Topic: General

Trump Isn’t Only “Constitutional Crisis” Afflicting Congressional Oversight

Earlier this week, Vox’s Sean Illing asked 10 law professors whether President Trump’s sweeping refusal to cooperate with congressional investigators has plunged the nation into “a constitutional crisis.”  I recommend the article, and I also observe that I’m 100% on Congress’s side regarding the legitimacy of its information queries. Indeed, I’m with my colleague Gene Healy, who has rightfully Tweeted that, “#ExecutivePrivilege is something judges just made up out of penumbras and emanations of Article II.”

For this post, however, I argue that congressional oversight, per se, is in its own state of “constitutional crisis” wholly independent from Trump. Specifically, I will make two claims. First, I explain why congressional oversight always has been sub-optimal. Then, I explain why contemporary oversight is acutely awful.

Even decades ago, when Members of Congress were policy savants relative to now, congressional oversight was known as the body’s “neglected duty.” In a famous 1984 article, Professors Mathew McCubbins and Thomas Schwartz lent a conceptual framework to explain this inadequacy. Their core insight was to identify two types of congressional behavior regarding oversight. The first was the “police patrol,” which describes ongoing monitoring of the law’s execution. The second type was “fire alarm” oversight, by which the professors meant that lawmakers snap to attention only when hot-button issues become sufficiently politicized.

Quite obviously, the “police patrol” method is superior because, if it is done faithfully, then such supervision could head off the crises that lead to “fire alarms.” Nevertheless, the “fire alarm” approach takes less work, and it reaps more political currency in the form of attention. Due to these incentives, Congress has underinvested in oversight for as long as legislators have delegated power to execute the law.

In this manner, oversight was shortchanged in Congress during the first three quarters of the Twentieth Century. Back then, however, a decentralized power structure within the legislature provided a counter-incentive for the use of preferable “police patrol” techniques. As I explained in a prior post, Members of that period cared about policy because policy chops were necessary to succeed in Congress. At that time, committees and subcommittees competed with the president to manage administrative agencies, and, as with life generally, competitors do their homework.

Starting in the 1980s, however, power in Congress shifted from committees to party leadership. Many factors were at play in causing this change. Crucially, congressional leaders, such as Reps. Tip O’Neil and Newt Gingrich, altered the rules to facilitate centralization. The modernization of mass media played another important role, in that it allowed to party leadership to push a national message. Finally, recurrent impasses with the president over spending and budgets—known as the “fiscalization” of politics—facilitated the centralization of power by creating the necessity for high-level negotiations, which, naturally, would be conducted by congressional leaders and thereby enhanced their power accordingly.

Due to this shift, partisan affinity now trumps institutional prerogative, such that one party loses interest in oversight whenever “their guy” occupies the White House. Also due to the shift to centralized power, Members of Congress know less about policy-making because there’s little incentive to have such knowledge. Each of these factors works to undermine the occasion and performance of “police patrol” superintendence of the administrative state.

Yet the current contretemps between Congress and the Trump administration reveals that the legislature’s oversight function has withered further, such that “fire alarm” investigations, too, are falling by the wayside. To be precise, they’ve altered from an inferior form of oversight (relative to “police patrols”) to a worthless form.

Historically, “fire alarm” oversight pertained to catastrophes or governing scandals. In either case, the investigatory lodestar was reform. That is, congressional investigations traditionally sought to discern how something bad happened, and then how to try to make sure it doesn’t happen again. Even investigations that don’t easily fit this usual framework—such as Watergate—shared a nexus with governmental reform. Nixon’s excesses inspired institutional responses, including the 1974 Budget and Impoundment Control Act and the 1977 Legislative Reorganization Act.

As I survey the current landscape of fire-alarm investigations, I see a qualitatively different application in the present day. When it comes to resource allocation for oversight, I can think of any number of “fire alarms” to sound, including:

  • The reported possibility of war (!!) with Iran;
  • The president’s declaration every other day of a fake “national emergency” to get what he wants without Congress getting in the way; and,
  • The EPA sneaking a major New Source Review regulation into the (unrelated) revision of an Obama-era climate rule.

Despite these—and many more—worthy targets for serious congressional oversight by opponents of the Trump administration, House leadership is pouring resources into getting Trump’s tax returns and relitigating the Mueller Report. I find Trump as off-putting and dangerous as anyone, but these strike me as the silliest possible subjects for oversight.

On the one hand, I think these investigations don’t inform anyone. Who doesn’t think Trump would fire subordinates—and then Tweet about it—to head off an investigation? And who doesn’t think Trump exaggerates his wealth all the time? Notwithstanding these qualities, which are baked into Trump’s brand, the American people elected him president, alas. The upshot is that I’m not convinced that these investigations bring much new to the table.

More importantly, I fail to see any prospect for reform. Neither of these investigations bears any relationship to a specific policy outcome. It’s all about Trump, the man, and none about Trump, the policymaker. Nor am I sanguine about the prospect that these investigations ultimately could inspire institutional reforms the way that Watergate did. Well into the third year of this presidency, I have not once seen the democrats reach out to Never-Trumpers to explore curbing the power of the office. Instead, the majority in the House seems to want only to damage Trump politically, and otherwise maintain the president’s power for when their party takes control.

In sum, I wholeheartedly support Congress’s right to information from President Trump, but I also bemoan its present use of that right.

DC Vouchers: Bang for the Buck

Standardized test scores aren’t what they used to be. From A Nation at Risk in 1983 to Common Core around 2010, they were close to exclusively how we assessed whether students and schools were succeeding. But over the years the monomaniacal focus on test scores increasingly grated on schools and families, and with the Common Core threatening to put everyone on the road to the exact same standards and tests, there was a political revolt. At about the same time an empirical revolt was brewing, with increasing evidence that schools’ test scores may not correlate all that well with other important outcomes, ranging from college attendance to health. Which brings us to the latest evaluation of the Washington, DC, voucher program.

After the first two reports in the three-installment series found negative test score effects it was easy to be disappointed, even while realizing that test scores are very cramped measures, and the DC voucher program was functioning in a district where choice, once you add in charter schools and choice among traditional public schools, was the norm. Choice is still the norm—78 percent of students who applied for vouchers but did not receive them nonetheless went to schools other than those to which they were assigned—but now test scores for DC voucher students are statistically indistinguishable from those of applicants who did not receive vouchers.

So DC vouchers are a test-score wash. But they are a plus in many other areas, including reducing chronic absenteeism (see chart above), increasing student satisfaction, and making students feel safe. Meanwhile, they have no overall negative impacts. And all this at a fraction of the cost of traditional DC public schools. The voucher cap is $9,022 for grades K-8 and $13,534 for 9-12, while traditional DC publics spend around $27,000 per student.

All in the world of school choice test scores is not good – see the most recent assessment of Louisiana’s particularly troubled voucher program. But more and more we are seeing that test scores are not the super-measures we thought—or at least acted like—they were, and school choice is—and must be—about much more.

A New Tool for Not Thinking

Yesterday the White House created a new tool to solicit information from people who believe they are victims of politically biased content moderation by social media companies. How will this work in practice? 

Some people will adopt a Bayesian approach to the new information coming from the tool. That is, they will critically assess the validity of the new information and update their prior belief about say, bias against conservatives at the tech companies. Let’s say you believe the companies are not biased against conservatives in their content moderation. Do the stories garnered by the new White House tool make your prior belief more or less probable?

Others will adopt a more political approach. That is, if the new information confirms their prior view about bias, they will affirm that prior belief. If it does not support their prior view, they will ignore the information. This approach to new information is sometimes called confirmation bias. It is a very popular approach, especially in the District of Columbia, though it has fans throughout the world.

For my part, I believe the new White House tool will make government regulations of speech on social media slightly more likely. But if the election of 2020 turns out to be more hysterical than I now think it will be, I am willing to update that belief.

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Highways: Devolution Revolution Needed

Former Ohio Governor John Kasich paves the way for sound thinking on highways in his new Wall Street Journal op-ed. Eliminate most of the federal gas tax, ditch unneeded federal regulations, and let the states fund their own highways.

Unfortunately, it appears that Congress and the White House are heading toward a $2 trillion federal spending plan. That’s getting it wrong. Getting it right would require returning money and control back to the states.

… Any new plan should shift control of infrastructure funding to states and municipalities, letting them directly manage their needs and establish their own priorities. That was the aim of a bill I sponsored in 1998 as a member of Congress.

… Instead of sending gas-tax money to Washington, which keeps some and returns only part of the money to the states, Congress should end the program. Scale back the 18.4-cent-a-gallon federal levy to a few cents a gallon, leaving enough money to maintain the interstate system and oversee other safety concerns. With the bulk of the tax eliminated, states would be responsible for levying their own taxes to build and maintain their transportation systems. States would regain control and stop losing money to Washington.

Washington could also help by removing regulations that prohibit state-collected tolls on interstate highways and keep states from privatizing rest areas. States need more options to finance infrastructure improvements, and drivers would get more value for their gasoline-tax dollars.

Congress will be considering legislation next year to reauthorize highway and urban transit programs. The two key reforms should be: 1) Kasich-style devolution of most highway funding and spending, and 2) elimination of all federal funding, spending, and control over urban transit. There is no proper federal interest in urban transit. Indeed, federal subsidies are a key reason why most big cities have bloated, inefficient, mismanaged, unionized, government-owned bus and rail systems.

More on transit here, highways here, and infrastructure here.

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Free Download: The Banned Malay Edition of ‘Islam without Extremes’

In September 2017, I gave a public lecture in Kuala Lumpur, the capital of Malaysia, championing freedom of consience. I said religion must be based on free choice and “it should not be policed.”

The next day, the Malaysian “religion police,” or Jawi, arrested and interrogated me for “teaching Islam without permission from the state.”

Thanks to some behind-the-scenes diplomacy, Jawi soon released me. But based on their report, the Malaysian Home Ministry banned my book, Islam without Extremes: A Muslim Case for Liberty, along with its Malay-language edition, Islam Tanpa Keekstreman: Berhujah Untuk Kebebasan.

The publisher of the book, the Islamic Renaissance Front, which had hosted me in Malaysia for that eventful lecture in 2017, took the case all the way to the nation’s High Court. However, in April 2019, the High Court upheld the ban, suggesting, “the contents of the book are likely to be prejudicial to public order and interest and likely to alarm public opinion.” 

With all due respect to the Malaysian authorities, I find this authoritarianism ridiculous. The most shocking idea in my book that can “alarm public opinion” is that Islam should not be coerced. Or, as the Qur’an says, “There should be no compulsion in religion…” (2:256) If there is something alarming in this whole scene, it is the very banning of such reasoned arguments on crucial matters about the practice of Islam in the modern world.

But neither I nor the Malaysian authorities should have a final word on any of this. It must be up to Malay Muslims who are interested in the topic and who have the right to make up their mind.

Therefore, with the generous permission of the Islamic Renaissance Front, I have decided to share the Malay edition of my book, Islam without Extremes, here on the Cato Institute website. All Malaysians - and of course everybody else - are welcome to download Islam Tanpa Keekstreman: Berhujah Untuk Kebebasan and read it for themselves:

CLICK HERE TO DOWNLOAD THE FREE PDF OF ‘ISLAM TANPA KEEKSTREMAN’

 

Criminal Obstruction vs. Impeachable Obstruction

Earlier this month, the effort to impeach President Trump looked like a #Resistance fantasy. The release of the Mueller Report seems to have shifted the debate dramatically. This week, Democratic presidential contenders Sen. Kamala Harris and Sen. Elizabeth Warren called on the House to impeach Trump for obstruction of justice.  

Is obstruction of justice an impeachable offense? Yes. It’s one of the few offenses where we have presidential precedent. Obstruction charges played a central role in two of the three serious presidential impeachment cases in American history, forming the basis for Article I of the charges against Richard Nixon, and Article II  against Bill Clinton. 

Should President Trump be impeached for obstruction of justice? I’m not going to answer that question here; like the cagey Mayor Pete, I’m “going to leave it to the House and Senate to figure that out.” Instead, I want to stress something that should be obvious, but tends to get lost amid the statutory exegesis in Mueller Vol. II: whether the president is guilty of criminal obstruction and whether he’s guilty of impeachable obstruction are different questions. 

Summing up Article I of the case against Nixon, the 1974 House Judiciary Committee report explained that

President Nixon’s actions…. were contrary to his trust as President and unmindful of the solemn duties of his high office. It was this serious violation of Richard M. Nixon’s constitutional obligations as president, and not the fact that violations of Federal criminal statutes occurred, that lies at the heart of Article I [emphasis added].

The Judiciary Committee report on the Clinton impeachment echoed that analysis a quarter-century later: “the actions of President Clinton do not have to rise to the level of violating the federal statute regarding obstruction of justice in order to justify impeachment.” 

The standards are different because impeachment and the criminal law serve distinct ends and have very different consequences. “The purpose of impeachment is not personal punishment,” the Judiciary Committee emphasized in its 1974 staff report on “Constitutional Grounds for Presidential Impeachment”; instead, impeachment’s function “is primarily to maintain constitutional government.” And where the criminal law deprives the convicted party of liberty, a successful impeachment mainly puts him out of a job

I’ve complained before about “the overcriminalization of impeachment,” the widespread tendency to confuse impeachment with a criminal process. Congress has contributed to that confusion by offloading much of its responsibility for policing executive misconduct to special prosecutors. Mueller wasn’t tasked with looking into “high Crimes and Misdemeanors”; his brief was to probe “federal crimes committed in the course of, and with intent to interfere with, the Special Counsel’s investigation.” Naturally, then, the report speaks in the language of the criminal law.

But impeachment aims at fundamental breaches of the public trust, and therefore, as Alexander Hamilton put it, “can never be tied down by such strict rules” as operate in the criminal law. In an impeachment proceeding, the key question isn’t whether the president technically violated one or more of the federal obstruction statutes. It’s whether his transgressions are serious enough to justify removal from office. 

That sort of inquiry is, in many ways, less forgiving than the criminal law approach. Though the Constitution nowhere specifies a particular burden of proof for impeachment, “criminal prosecutions require that the government prove guilt beyond a reasonable doubt in a proceeding in which the defendant enjoys many significant procedural protections.” As Michael Rappaport has observed, “a criminal prosecution model underenforces against executive misconduct, because it ignores noncriminal misconduct that may justify dismissing an executive official,” such as “‘high Crimes and Misdemeanors,’ which need not constitute violations of criminal or civil law.”

A prosecutor needs to prove every element of a statutory offense: a generalized showing of contempt for the rule of law won’t suffice. It’s fair game in impeachment, however. “Unlike a criminal case,” the Nixon Inquiry Report explains, “the cause for the removal of a President may be based on his entire course of conduct in office. In particular situations, it may be a course of conduct more than individual acts that has a tendency to subvert constitutional government.”  

In other important respects, however, an impeachment inquiry can be more lenient toward the accused. “Not all presidential misconduct is sufficient to constitute grounds for impeachment,” the Nixon Inquiry Report emphasizes: “There is a further requirement—substantiality.” Impeachment should “be predicated only upon conduct seriously incompatible with either the constitutional form and principles of our government or the proper performance of constitutional duties of the presidential office.” Even provable, criminal obstruction will not meet the standard of “high Crimes and Misdemeanors” in every case.

For instance, when viewed through the lens of the criminal law, the case against Bill Clinton was quite strong. Here’s Judge Richard Posner’s assessment, from his 1999 book on the Clinton impeachment, An Affair of State:

To summarize, it is clear beyond a reasonable doubt, on the basis of the public record as it exists today, that President Clinton obstructed justice, in violation of federal criminal law, by (1) perjuring himself repeatedly in his deposition in the Paula Jones case, in his testimony before the grand jury, and in his responses to the questions put to him by the House Judiciary Committee; (2) tampering with witness Lewinsky by encouraging her to file a false affidavit in lieu of having to be deposed, … and (3) suborning perjury by suggesting to Lewinsky that she include in her affidavit a false explanation for the reason that she had been transferred from the White House to the Pentagon.

After the Senate trial, however, multiple senators explained their votes to acquit in terms of substantiality: that although obstruction could, under certain circumstances, merit removal, the offense in this case wasn’t grave enough to justify that penalty. There’s no “it was about sex” defense to a charge of criminal obstruction, but in an impeachment trial, what—if anything—the president was trying to cover up matters.

In Trump’s case, the Mueller Report outlines a (lackluster and inept) cover-up without an underlying crime. As the Report reminds us, “proof of such a crime is not an element of an obstruction offense”—for the purposes of a criminal conviction, it doesn’t matter whether there’s an underlying crime. But for the purposes of an impeachment, arguably, it should. 

On the other hand, what’s in the Mueller Report is only part of the picture. As a group of prominent conservative attorneys and academics put it in a public statement released Tuesday: 

The report’s details add to an existing body of information already in the public domain documenting the President’s violations of his oath, including but not limited to his denigration of the free press, verbal attacks on members of the judiciary, encouragement of law enforcement officers to violate the law, and incessant lying to the American people.  We believe the framers of the Constitution would have viewed the totality of this conduct as evidence of high crimes and misdemeanors. 

 An inquest based on the president’s “entire course of conduct in office” could be a lot less forgiving.  

 

Brown v. Board Did Not Start Private Schooling

A common refrain in opposition to school choice is that choice is rooted in racial segregation. Specifically, that people barely thought about choice until the Supreme Court’s 1954 Brown v. Board of Education decision required public schools to desegregate, and racists scrambled to create private alternatives to which they could take public funds. I have dealt with this before and won’t rehash the whole response (hint: Roman Catholics), but a new permutation popped up on Vox yesterday, with author Adia Harvey Wingfield asserting:

Prior to Brown v. Board of Education, most US students attended local public schools. Of course, these were also strictly racially segregated. It wasn’t until the Supreme Court struck down legal segregation that a demand for private (and eventually charter and religious parochial) schools really began to grow, frequently as a backlash to integrated public institutions.

Kudos to Prof. Wingfield for making clear that many public schools were “strictly racially segregated,” which often seems to be soft pedaled when linking choice to segregation. But her assertion that private schooling didn’t “really” begin to grow until after Brown is not borne out by the data. As the chart below shows, while the share of enrollment in private schools spiked in 1959, the growth in private schooling didn’t suddenly increase right before that. In 1889—the earliest year available— the private school share was 11 percent, dipping to 7 percent in 1919, then pretty steadily rising until the 1959 peak. (Note, the earlier years of the federal data are in ten-year increments. Also, data include pre-K enrollments.)

History is clear that private education has long been with us, and while it has certainly at times been used to avoid racial integration, it has also been employed for reasons having nothing to do with that. This remains true even in our relatively modern era in which “free” public schools have crowded out many private options.

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