NSA déjà vu again

With his usual precision, my colleague Bob Levy, in his latest NSA post, has zeroed in on the basic question I put to him: “How can Congress, by mere statute, restrict an inherent power of a co-equal branch of government?” He grants that the president has inherent powers; but so does Congress, he adds, and if Congress expressly restricts the president’s powers, as with FISA, that “is persuasive when deciding whether the president has overreached.”
 
Not so fast. The problem with that is that the branches are then no longer “co-equal.” Rather, Congress is supreme, the president its mere agent—precisely the point I made in our recent debate when I spoke of Congress’s post-Vietnam rewrite of the Constitution in foreign affairs, much as the New Deal Congress did with domestic arrangements.
 
Bob points more precisely, however, to the Necessary and Proper Clause as the source of Congress’s power over the president. But that clause—to reduce a very complex issue to its essence—was written, in the context of the Articles of Confederation, to enable Congress to give effect to its and the other branches’ enumerated powers. As Chief Justice Marshall said in McCulloch v. Maryland (1819), the clause authorizes means that are “really calculated to effect any of the objects entrusted to the government,” like surveillance for national security purposes. When that power is used “improperly” to restrict the inherent power of another branch, serious separation-of-powers issues arise.
 
Congress does have a power to accomplish that end, however: It’s the power of the purse. It can simply cut off funds for projects—yet even here there are separation-of-powers questions that courts have never resolved. Given that the public seems to support the NSA program by 2 to 1, however, Congress is not likely to do that. This leaves us with Fourth Amendment issues, and as I said last time, that’s the business of the courts.
 
Two quick final points on Bob’s most recent post: First, the “parade of horribles” he presents—detention, tribunals, etc.—raises complex treaty and international law issues that are quite different, requiring separate analysis. Second, the animating sentiment at the time of the founding may have been fear of executive power—return of the king. By the time of the framing, however, after 11 years of experience with self-government, the Framers had a far more subtle understanding. As Madison put it in the Virginia ratifying convention, “The sword is in the hands of the British King. The purse is in the hands of the Parliament. It is so in America, as far as any analogy can exist.”

No Courage Behind Global Warming Convictions

The House is expected to vote as early as Wednesday on a resolution that decries the dangerous threat posed by rising industrial greenhouse gas emissions. The resolution calls for an emissions cap on greenhouse gases as long as (i) the cap doesn’t harm the U.S. economy, and (ii) U.S. trading partners agree to live under a similar cap.

While the Greens are quite exited that the GOP seems prepared to go along with this, these things are called “resolutions” for a reason - they echo promises made on New Year’s Eve. In short, it’s nothing but a statement that the Congress thinks that this would be a good idea, but that they are unprepared (at the moment) to do anything about it.

Does this represent progress for the enviros? Not really. Show me an emissions cap that won’t have a negative effect on the economy and I’ll show you an alterantive reality where up is down, black is white, and rivers are made of liquid chocolate. Now, depending upon the nature of the cap and the regulations attached thereto, the negative economic impact might be very modest or rather signficant. But ruling out caps that have any negative economic impact is to essentially rule out a cap.

Frank O’Donnell, head of the Left’s Clean Air Watch, was not too far off the mark when he was quoted in the subscription trade journal Energy & Environment Daily this morning as noting that “The way [the resolution] is worded, you’d have to be a kook to be opposed to it.” Indeed, who would object to what is in effect an insurance policy with no premium?

If the Greens really think that global warming is serious, they are demonstrating both political and intellectual cowardice by backing pablum like this. All this resolution would accomplish is to allow politicians to claim environmental virtue from empty political gestures.

So why would the enviros provide an easy out for politicians who want to appear Green but not do anything real to advance the Green agenda? Because it’s the best the enviros can do right now. That speaks volumes. This is a resolution that advertises Green political weakness, not Green political strength.

The resolution, then, is pretty meaningless. That having been said, you don’t have to be a “kook” to be skeptical about all the “doom, doom I say” hand-wringing that litters the resolution. That is, unless you think a Vice President of the U.N.’s oft cited International Panel on Climate Change is a kook. And if you do, what does that say about the merit of that much-worshiped body of scientific experts?

Against the “Happy State”

Writing last week in the Telegraph, University of Kent sociologist Frank Furedi argues that “Back in the 1940s and ’50s, the big idea was the Welfare State. Today it is the Happy State.” Furedi, noting that there is more to a good life than mere feeling, is skeptical of the push to apply “happiness research” to politics and policy:

In reality, neither experts nor clever policies can make people genuinely happy. Freud may have been a little cynical when he suggested that his objective was to “convert neurotic misery into ordinary unhappiness”. But he understood that true happiness was an ideal that we pursue but rarely achieve. Nor is that a problem. A good life is not always a happy one. People are often justified in being unhappy about their circumstances and surroundings. Discontent and ambition have driven humanity to confront and overcome the challenges they faced. That is why people like the Controller in Brave New World want us live on a diet of “feelies” and “scent organs”. That is also why we should be suspicious of experts who seek to colonise our internal life.

It’s a thoughtful piece, worth reading.

Topics:

Microsoft and Big Brother

Microsoft has agreed to remain under Justice Department supervision until 2009, to ensure that it continues to be forced to give away its property to competitors. (That is, it will continue “to provide access to Windows communications code that would let competitors write software to link with Windows-powered personal computers with the same facility as servers using Microsoft software.”)

Given the relative success of Microsoft and the U.S. government when it comes to innovation, help for the American economy, and customer satisfaction, it would probably make more sense to put the U.S. government under Microsoft’s supervision until 2009.

NSA Redux

In his latest posting, my colleague Roger Pilon restates several of his arguments in defense of the NSA’s warrantless domestic surveillance.  Each of Roger’s points has been addressed in detail in our recent debate and in my Senate testimony.  For those who prefer a nutshell version of my response, here it is:

Roger asks, “How can Congress, by mere statute, restrict an inherent power of a co-equal branch of government …?”  I do not dispute that the president has inherent powers, especially during wartime.  The question is not the existence, but rather the scope, of those powers.  And because Congress too has wartime powers, an express restriction by Congress, like the FISA statute, is persuasive when deciding whether the president has overreached. 

Indeed, the Constitution specifically authorizes Congress to shape the  president’s inherent powers.  Article I, section 8 empowers Congress to “make all Laws which shall be necessary and proper for carrying into Execution … all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” 

If, as Roger insists, warrantless domestic surveillance is incidental to the president’s inherent powers, so too are sneak-and-peek searches, roving wiretaps, library records searches, and national security letters – all of which were vigorously debated in deciding whether to reauthorize the Patriot Act.  Could the president have proceeded with those activities even if they were not authorized by Congress?  If so, what was the purpose of the debate?  Why do we even need a Patriot Act? 

President Bush has also asserted “inherent powers” to justify military tribunals without congressional authorization, secret CIA prisons, indefinite detention of U.S. citizens, enemy combatant declarations without hearings as required by the Geneva Conventions, and interrogation techniques that may have violated our treaty commitments banning torture.  Are those activities outside the president’s wartime authority?  If not, what are the bounds, if any, that constrain his conduct?

The animating sentiment at the time of the founding was fear of executive power – return of the king.  Against that backdrop, it’s remarkable that the president, with Roger’s apparent approval, now claims to wield unilateral powers with no safeguards – in effect, an irrebuttable presumption of authority, unfettered by Congress or the courts, to do just about anything that he pleases in battling terrorists.

Tax Cut Facts

Congress has just passed a $70 billion tax cut, which extends the Bush dividend and capital gains reductions until 2010. The legislation also provides many taxpayers a further year of relief from the dreaded Alternative Minimum Tax.

Another huge tax cut, right? The Washington Post on May 11 editorialized that the bill would blow “a hole in the federal budget.”

Actually, this tax cut just extends prior cuts and has only a tiny impact on the budget. This bill: 

  • reduces federal revenues over the next five years by just 0.5 percent.
  • represents a small fraction of the budget impact of recent spending increases. This tax cut bill is $70 billion over five years, or just $14 billion per year. Compare that to the increase in total federal spending this year of about $240 billion or more.

Note that the $70 billion estimate is an official ”static” score. In reality, investor tax cuts don’t lose the government that much money because of dynamic feedback effects. As an illustration, consider the capital gains tax cuts of 2003. In 2002, the government received $58 billion in capital gains tax receipts. Congress then cut the capital gains tax rate from 20% to 15%. The result? Annual capital gains realizations have almost doubled and capital gains tax receipts have increased substantially—to about $81 billion by 2006. (See Congressional Budget Office, Budget Outlook, January 2006, p. 92).

NSA: Keeping One’s Eye on the Constitutional Ball

Followers of Cato’s Constitutional Studies department know that my colleague Bob Levy and I have a respectful disagreement over the constitutionality of recently revealed NSA surveillance practices. Consider this the latest installment in that discussion….

In an earlier Cato@Liberty post, Bob finds it “ominous” that the NSA might be “monitoring the content of wholly domestic calls.” But he adds, “When communications from and to a US person in the US are monitored, that’s domestic surveillance, no matter whether the party on the other end is inside or outside of the US (original emphasis).”

I have to disagree. Perhaps Bob thinks that the monitoring of international calls, as we would normally call them (one party outside the United States), is also ominous, because he next says, “Since Bush believes that warrantless domestic surveillance is permissible regardless of FISA’s contrary provisions, we shouldn’t be surprised if the NSA has much more data (including content) than USA Today has uncovered.”

This focus on domestic/nondomestic, pressed by the Bush critics, comes from the language of FISA—and points to yet another problem with the statute. After all, the calls we want most to monitor are those that go to and come from al-Qaeda sleeper-cells in the United States. Insofar as FISA burdens that “domestic” surveillance, it frustrates the very purpose of surveillance.
 
In Nov. 2002, the FISA Court of Review cut through that distinction when it spoke of the president’s “inherent authority to conduct warrantless searches [leaving it open whether inside or outside the United States] to obtain foreign intelligence information,” adding that the “appropriate distinction” to be drawn in balancing the government’s interest against individual privacy interests is between “ordinary crimes and foreign intelligence crimes.” Unlike with the former, where punishment and deterrence are the main purposes, the government’s concern with foreign intelligence crimes, the court said, “is overwhelmingly to stop or frustrate the immediate criminal activity.” It can hardly do that effectively if it has to run to court for a warrant at every turn—nor did the court hold that it had to since that issue was not before the court.
 
The deeper issue with FISA, however, is the constitutional separation-of-powers question: whether Congress has the authority to restrict an inherent power of the president. How can Congress, by mere statute, restrict an inherent power of a co-equal branch of government that has been exercised, with no objection, by every president since George Washington? Congress, by mere statute, can no more restrict the inherent power of a president—or a court, or a state, for that matter—than it can restrict the constitutional rights of an individual. If a line is to be drawn between the power of the president and the rights of the people, it is for the courts to do it. And if the courts will not or cannot do so (because of standing or other such problems), then the matter is ultimately political, not legal.