Topic: Law and Civil Liberties

Attending to Business

In today’s Politico Arena, the editors ask:

Is Obama “dithering” on Afghanistan (Cheney) or fulfilling his “solemn responsibility” (Gibbs)?

My response:

President Obama got some adult criticism this week from Dick Cheney, none too soon.  While the risk to American troops in Afghanistan grows, Obama dithers, unable to decide whether to get in or get out — whether to be the one thing the Constitution authorizes him to be, Commander in Chief.  Yet he finds time to fly off to Copenhagen to promote Chicago for the Olympics, to insinuate himself in local political campaigns, to go on “Fox hunts,” yesterday excluding Fox News from the White House pool allowed to interview his executive pay czar, and now, we learn, to slash executive salaries at companies not only partially owned but simply regulated by the government.  Are there no limits to the man’s hubris?

Even the Washington Post this morning, no bastion of free-market fervor, noted that this “represents a signal moment in the history of the American economic experiment,” moving us ever closer to the European model.  But it was Arena contributor Allan Meltzer who yesterday hit the nail on the head:  ”All the noise about pay and pay cuts is part of an effort to divert the public’s attention from the main cause of the mortgage fiasco — the role that Congressman Frank and others had in creating the mortgage crisis by refusing to limit the activities of Fannie Mae and Freddy Mac after 2003.”  That these regulators will be able to calculate the salary that is appropriate to discourage excessive risk-taking is simply comical.

And so we have here a textbook example of modern government:  Obama fails to do or do well what he is authorized to do, yet he strides into matter far beyond his authority — or competence.  He seems not to understand the Constitution he once taught, and more recently promised to uphold.

More Supreme Court Review on the Road

As an update to an earlier post about my speaking schedule this fall, here are my remaining public events through Thanksgiving.  All these events, other than the one on Nov. 3, are sponsored by the Federalist Society (and in some cases co-sponsored by other organizations) and all are open to the public.  As always, if you decide to attend one of the presentations after learning of it from this blog post, please feel free to ishapiro [at] cato.org (drop me a line) beforehand, and do introduce yourself after the event.

Event info after the jump.

Oct. 26 at 12:00pm -  Florida International University Law School (Miami) - Use of Foreign Law in Constitutional Interpretation

Oct. 27 at 12:30pm - University of Miami Law School - Use of Foreign Law in Constitutional Intepretation

Oct. 28 at 12:30pm - University of Dayton Law School - Hillary Clinton and the Emoluments Clause

Oct. 29 at 12:00pm - Northern Kentucky University Chase College of Law - October Term 2009 Overview

Nov. 3 at 12:00pm - Environmental Law Institute (Washington) - Panel on Stop the Beach Renourishment and Judicial Takings

Nov. 4 at 12:00pm - Yeshiva University Cardozo Law School (NYC) - Immigration and the Constitution

Nov. 4 at 3:00pm - Seton Hall University Law School - Debate on the The Chrysler Bankruptcy

Nov. 5 at 12:00pm - Columbia University Law School - Debate on the Use of Foreign Law in Constitutional Interpretation

Nov. 16 at 12:00pm - St. Louis University Law School - Use of Foreign Law in Constitutional Interpretation

Nov. 17 at 12: 00pm - Washington University (St. Louis) Law School - The Looming Danger of Transnational Progressivism

One Nation Under Double Jeopardy

The Senate is about to vote on Defense Department funding with an expanded federal “hate crimes” bill. This well-intentioned piece of legislation threatens to make violations of the fundamental right against Double Jeopardy a routine practice, as federal courts will now have the power to re-prosecute defendants for what are traditionally state crimes.

The House removed language that the Senate put in place to ensure that the “hate crimes” provisions did not stretch to encompass free speech, threatening to attach criminal liability to core rights of free expression.

This expansion of federal jurisdiction guarantees that high profile cases will be retried until a guilty verdict is obtained to satisfy political factions. This politicization of justice will only harm our courts and our freedoms. The Senate should vote down this threat to the fundamental rights of all Americans.

Now for some quick background reading:

‘Reefer Sanity’

Kathleen Parker in the Washington Post:

Arguments for and against decriminalization of some or all drugs are familiar by now. Distilled to the basics, the drug war has empowered criminals while criminalizing otherwise law-abiding citizens and wasted billions that could have been better spent on education and rehabilitation.

By ever-greater numbers, Americans support decriminalizing at least marijuana, which millions admit to having used, including a couple of presidents and a Supreme Court justice. A recent Gallup poll found that 44 percent of Americans favor legalization for any purpose, not just medical, up from 31 percent in 2000.

Read the whole thing.  For more Cato work, go here.

Nice Insurance Company. Shame If Anything Were to Happen to It.

Just days after the health-insurance lobby released a report criticizing the Senate Finance Committee’s health care overhaul (for not expanding government enough!), Democrats and President Barack Obama lashed out at health insurers, threatening to revoke what the Government Accountability Office calls the insurers’ “very limited exemption from the federal antitrust laws.”

Democrats say they’re motivated by the need to increase competition in health insurance markets.  Right.

According to Business Week:

David Hyman, a professor of law and medicine at the University of Illinois College of Law and adjunct scholar at the Cato Institute…considers it unlikely that repeal would fundamentally change the nature of the market. While it might increase competition in some markets, he says, it could actually decrease it in others, such as those where small insurers survive because they have access to larger providers’ data. Changes to the act could therefore hurt smaller companies more than larger ones, he says.

Because the act doesn’t outlaw the existence of a dominant provider but simply prohibits collusion, says Hyman, a repeal would fall short of breaking up existing market monopolies that are blamed for artificially inflating prices. The current move against [the] McCarran-Ferguson [Act], he says, “has more to do with the politics of pushing back against the insurance industry’s opposition to health reform than it does with increasing competition in health-insurance markets.”

Combined with what The New York Times described as the Obama administration’s “ham-handed” attempt to censor insurers who communicated with seniors about the effects of the president’s health plan – the Times editorialized: “the government’s Centers for Medicare and Medicaid Services had to stretch facts to the breaking point to make a weak case that the insurers were doing anything improper” – it’s hard to argue that this is anything but Democrats threatening to use the power of the state to punish dissidents.

When Republicans were in power, dissent was the highest form of patriotism.  Now that Democrats are in power, obedience is the highest form of patriotism.

‘Is Obama Punting on Human Rights?’

That’s today’s Arena question over at Politico.

My response:

This morning, both Bret Stephens, in the Wall Street Journal, and Mona Charen, at Real Clear Politics, catalogue Obama’s silence on human rights – China, Tibet, Sudan, Iran, Burma, Honduras – and his backpedaling from his campaign rhetoric. Meanwhile, Eric Posner, at the Volokh Conspiracy, rightly credits Obama for, among other things, not backing the Goldstone Report and pressuring Spain to water down its undemocratic “universal jurisdiction” statute, even as he condemns the administration, again rightly, for its decision to join “the comically named U.N. Human Rights Council,” bastion of some of the world’s worst human rights abusers.

What’s missing, it seems, is any coherent and systematic approach to those matters. During the Reagan administration I served for a time at State as director of policy for the Bureau of Human Rights and Humanitarian Affairs – now called, interestingly, the Bureau of Democracy, Human Rights, and Labor. Things were simpler during the Cold War. We focused on totalitarian regimes, somewhat less on authoritarian regimes, since people were allowed to leave those. And, yes, realpolitik played at least a part in our thinking, as inevitably it must. But the basic principles were clear: If human rights were to be respected, not simply behavioral but systematic change would be required. And Reagan kept the pressure on, publicly. With the fall of the Berlin Wall, millions saw that kind of change, in varying degrees. But the contrast between totalitarianism and democratic capitalism is less clear today than it was then, and the Obama administration, in both its foreign and domestic policies, is doing little to clarify it.

The promotion of human rights starts at home, with allowing people to plan and live their own lives, not with vast public programs that compel people to live under government planning. And in foreign affairs it requires both private and public diplomacy, quiet and not-so-quiet attention to the conditions that give rise to human rights abuses. That doesn’t mean military intervention to change those conditions. But neither does it mean remaining silent, as the Obama administration too often has. Countless victims of abuse, from Cuba to China and far beyond, have written about how important it was that they knew that the world knew about them: When America speaks, the world listens. But equally important, history demonstrates that regimes that respect their own people respect other people as well. It’s time for Obama to speak out.