Topic: Government and Politics

As it Turns Out, There Are Limits on Congress’s Power

In 2006, Congress passed the Adam Walsh Child Protection and Safety Act. One provision of the law authorizes the federal government to civilly commit anyone in the custody of the Bureau of Prisons whom the attorney general certifies to be “sexually dangerous.” The effect of such an action is to continue the certified person’s confinement after the expiration of his prison term, without proof of a new criminal violation.

Six days before the scheduled release of Graydon Comstock — who had been sentenced to 37 months in jail for receiving child pornography — the attorney general certified Comstock as sexually dangerous. Three years later, Comstock thus remains confined in a medium security prison, as do more than 60 other similarly situated men in the Eastern District of North Carolina alone.

Comstock and several others challenged their confinements as going beyond Congress’s constitutional authority and won in both the district and appellate courts. The United States successfully petitioned the Supreme Court to review the case.

Cato, joined by Georgetown law professor (and Cato senior fellow) Randy Barnett, filed a brief opposing the government. We argue that the use of federal power here is unconstitutional because it is not tied to any of Congress’s limited and enumerated powers. The government’s reliance on the Necessary and Proper Clause of Article I, Section 8, is misplaced because that clause grants no independent power but merely “carries into execution” the powers enumerated elsewhere in that section. The commitment of prisoners after their terms simply is not one of the enumerated powers.

While the government justifies its actions by invoking its implied power “to establish a federal penal system” — itself a necessary and proper auxiliary to certain enumerated powers — civil commitment is unrelated to creating or maintaining a penal system (let alone any enumerated power). Nor can the law at issue fall under the Commerce Clause, because civil commitment involves non-economic intrastate activity.

As the Supreme Court recognized almost 150 years ago in Ex Parte Milligan, “[n]o graver question was ever considered by this court, nor one which more nearly concerns the rights of the whole,” than the government’s unconstitutional assertion of power against its own citizens. In this spirit, the Court should affirm the Fourth Circuit’s rejection of this blatant government overreach.

United States v. Comstock will be argued on January 12.  You can read Cato’s brief here.

The House Health Care Bill — Transparent or Not?

The House health care bill is reportedly coming to the floor this weekend, and House Speaker Pelosi committed in September to a 72-hour delay between the time the bill is posted online and a final vote.

Is that 72-hour delay happening? Some say yes. Some say no.

On the “yes” side are some folks at the Sunlight Foundation. John Wonderlich wrote a post last Sunday called “72 Hours is Now.” He hailed the posting of the health care bill well in advance of a vote.

“Public outcry, partisan pressure, and rising expectations are forcing Congress’s hand,” he wrote, ”and it’s now (apparently) taken as a matter of course that this bill is online for a long weekend before its final consideration.”

Paul Blumenthal followed that up mid-week, sounding slightly more cautious notes but hailing the posting of the “final manager’s amendment.” His post restarted the 72-hour clock.

Which brings us to the folks who say no.

On the Weekly Standard blog, John McCormack says that Speaker Pelosi plans to violate the promise to post the health care bill online for 72 hours.

House members are still negotiating important issues in the bill — whether it will provide taxpayer-funding for abortions, for example. Pelosi is pushing for a Saturday House vote, and a number of big changes will be introduced, likely less than 24 hours before the vote takes place (if in fact it does).

Did Pelosi promise to post a bill? Yes — and she did, when it was pretty near final.

Meanwhile, though, the really tricky details — the stuff that matters to a lot of people — are still being hammered out. The spirit of the 72-hour pledge remains unfulfilled.

And this reveals a weakness in H. Res. 554, the preferred reform of the Sunlight-backed ”Read the Bill” effort. It would install a House rule giving bills 72 hours of online airing “before floor consideration.”

Floor consideration can and regularly does include the adoption of a “manager’s amendment” which can revamp a bill wholesale or add and subtract key details — things that matter.

H. Res. 554 has a loophole you can drive a truck through, and Speaker Pelosi is revving her engines.

This episode is a good, if regrettable, illustration that “self-reform” by a branch of government isn’t reliable. “Read the bill” is a good idea, but the genius of President Obama’s parallel “Sunlight Before Signing” pledge to hold bills coming out of Congress for five days before signing them is that it is based on interbranch rivalry. Especially, but not only, when there is partisan division between the president and Congress, competition among branches will promote the practice.

(More on “Read the Bill” and “Sunlight Before Signing” here.)

Getting Congress to hold up its own legislation for 72 hours, giving meaningful access to the public of every detail, is asking Congress to be altruistic. And Congress is anything but altruistic.

Big Business Not Investing

In a recent post, I argued that while third-quarter GDP was positive, the underlying data revealed that U.S. private investment was still in the toilet. While government spending might be providing a short-term “sugar high” for the economy, U.S. business investment remains in recession. I speculated that Obama’s anti-business agenda is likely one cause of the problem.

For those observations, economist Brad DeLong called me an “utter fool.”

Let me draw your attention to an article in the Washington Post today entitled “Corporate giants sit on piles of cash.” Nucor Steel is sitting on piles of cash that it is unwilling to invest. Nucor’s chief executive Daniel Dimicco explains:

Everything is still on hold because we don’t have a lot of confidence that the right things are being done in Washington to reinvigorate the economy.

To story goes on:

Nucor isn’t alone. The balance sheets of large U.S. corporations are for the most part in good shape. Many big companies have piles of cash on hand and credit markets have thawed so that they can raise new funds… But most U.S. executives lack enough confidence in the economy to expand their businesses.

The article explains how big businesses are “jittery” for various reasons, such as memories of last year’s credit crunch. It doesn’t mention President Obama’s policies, but at this point in the economic cycle when world growth is returning, the lack of excitement by U.S. businesses regarding domestic investment is very curious.

Unfortunately, the Obama administration is giving them nothing to get excited about. The President is promising them higher health care costs, higher corporate taxes, more labor regulations, higher energy costs with cap-and-trade, and a lack of interest in further trade agreements.

The Post article says that some U.S. multinationals are using their hoards of cash to invest abroad, allowing them to avoid punitive treatment under the high-rate U.S. corporate income tax.

How do we get U.S. multinationals to start investing their “piles of cash” in the United States? Cut the U.S. corporate rate permanently to 15 percent, as I’ve described in Global Tax Revolution. With just about every other advanced economy having slashed their corporate rate in recent years, we are “utter fools” for not following suit, especially with the unemployment rate now topping 10 percent.

Tea Party Conservatism and the GOP

This morning, Politico’s Arena asks:

Is Tea Party conservatism a help or a hazard for Republicans seeking a return to power?

My response:

Let’s start with some clarity:  “Tea Party conservatism” stands for several things, but it is not the caricature one often finds in the mainstream media, to say nothing of the left wing blogs.  It is a movement with deep historical roots, drawing its name and inspiration from the Boston Tea Party of 1773.  As with that event, taxes brought it to the fore – on Tax Day, April 15.  But taxes are simply the most obvious manifestation of modern government run amok, insinuating itself into every corner of life.  Trillions of dollars of debt for our children, out-of-control government budgets, massive interventions in private affairs – the list of wrongs is endless, and under Obama has exploded.  He stands for nothing if not for making us all dependent on the government he has promised us.  That’s not America.  That’s a foreign vision, which over the centuries countless millions have fled, searching for freedom.

To be sure, the Tea Party movement has its fringe elements, as did the revolt against British tyranny, which the establishment of its day disparaged.  So too does the Obama administration, some of whom have already resigned.  The basic question, however, is what does the movement stand for?  What are its principles?  And on that, the contrast with the Obama vision is stark:  However much confusion there might be on specific issues, which is to be expected, the broad principles are clear.  The Tea Party movement stands for limited constitutional government.  At its rallies, on hand-written sign after sign, that was the message repeatedly seen.  These are ordinary Americans – Republicans, Independents, and even Democrats – who want simply to be left alone to plan and live their own lives.  They don’t want “community organizers” to help empower them to get more from government.

But they do need to be organized to bring that about – to get government off their backs.  And the Republican Party should be the natural vehicle toward that end – the party, after all, that was formed to get government off the backs of several million slaves.  But today’s Republican Party is a mixed lot:  Some understand those principles; but others, as in the NY 23 race, are all but indistinguishable from their counterparts in the party of Obama.  The problem in NY 23 was not that a third party entered the race.  Rather, the party establishment botched things from the beginning, by picking a nominee who properly belonged in the Democratic Party, as her pathetic last-minute endorsement indicated, and that’s why a third party entered the race – with a novice of a nominee who nearly won despite the odds against him.

The question, therefore, is not whether Tea Party conservatism is a help or a hazard for Republicans seeking a return to power?  To the contrary, it is whether the Republican Party is a help or a hindrance to the Tea Party movement?  It will be a help only if it returns to its roots.  The mainstream media, overwhelmingly of the Democratic persuasion, will continue to push Republicans to be “moderate,” of course – meaning “Democrat Lite” – to which the proper response is:  Why would voters go for that when they can get the real thing on the Democratic line?  If Tuesday’s returns showed anything, it is that Independents, a truly mixed lot, are up for grabs; but at the same time, they are looking for leaders who promise not simply to “solve problems” but to do so in a way that respects our traditions of individual liberty, free markets, and limited government.  When Republican candidates stand clearly and firmly for those principles, they stand a far better chance of being elected than when they temporize.  That is the lesson that Republicans must grasp – and not forget – if they are to return to power.

One Year Later

This morning, Politico’s Arena asks:

“Election 09: What’s the message?”

My response:

A note on NY 23, then to the larger message in yesterday’s returns. Already this morning we’re seeing an effort to spin the NY 23 outcome as a warning to Republicans and a hopeful sign for Democrats. Yet the striking thing about that outcome is how close a third-party candidate came in the face of opposition from the Republican establishment. And the ultimate outcome can doubtless be explained simply by absentee ballots, plus voters unaware of the last-minute developments in the race.

Thus, given those factors, the NY 23 outcome is perfectly consistent with returns in the rest of the country. (In fact, Conservative and Republican votes in that race total more than 50 percent.) And the message will not be lost on blue-dog Democrats. If the internal inconsistencies of ObamaCare did not trouble those Democrats before yesterday, they surely must now. The silence coming from the White House last night spoke volumes.

Hail, Bloomberg, Magister Populi

New York mayor Michael Bloomberg has been elected to a third term, despite the two-term limits that New Yorkers voted for twice. His biggest challenge was persuading the City Council to overrule the voters, but he managed that trick thanks to his absolute mastery of money and politics in the Big Apple. And on election day, even his $100 million campaign barely overcame popular anger over the repeal of term limits.

Personally, I wish the Council had just given Bloomberg another term. Don’t get rid of term limits. Just do like the Romans used to do in an emergency. Name Bloomberg “dictator,” an extraconstitutional position with extraordinary authority but limited duration. Then you keep the rules, you just make an exception. And I’m sure Bloomberg would be willing to be addressed as Dictator for the duration of the emergency powers.

Instead, Bloomberg used his money and connections to get the Council to allow all the city officeholders to serve three terms, instead of the two that the people had twice voted for.

He said it was because of the financial crisis – just as Rudolph Giuliani had suggested that the city shouldn’t elect a new mayor in the aftermath of 9/11. Of course, as Nicole Gelinas of the Manhattan Institute has shown, New York’s revenues rose 41 percent between 2000 and 2007, while spending increased even faster, so it’s not clear why he’s the man you need in a financial crisis.

But the plutocrat mayor used his personal wealth – and the city’s tax dollars – to pressure people to support his bid to stay in office. Last year the New York Times reported:

The mayor and his top aides have asked leaders of organizations that receive his largess to express their support for his third-term bid by testifying during public hearings and by personally appealing to undecided members of the City Council. …

The requests have put the groups in an unusual and uncomfortable position, several employees of the groups said. City Hall has not made any explicit threats, they said, but city officials have extraordinary leverage over the groups’ finances. Many have received hundreds of thousands of dollars from Mr. Bloomberg’s philanthropic giving and millions of dollars from city contracts overseen by his staff.

Sounds like a lot of overlap between his personal philanthropy and the city’s own spending, and the Times doesn’t seem to find anything odd about that aspect of the story. And then the New York Post found that the mayor’s tax-funded “slush fund” was being enlisted in the campaign, too:

Mayor Bloomberg showered cash on key City Council members with the power to kill a term-limits extension bill in the last year.

Members of the council’s Government Operations Committee have received millions from Hizzoner’s slush fund, a once-secret pot of taxpayer money the mayor doles out to favored lawmakers for their pet causes….

Five members of the committee secured $3.1 million from the $5.3 million stash in Bloomberg’s 2008 budget. Only three other council members received funds from the mayor in the last year.

And the New York Daily News noted that everyone working for Bloomberg at the City Council hearings is on Mayor Mike’s payroll one way or another:

There was the mayor’s legal counsel and the city’s corporation counsel, both paid with tax dollars, testifying that Bloomberg can and should get another term.

There were aides from the mayor’s Community Assistance Unit, who rounded up pro-Bloomberg speakers from the community and religious and civic groups they work with all day long – many of which thrive on city grants.

There were the dozens of “Ready, Willing and Able” guys from the Doe Fund, which gets funding from the city – and used its vans to bring people to the hearing.

That’s why – to return to my Roman theme – union boss Dennis Rivera came to praise Bloomberg, not to bury him, at a recent campaign event. Hail Bloomberg, Magister Populi, Magister Urbi.

Don’t Copy Europe’s Mistakes

In this new video, Eline van den Broek of the Netherlands needs only about four minutes to explain why government-run healthcare in Europe is a mistake and why the problems in the U.S. healthcare system are the result of too much government, not too little.

The only thing I don’t like about this video is that I fear people may no longer want to watch the ones I narrate.