 1.5 years of policy development,” this 120‐​page manifesto is “a conservative, solutions‐​oriented plan” that “advances the interests of the American people at home and abroad,” according to RSC Chairman Rep. Mike Johnson (R.-LA) and Rep. Joe Wilson (R.-SC). 

Emphasis on “Global”

Have they got a solution for you!

One of those purported solutions involves constitutional war powers. The RSC report acknowledges that the congressional resolutions the president currently relies upon to wage war—the 2001 and 2002 authorizations for the use of military force (AUMFs)—are “outdated,” have been “stretched,” and therefore “some conservatives may be concerned with increasingly degraded congressional war powers.” What’s needed, the RSC says, is a new AUMF “giving the President sufficient authority to go after terrorist organizations for a definitive length of time without granting vague and indefinite war powers.” But what the House GOP brain trust has come up with would empower the president to wage war in, among other places, Peru, Sri Lanka, Japan, Spain, and—why not?—Northern Ireland. In (God help me) nearly two decades of following the war powers issue, it’s the most ridiculous proposal I’ve ever seen.

Here’s the RSC’s bright idea: replacing the 2001 and 2002 resolutions with “an AUMF that authorizes the President to engage in operations against any currently designated Foreign Terrorist Organization (FTO) that is on the Department of State’s list at the time of enactment.” Granted, it would be nice to have a fixed, public list of terrorist organizations Congress has empowered the president to target. What we’ve got instead is runaway mission creep, as successive presidents have expanded the war on terror to new theaters and new jihadist groups under the rubric of “[Al Qaeda‐] associated forces.” Along the way, they’ve been extraordinarily cagey about which groups we’re at war with and which ones we might target next. As a result, nearly two decades after 9/11, the U.S. is engaged in combat operations in some 14 countries, bombing half a dozen of them on a semi‐​regular basis.

And, true enough, the State Department has a list of Foreign Terrorist Organizations that it’s maintained since the late ‘90s, following criteria outlined in the Antiterrorism and Effective Death Penalty Act of 1996. You can take a look at the FTO list here. It includes some 67 groups in 30 countries.

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June 24, 2020 12:25PM

A Season for Endings

It seems to be a season for endings. At the end of May, after almost 21 years, Walter Olson published his final blog post on Overlawyered, which was described by Law​.com as “widely considered to be the oldest legal blog and also one of the most popular.” And now Johan Norberg has delivered his last “Dead Wrong” video essay, after some 4 years and 172 weekly episodes.

Of course, the world didn’t run out of legal absurdities or myths that needed busting. So have no fear: Olson and Norberg will continue to add to the world’s store of knowledge and understanding. Walter Olson can be read regularly here on this blog and in publications ranging from Arc Digital to the Wall Street Journal. Johan Norberg promises a new video blog series in 2021. He also has a book coming out in the fall, Open: The Story of Human Progress, and a planned public television documentary on corporate welfare in early 2021.

And don’t forget: Overlawyered’s archives are still a great place to search for news and commentary on law, litigation, free speech, workplace policy, and related topics, and “Dead Wrong” still has 172 videos posted on growth, progress, stagnation, socialism, economic fallacies, Sweden, Europe, and much more.

Watch Norberg’s sign‐​off video:

June 4, 2020 11:57AM

Americans Don’t Want to #Defund Police, Instead They Agree on Reform

Connor Friedersdor writes in the Atlantic that police reform is popular, while rioting is not. He’s right. While only 16% of Americans favor cutting funding for police departments, the Cato Criminal Justice National Survey found that Americans across racial and political backgrounds support a variety of policy changes that reformers say would help mend fences between police and the communities they serve.

Read the full Cato 2016 Criminal Justice National Survey results here.

It’s true that Americans of different racial backgrounds have vastly different perceptions of police. Strong majorities of African Americans believe police are too quick to resort to deadly force (73%) and aren’t held accountable for misconduct if it happens (64%). On the other hand, whites believe police use deadly force only when necessary (65%) and generally are held accountable for bad behavior (57%). But the racial divide in perceptions largely vanishes when it comes to policy reforms. The Cato survey found:

  • 79% of Americans support having outside law enforcement agencies investigate police misconduct, rather than leave it to the department to handle. It may surprise some readers to learn that most jurisdictions in the U.S. allow police departments to investigate and discipline their own officers. Instead, most Americans think having some outside oversight could enhance accountability. Majorities across racial groups support this: 81% of whites, 82% of blacks, and 66% of Latinos support outside investigations of misconduct.
  • 65% of Americans believe racial profiling is commonly used, but nearly the same share oppose it. 63% oppose the practice of police stopping motorists or pedestrians of certain racial or ethnic groups if police believe that these groups are more likely than others to commit certain types of crimes. 62% of whites, 77% of blacks, and 62% of Hispanics all oppose racial profiling.
  • 68% support de‐​escalation training for police to aid police officers during confrontations with citizens. 62% of whites, 81% of blacks, and 70% of Hispanics support providing this additional training to officers.
  • 53% think local police departments using military weapons and armored vehicles “goes too far” and aren’t necessary for law enforcement purposes. Presumably, these same Americans think police ought not to use such equipment. 53% of whites, 58% of blacks, and 51% of Hispanics think local police using military weapons goes too far.
  • 89% support the police wearing body cameras. Americans don’t think this is just for civilians’ benefit—but for police officers too. Nearly three‐​fourths (74%) think body cameras equally protect police officers who wear them and citizens who interact with them. 90% of whites, 89% of blacks, and 87% of Hispanics support police wearing body cameras.
  • 73% support a law requiring police officers to notify citizens when a stop is voluntary and they are free to decline a search, including 74% of whites, 63% of blacks, and 74% of Latinos.
  • 54% favor treating drug offenses like minor traffic violations with small fines rather than as felonies. Some scholars believe cooling the drug war could reduce the number of high stakes encounters between police and communities thereby helping to rebuild trust. 54% of whites, 59% of blacks, and 52% of Hispanics support re‐​categorizing drug offenses from felonies to civil offenses.
  • 84% support ending a practice called civil asset forfeiture in which police may take money or property of a person they suspect may have been involved in a crime before the person is convicted. 84% of whites, 86% of blacks, and 80% of Hispanics think police should only be allowed to seize property after a conviction.
  • 67% support banning neck restraints as a police tactic, including 67% of whites, 74% of blacks, and 59% of Latinos. (According to a Yahoo/​YouGov May 2020 survey)
  • 80% support implementing an early warning system to identify problematic officers, including 81% of whites 88% of blacks, and 74% of Latinos. (According to a Yahoo/​YouGov May 2020 survey)

Americans across racial lines also support a number of changes to the criminal justice system.

  • Majorities of Americans support eliminating mandatory minimum prison sentences for both violent offenders (58%) and non‐​violent offenders (75%) so that “judges have the ability to make sentencing decisions on a case‐​by‐​case basis.” Majorities of whites (59%), blacks (63%), and Hispanics (54%) agree with eliminating mandatory minimum prison sentences for violent offenders as well as non‐​violent offenders (76%, 75%, and 67% respectively).
  • 73% of all Americans support a plan that would cut the length of prison sentences for non‐​violent drug offenders: 74% of whites, 77% of blacks, and 67% of Hispanics agree.
  • 73% of all Americans support allowing non‐​violent drug offenders who have served their sentences to vote: 75% of whites, 81% of blacks, and 66% of Latinos agree.

Read the full Cato 2016 Criminal Justice National Survey results here.

It’s also useful to keep in mind that few Americans of any racial group support some of the more radical changes demanded by some activists. For instance, few people support calls to abolish or defund the police: 9 in 10 black, white and Hispanic Americans oppose reducing the number of police officers in their community—and a third say their community needs more officers the Cato survey found. And a Yahoo/​Yougov survey found that only 16% of Americans favor cutting funding for police departments, including 12% of whites, 33% of blacks, and 17% of Hispanics.

While Americans support (57%) the general purpose behind the protests in response to the death of George Floyd. They do not like protests that turn violent and lead to rioting. And the Yahoo/​YouGov poll found that 51% felt the Minneapolis protests were mostly violent riots, not peaceful. This may be why a Morning Consult poll found that 71% of Americans support sending in the national guard to address the protests.

Especially as tensions and emotions are high, these data demonstrate that Americans don’t have to reach consensus about every policing problem. Instead, we should remember that Americans across racial lines agree a great deal about how police should do their jobs and support policies intended to help achieve that goal.

Read the full Cato 2016 Criminal Justice National Survey results here.

March 21, 2020 1:29PM

With the Economy in an Induced Coma, No Time to Waste in Bridging the Medical Supply Gap

At the behest of public health officials and politicians, many Americans have submitted —to varying degrees—to the practice of social distancing. The logic behind the push for social distancing is that it will help “flatten the curve.” Flattening the curve is shorthand for slowing the contagion to limit the surge in demand for health care services (hospitals, doctors, nurses, beds, respirators, testing kits, gloves, sanitizers, and other protective gear), which we have learned in recent weeks are in woefully short supply. By distancing ourselves from each other, the rate of contagion is forecast to be more manageable and less likely to strain the health care system to the point of collapse. Fair enough.

Through laws, advisements, and social pressure, the economy has been put into an induced coma to relieve pressure on our medical infrastructure. But, of course, that preemptive behavior carries huge financial and human costs. Government is notorious for touting the benefits and ignoring the costs of the regulations it imposes or the actions it recommends. The concept of maximizing the net benefits is utterly foreign to most policymakers.

As Chris Edwards describes, the economy cannot withstand a prolonged shutdown, and with economic contraction comes worsening despair, destitution, and increased morbidity and mortality rates. The benefits of extreme social distancing may save lives over the next few months, but the costs—in addition to what may become the worst economic contraction the world has ever witnessed—include lost lives, too. Accordingly, it makes no sense to put all the onus on reducing demand for health services—especially when doing so requires our taking actions that will kill people anyway.

It’s only a matter of time before people—especially younger people with less savings to fall back on—start to reckon that social distancing is an inferior choice. If we are to prevent or mitigate this eventuality, we must aim to shorten the period where social distancing is necessary. That can only happen if we ramp up efforts on the medical infrastructure supply side.

Over the past 48 hours, we have seen stories about certain U.S. manufacturers working to convert their factories into facilities to produce badly needed medical supplies, and equipment or shipping companies rerouting and reconfiguring what they deliver and when. But is this really happening on a meaningful scale? Has there been an impact on the supply of masks, gloves, and respirators? Has there been follow through on these stated initiatives?

I haven’t been able to get answers. I’ve inquired with officials who work for major business trade associations in Washington, but have received no responses. Two days ago, Ford Motor Company made noises about reopening shuttered facilities to produce respirators, but the last substantive news story on this matter that I’ve seen was published yesterday in Politico. The story notes:

“[M]anufacturing facilities in the United States are already at 100 percent production capacity and are looking to ramp up by another 15 or 20 percent,” said Jim Jeffries, the senior vice president for public affairs for AdvaMed, which represents medical technology companies. He said in the medical industry, companies are adding third shifts and repurposing production lines, while also looking to other sectors — autos among them — to see if protective equipment can be “retrofitted” to help combat the crisis.

“You’re seeing a really strong industry‐​wide mobilization to the fight,” Jeffries said. “They’re looking at literally every possibility to make sure that we can meet the demand.”

But a spokesperson for General Motors underscored Thursday that there is no concrete plan yet to do anything.

“This is very early,” said GM spokesperson Jeannine Ginivan. “Right now it’s just an internal feasibility study on whether it‘s possible for us to help out in the production of medical equipment.”

This doesn’t sound promising. Of course, for many existing businesses, converting operations to produce these needed commodities doesn’t portend profitability. And without a degree of certainty as to how much will be demanded and for how long, it’s a crapshoot to know how much to invest in production capacity and distribution.

For those and other reasons, business appears slow, even unwilling, to meet the challenge. This statement from the Business Round Table praising the administration’s decision to open a THREE MONTH comment period on the question of whether and which tariffs should or should not be lifted on imports from China speaks to a complete absence of urgency.

While I am not recommending the government (especially THIS government) commandeer factories and other private assets to redirect manufacturing output to bridging the medical supply gap (less drastic inducements, such as tax forgiveness and future tax credit allowances, are available), that redirection has to happen so that everyone can be tested, the sick quarantined, and the healthy set free to begin the long process of resuscitating the economy. The alternative is unimaginable.

January 29, 2020 12:23PM

Federal Budget Outlook: Worse than CBO

The Congressional Budget Office has released new projections for federal spending and revenues through to 2030.

Federal budget policy is a disaster. The government will spend $4.6 trillion this year, raise $3.6 trillion in tax revenues, and fill the gap with $1 trillion in fresh borrowing. That is like a worker earning $36,000 in income but spending $46,000 and putting $10,000 on credit cards. Maybe he can get away with the excess spending for a while, but eventually his finances will crash.

The CBO’s baseline projections show spending rising faster than revenues in coming years, with the result that annual deficits by 2030 are expected to hit $1.74 trillion. Spending in 2030 at $7.49 trillion will be 30 percent higher than revenues of $5.75 trillion, as shown in the chart below.

Those projections are ugly, but they are optimistic if policymakers do not enact major reforms. One optimistic CBO assumption is that discretionary spending will decline as a share of GDP in coming years, which seems unlikely given that both parties these days push for higher spending. So I’ve included on the chart a “more likely” spending projection that assumes discretionary spending stays at today’s share of GDP.

On the revenue side, CBO includes the expiration of the GOP tax cuts after 2025, but it is likely that some or all of those cuts will be extended. Democrats may agree to extension in return for more low‐​income benefits. So the chart includes a “more likely” revenue line, which assumes the tax cuts are extended, which I roughly calculated by assuming revenues stay at the 2025 share of GDP.

The more likely spending line also includes my rough estimate of the higher interest costs created by higher spending and lower revenues.

Under the more likely scenario, the annual deficit by 2030 will be $2.37 trillion, up from $1.74 trillion under the CBO baseline. The more likely scenario has spending in 2030 at $7.79 trillion, which will be 44 percent higher than revenues that year of $5.42 trillion.

Our economy is growing and we are at peace, so federal deficits and debt should be falling. But deficits are soaring and debt is at record high levels for peacetime as a share of the economy. The outlook is particularly scary because neither party is even talking about spending reforms. We are marching into a fiscal crisis and our elected leaders seem to have no idea how to tackle it and do not even seem to care.

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December 18, 2019 5:30PM

It’s Not True That Impeachment Paralyzes Government (Unfortunately)

It’s a “solemn” and “sad” affair, impeachment: there are so many reasons to wear black. That’s what the pols and pundits tell us, anyway. Tonight’s House vote will unleash a host of plagues: stoking partisan furies, rattling the markets, and— worst of all from this town’s perspective—distracting Congress and the president from doing “the people’s business.” We’re in for a period of “squandered months during which official Washington is pulled apart,” U.S. News’s Kenneth Walsh warned in late September: brace yourself for “The Coming Impeachment Paralysis”

Paralysis?

Some of us don’t find that prospect particularly terrifying, but your mileage may vary. In any case, after last week’s legislative onslaught, can we finally put this particular hobgoblin out to pasture—or wherever it is that worn‐​out hobgoblins go? For better or worse, it’s just not true that “nothing gets done” during an impeachment.

“Hidden by impeachment: ‘One of Trump’s best weeks yet,’” the Washington Examiner’s Paul Bedard crowed on Friday. In the midst of the impeachment drive, the president just keeps putting points on the board, including “a new U.S.-Mexico-Canada trade deal,” confirmation of his 50th appellate judge, “government family leave,” and—cue “Also Sprach Zarathustra”—Space Force! The New York Times hailed the $738 billion “defense” bill, which includes paid parental leave for over 2 million federal workers, as “part of a year‐​end burst of bipartisan legislating that has broken out this week, even as the Democratic‐​led House moves toward impeaching Mr. Trump.”

That impeachment paralyzes the government isn’t true now, and it wasn’t true in past impeachment struggles either. The 93rd Congress passed, and Richard Nixon signed, four major bills in between the House’s formal approval of the inquiry in February 1974 and the president’s resignation six months later. One of those laws, the Impoundment Control Act, you may have heard about in recent weeks: President Trump may have broken it when he held up military aid to Ukraine this summer. Of course, Watergate became all‐​consuming before the House voted for an impeachment inquiry. If you start the clock closer to when Nixon’s troubles really took off—say with the Saturday Night Massacre in late October ’73—you can add another half‐​dozen, including the War Powers Resolution (passed over Nixon’s veto) and the Endangered Species Act.

More recently, President Clinton signed four major bills during his impeachment “journey,” even while soul‐​searching for “the rock‐​bottom truth of where I am and where we all are,” after his fling with an intern. In October 1998, the “people’s business” included the Children’s Online Privacy Protection Act, the Digital Millennium Copyright Act, and the Iraq Liberation Act. For my money, the people would’ve been better off without most of those, particularly the latter, which became a vital talking point for Iraq hawks in the run up to George W. Bush’s disastrous war. But if, like House Minority Leader Kevin McCarthy, you measure legislative “productivity” in terms of big bills passed, that was a fairly productive session.

It’s true, nothing much is likely to get done for a month or so after the holidays, while the Senate holds President Trump’s impeachment trial. “The legislative and executive business of the Senate shall be suspended” while it’s ongoing, per the Senate Rules. But maybe we could use a break.

December 12, 2019 9:50AM

Keeping Impeachment Simple

Last night, the House Judiciary Committee began debate on the two articles of impeachment unveiled earlier this week by HJC chairman Rep. Jerrold Nadler (D-NY). Despite recent talk about cluttering the articles with Emoluments Clause and Mueller probe accusations, in the end the Democratic leadership decided none of those charges sparked joy. The articles set for markup today focus exclusively on the Ukraine affair and President Trump’s response to the impeachment inquiry it launched.

The decision to Keep Impeachment Simple, Stupid was a smart call. The two articles confine the case against Trump to a digestible set of facts. Equally important, they avoid framing the president’s conduct in criminal‐​law, focusing instead on misuse of official power and violations of public trust.

The first article, on “Abuse of Power,” accuses Trump of conditioning a state visit and delivery of military aid on the Ukrainians announcing an investigation of his 2020 rival Joe Biden. In so doing, Article I charges, Trump misused the powers of his office “for corrupt purposes in pursuit of personal political benefit.”

I could have done without the far‐​fetched and irrelevant claim that Trump “compromised the national security of the United States” by holding up aid. But Article I does better at avoiding what I’ve called the “Overcriminalization of Impeachment.” Trying to shoehorn Trump’s conduct into one or more federal statutes invites a hypertechnical debate over federal bribery, extortion, and campaign‐​finance statutes that’s quite beside the point. The president doesn’t have to violate the law to commit an impeachable abuse of power. Historically, according to a comprehensive report by the Nixon‐​era House Judiciary Committee, “allegations that the officer has violated his duties or his oath or seriously undermined public confidence in his ability to perform his official functions” have been far more common than allegations of federal crimes.

In this case, there’s a fairly close parallel between Article I and one of the articles of impeachment that drove Richard Nixon from office (he quit before the full House could vote). The second article of impeachment against Nixon, passed by the House Judiciary Committee in July 1974, focused on abuse of power, and the first item it listed was the administration’s attempts to order up IRS audits on political opponents, including people who worked for or supported his opponent in the ’72 election, Sen. George McGovern. In that case, the notion that the president simply had a high‐​minded interest in rooting out corruption didn’t sell.

The second article against Trump tracks the case against Nixon even more closely. Article II charges President Trump with “Obstruction of Congress” based on his “indiscriminate defiance” of lawfully issued congressional subpoenas in the impeachment inquiry. It draws heavily on the third article of impeachment the House Judiciary Committee passed in July 1974, adopting some of its language verbatim. Like Nixon, Trump “interposed the powers of the Presidency against the the lawful subpoenas of the House of Representatives, thereby assuming to himself functions and judgments necessary to the exercise of the sole power of impeachment vested by the Constitution in the House of Representatives.”

Nixon Article III was the most controversial of the articles lodged against the 37th president, passing HJC by the narrowest margin of the three. But the Judiciary Committee’s Report on the Nixon impeachment made a strong case that Nixon’s defiance was unprecedented and dangerous: of dozens of federal officers who’d been the subject of impeachment investigations up till that time “not one of them challenged the power of the committee conducting the investigation to compel the evidence it deemed necessary.” And Nixon’s obstruction wasn’t nearly as flagrant as the policy of categorical stonewalling Trump announced.

In this case, then, the articles rest on pretty firm constitutional ground. Of course, impeachment is “a mixed operation of law and politics,” and constitutional analysis can only take you so far. In this case, even more than past partisan impeachments, “the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.”