No Guardrails?

As Tim Lynch and I detail in our new study Power Surge: The Constitutional Record of George W. Bush, the Bush administration has advanced an extraordinarily broad theory of presidential power during the war on terrorism. The claim that shows up again and again—in the torture memos, in the enemy combatant cases, in the wiretapping controversy—is that the president’s “inherent executive authority” and powers as commander in chief allow him to override validly enacted statutes that proscribe tactics he wants to pursue in the war on terror.

But surely there are limits to this theory, boundaries that even a wartime president cannot cross, right? Well, if there are, administration officials have been pretty cagey about identifying them. At a Senate Judiciary Committee hearing in February, Attorney General Alberto Gonzales stonewalled like a Supreme Court nominee when asked about limits to the president’s power. To questions like “Can the president suspend the application of the Posse Comitatus Act legally?” he’d offer only, “Those are very, very difficult questions. And for me to answer those questions, sort of, off the cuff, I think would not be responsible.”

In April, before the House Judiciary Committee, Gonzales suggested that the president has inherent authority to wiretap Americans’ domestic communications–calls and emails where both parties are in the United States–without a warrant. That day, the Justice Department issued a “nonclarification clarification” of the AG’s remarks: “The attorney general’s comments today should not be interpreted to suggest the existence or nonexistence of a domestic program or whether any such program would be lawful under the existing legal analysis.” Anyone looking for a straight answer on limits to “inherent executive authority” would be well-advised to look elsewhere.

A few months back, CBS’s Bob Schieffer decided to ask the president himself: “Do you believe that there is anything that a president cannot do, if he considers it necessary, in an emergency like this?” Here’s the president’s response:

PRESIDENT BUSH: That’s a–that’s a great question. You know, one of the–yeah, I don’t think a president can tort–get–can order torture, for example. I don’t think a president can order the assassination of a leader of another country with which we’re not at war. Yes, there are clear red lines, and–it–you–you–you just asked a very interesting constitutional question. The extent to which a president, during war, can exercise authorities in order to protect the American people, and that’s really what the debate is about.

It’s a very interesting answer, because, as Jacob Sullum pointed out recently, neither example represents a case in which the president considers himself bound by law or by anything other than his own sense of self-restraint. Assassination is barred by an executive order that the president himself could change. As for torture, the administration has never repudiated the theory of uncheckable executive power outlined in the Justice Department’s torture memos. And recently, when President Bush signed the McCain Amendment reaffirming the ban on torture, the president suggested in the signing statement that he could interpret it out of existence if he thought it necessary.

Given all that, Schieffer’s question still stands: in the administration’s constitutional theory, is there anything that a president cannot do, if he considers it necessary? It would be good–or at least clarifying–to have an answer, even if that answer turns out to be “no.”

The Social Security Side-Step

In describing the contents of the Social Security Trustees’ latest annual report, most reporters have described the changes as “minor.” That impression rests, however, on a comparison of a large number with a gigantic number—the present value of Social Security’s financial shortfall over 75 years to the present value of total payrolls, also projected over the next 75 years.

Note that according to the report, an additional 2 percentage points must be added to payroll tax rates immediately and must be kept in place permanently. That’s unlikely, and precisely because we are describing the shortfall as “no big deal.”

Problem is, the cost escalates the longer we wait. How long would we wait? When it becomes as large as four percentage points? Six? No, if it becomes that large, chances are taxpayers would revolt and the system would have to face benefit cuts.

Benefit cuts? At a time when beneficiaries are more numerous and politically powerful? Unlikely. Then what?

Buried inside the report are other, larger estimates of the system’s shortfall—the “actuarial deficit” calculated without a time limit is reported to be $13.3 trillion. Including the outstanding Treasury liabilities to Social Security that must be paid for out of higher income or other non-payroll taxes, the total financial shortfall compared to benefits is a whopping $15.2 trillion. And compared to total future payrolls, this amount equals 3.7 percentage points.

Most reports attached some variant of “let’s not panic, these numbers are very uncertain” to the perpetuity estimates of Social Security’s shortfall.

Not panic? OK. But ignore? That’s effectively the message. If we don’t like the outlook, we should just ignore it. It’s not going to affect us. We’ll collect our benefits well before then, so why bother?

That’s not the advice financial planners would give to an individual or family facing uncertainty in personal finances. Rather, they would recommend purchasing insurance or hedging their portfolios by diversifying assets.

But prudence with personal assets and profligacy with public ones imply a collision course—one that’s unlikely to deliver “social security.”

Someone recently asked: Even if God told us these numbers were correct, what can we do today? After all, we can only distribute future outputs to meet future needs. This reminded me of Jacob and the Pharaohs. In that story, Jacob suggested filling the granaries well before the famines arrived—in other words, saving and investing more today.

Existing institutions—Social Security Trust Funds and such—haven’t worked in that regard. Indeed, the evidence points to the exact opposite outcome: Today’s entitlement programs are inducing us to spend more, work less, and retire earlier than ever before.
Rather than give up on a structural reform of Social Security, our efforts need redoubling.

Max Boot, Oil, and the “Dictatorship Dividend”

In the LA Times today, Max Boot identifies a real problem: oil revenue goes disproportionately to some pretty odious regimes. His solutions, such as “increase federal funding for research and rollout of fossil-fuel substitutes such as hydrogen, cellulosic ethanol (produced from grasses and agricultural waste) and plug-in electric engines,” reflect a touching faith in the ability of the federal government to pick winners among all the potential alternatives to oil out there. He would be on stronger ground if we were to argue “tax the hell out of oil and let’s see what emerges.”

Unfortunately, the cost gap between conventional gasoline and the alternatives is quite steep. Look at Europe for instance. Even with gasoline taxes that put prices at between $5-8 per gallon, we don’t see non-oil transportation fuels penetrating the market in any significant way.

I call this the “wish upon a star” policy. Yes, it would be nice if we could render oil valueless through some sort of concerted government effort. But we have made a number of great and small stabs toward that end over the decades and have nothing to show for it save for bankrupt companies, synfuel stories that no one apparently pays any attention to anymore, and forgotten white elephants like California’s glorious attempt in the early 1990s to produce high performance golf carts to replace the automobile. But alas, hope springs eternal.

If consumers want to strike a blow against “the dictator dividend” associated with gasoline consumption, there’s nothing stopping them. Don’t buy gasoline. Ride a bike. Walk. Tool around in a golf cart. Retrofit your car to run on vegetable oil or “Bio-Willie.” If that’s too much for you, you can always simply cut back on gasoline and shrink the dividend that way. There’s nothing here that government needs to do that we can’t do ourselves—if we really want to go where Boot would take us.

Operation Human Shield

It is not offensive that Congress is planning to spend $70 billion to assist American soldiers in a hostile foreign nation. What’s offensive is that Congress is using those soldiers as human shields to protect $70 billion it is wasting on less defensible priorities.

The spending bill that the Senate is expected to vote on today has been designated “emergency” spending. In effect, that means it doesn’t count toward the spending caps that Congress supposedly imposes on itself.

It has become routine for Congress to meet those caps by packing the regular spending bills with junk and then to spend well beyond those caps by labeling predictable expenditures “emergency” needs. So every $1 billion of Iraq war spending they label as “emergency” allows them to spend another $1 billion on junk.

Talk about war profiteering.

A Right to Experimental Drugs? Yes. No. Maybe.

The D.C. Circuit recently ruled that ”a terminally ill, mentally competent adult patient’s informed access to potentially life-saving … new drugs determined by the FDA after Phase I trials to be sufficiently safe for expanded human trials warrants protection under the Due Process Clause.” You can read more about it here.

 I want to raise a question about the way others are characterizing the case.

Following some of the language of the D.C. Circuit’s opinion, Jonathan Adler and Orin Kerr describe the case as a decision that recognizes a new “right to experimental drugs.” This characterization makes the case sound quite revolutionary. And it raises an interesting problem about how to talk about substantive due process cases. Compare common descriptions of Cruzan v. Director, Missouri Department of Health. There, the Supreme Court upheld a state law that, in effect, prohibited withdrawal of life support from a vegetative patient despite her previously expressed wish to die when in such a condition. (The law forced a surrogate to prove the patient’s wishes by heightened evidence.) But the Court also held that patients have a protected liberty interest in “refusing unwanted medical treatment.” Why then did it uphold state law? Because the Court held that the state interests outweighed the liberty interest at issue on the facts of the case.

Cruzan defies easy categorization. It’s variously described as a case that (1) left the right to die “unanswered”; or (2) recognized a “right to die.” This D.C. Circuit case also defies easy categorization. Relying on the logic of Cruzan, the D.C. Circuit held that patients have a liberty interest in control over their use of life-saving drugs protected by the Due Process Clause. But, whether the state has a sufficiently strong interest to override the liberty interest remains an open question, which the trial court must now consider. Like the state regs in Cruzan, the FDA regulations will be upheld if the government can show the regs serve a narrowly tailored “compelling interest”–what lawyers call “strict scrutiny.” (One way the FDA may try to do so, suggested by Cruzan, is to show that the regs somehow protect patients who don’t understand the risks involved–perhaps by attempting to show that terminally ill patients are poor judges of unknown risks and therefore at high risk of manipulation by doctors and pharmaceutical companies during Phase I trials. See this article for notes toward such an argument.)

In short, you shouldn’t assume that strict scrutiny is always fatal in fact. “Strict scrutiny” tests appear throughout constitutional law, and they are applied with different degrees of rigor: more exacting in some free speech cases, less exacting in equal protection cases. If Cruzan is any evidence, the “strict scrutiny test” applied in the field of substantive due process is a weaker variety. Perhaps there are important differences between the FDA regs here and state regs upheld in Cruzan. But on the face of things, it’s possible the endgame of this decision may leave room for government regulation—or even uphold the FDA regs in their entirety.

This is one reason why I think the Supreme Court–if the case were to be appealed–would be wise to wait until the trial court has balanced the state interests and the liberty interest recognized by the D.C. Circuit. And it is also a reason why pundits should be cautious about describing the case’s real-world effect. The real action in this case may be yet to come.

Nancy Johnson Does Well by Doing “Good”

Sometimes what does not happen is the most important thing in politics.

Nancy Johnson is a twelve-term Republican member of the House of Representatives. But she has a problem. Al Gore in 2000 and John Kerry in 2004 ran better in her district than they did in the nation as a whole. Nancy Johnson, a Republican, represents a district that all things being equal would elect a Democrat.

Nancy Johnson should be facing the fight of her life this fall given the problems of the Bush administration and the general unpopularity of the congressional Republicans. As the New York Times reports (subscription required), she is facing a tough fight. Her opponent has raised some money and is trying to tie Rep. Johnson to President Bush.

But Johnson’s fight for survival will not be as tough as it might have been. Prior to McCain-Feingold passing in 2002, labor unions, corporations and other groups could buy ads that discussed issues in ways critical of incumbent members of Congress. For example, a group could support an ad that said: “Nancy Johnson helped George Bush pass a bad prescription drug plan that helped the Big Drug Companies and hurt our seniors. Call Nancy Johnson and tell her to stop helping the Big Drug Companies and hurting our seniors.”

Not surprisingly, vulnerable Republicans in Congress like Nancy Johnson did not like such ads. Such Republicans provided the crucial support in the House to pass McCain-Feingold, which prohibited labor unions and corporations and other groups from running these ads. So much for free speech, but Nancy Johnson will have an easier race this fall.

But maybe not. After all, Democrats used 527 groups to try to defeat President Bush in 2004. Maybe the 527s could show up in Nancy Johnson’s district saying mean things about the incumbent. But again, maybe not. The House has passed, and the Senate seems likely to approve, a bill that essentially ends the 527 option.

So Nancy Johnson is likely to survive this fall, precisely because her constituents will not hear political speech they might have heard if McCain-Feingold had not been enacted.

Nancy Johnson, by the way, was one of the first House Republicans to support McCain-Feingold.

New at Cato Unbound: Dark Days for Small Government

Today in Cato Unbound, Bruce Bartlett, author of Impostor: How George W. Bush Bankrupted America and Betrayed the Reagan Legacy, agrees with David Frum’s gloomy assessment of the prospects for small government and argues that conservatives and libertarians often compound the problem by failing to understand the magnitude and political intractability of the government’s non-discretionary entitlement programs. Slashing government is not “as easy as waving a magic wand.” Bartlett warns of the danger of resigning in frustration and calls for “a serious debate among libertarians and small government-types on a realistic political strategy for achieving their goals.”

Stay tuned! Ross Douthat and Reihan Salam will comment Friday, and Cato’s David Boaz will round out the replies to Frum with an essay on Monday.