Toughman Contest

U.S. News has an interesting profile of David Addington, Vice-President Cheney’s chief of staff and top legal adviser—a key player in administration debates over torture, domestic detention, and NSA surveillance. One thing that stood out for me was this description of the social dynamic at work when administration lawyers crafted War on Terror policies:

Whether or not he became the de facto leader of the group, as some administration officials say, Addington’s involvement made for a formidable team. “You put Addington, Yoo, and Gonzales in a room, and there was a race to see who was tougher than the rest and how expansive they could be with respect to presidential power,” says a former Justice Department official. “If you suggested anything less, you were considered a wimp.”

For background on the legal theories that emerged from that environment, see here.

Congress’ Sudden Concern for Overly Aggressive Policing

While the leaders of Congress were wringing their hands over a corrupt colleague having his office raided by FBI agents in suits, a drug task force in Wisconsin needlessly terrorized two completely innocent people last night. From Dodgeville, Wisconsin:

Members of a drug task force burst into a Dodgeville apartment Monday night and arrested two people before officers realized that they were in the wrong apartment.

Richland-Iowa-Grant Drug Task Force members entered the apartment about 10:15 p.m. and arrested its two occupants in what police considered a “high-risk” drug bust, according to the Dodgeville Police Department. Minutes later, they realized that they were in the wrong place and released the occupants.


Task Force Director Lt. Scott Marquardt said the task force was reviewing what led to the accidental arrests. He said the task force was sorry for what happened to the innocent neighbors.

“We’re very disappointed,” Marquardt said. “We regret the stress and the inconvenience that we caused. That’s not how we do business.”

From research I’ve done for a forthcoming Cato paper, I’d estimate these types of “wrong door” raids are reported in the media 2-3 times per month in the U.S. (it’s likely that they happen and go unreported much more frequently). Most of the time, victims escape with no worse than a broken door and a fractured psyche. Many times, they end up injured. And once or twice a year, an innocent person ends up dead.

With its tireless support for the drug war, and its policy of making surplus military equipment from the Pentagon available to local police departments, Congress is responsible for an explosion of SWAT teams across the country, and a massive increase in the number of times these teams are deployed on such “no-knock” raids. Drug warrant service now comprises the overwhelming majority of SWAT team “call-outs” in America.

So before congressional leaders fret over the “unduly aggressive,” “intimidating” raid of a sitting member’s office, they ought to look into how their own policies have led to police kicking down the doors of dozens of innocent or nonviolent drug offenders in their homes each day in this country.

They could start by Googling “Alberta Spruill,” “Clayton Helriggle,” or “Alberto Sepulveda.”

Trimming Government for Dummies

Polls show voters generally believe the federal government is not on the right track. Runaway spending is a chief concern.

A new report shows “extensive fraud” at Fannie Mae.

Options for the GOP Congress:

(a) Forget this news story and look for creative ways to increase popularity with likely voters. Maybe a congressional resolution that will call for Barbaro’s speedy recovery.

(b) Act on today’s report. Issue scores of news releases denouncing fraud.

(c) Schedule a hearing after the summer recess “to get to the bottom of these allegations.”

(d) Trim the government. Now.

Memo to Congress: Choose (d). It would be good politics and good policy.

Memo to the White House: If Congress chooses (d), this would not be the right moment for Mr. Bush to use his veto for the first time. That would be bad politics and bad policy.

Don’t Tread on My Legislative Privilege

Tongue implanted in cheek, David congratulates Congress for finally finding an illegal exercise of executive power to condemn: an FBI raid on Rep. Jefferson’s offices. However, congrats may be premature, because it’s not entirely clear whether the raid is illegal.

(Usual warning: Lengthy lawyer parsing follows. Proceed at own risk. Short version: there are some good arguments that the FBI raid is illegal, but the case law is far from clear on this point.)

The Speech and Debate Clause provides:

Senators and Representatives … shall in all Cases, except Treason, Felony, and Breach of Peace, be privileged from Arrest during their Attendance at the session of their respective Houses, an in going to and returning from same; and for any other Speech and Debate in either House, they shall not be questioned in any other Place.

Jefferson is under investigation for bribery. Congress itself has expressly made it a crime for members of Congress to accept bribes (18 U.S.C. s. 201). The Supreme Court has held (in United States v. Johnston, 383 U.S. 169 (1966)) that the Speech and Debate Clause does not absolutely immunize members of Congress from prosecution under a valid bribery statute (enacted, remember, by Congress).

To be sure, the Court held that some acts are “immune” from prosecutorial snooping even under a valid bribery statute—that is, they cannot constitute part of the evidence on which the prosecution relies. But, the Supreme Court has held this immunity applies only to the following: (1) “legislative acts”—those generally done in the process of enacting legislation” (United States v. Brewster, 408 U.S. 501, 514 (1971), which includes making speeches on the floor of a House of Congress or in committee, voting on the floor or in committee, contributing to reports entered into the legislative record; (2) other acts that are “integral” to deliberation connected to legislative acts. (Gravel v. United States, 408 U.S. 606, 625 (1972)).

That means a host of legislative business unrelated to enactment of specific legislation—from petitions to agencies on behalf of constituents, to ordinary constituent meetings, to speeches in the home district, at Washington galas, or what have you—are not privileged “legislative acts” and therefore can serve as a basis for prosecution. That also means preparation that goes into these sorts of activities also isn’t privileged. The upshot: many papers and effects contained in Jefferson’s office might be searchable by federal investigators pursuant to a valid warrant. (Caveat: I haven’t pursed the allegations against Jefferson).

Assuming they are searchable, that doesn’t settle the conditions on executive entry onto the physical grounds of Congress, on which these papers are located. The privilege appears to attach to acts, not places. Hence the grounds of Congress themselves aren’t privileged. And the Constitution doesn’t tell us the conditions attached to executive entry into the Houses of Congress, pursuant to a valid warrant.

I haven’t yet seen any recent cases on this point, although I confess I haven’t done much searching. In ordinary Fourth Amendment law, searches of homes, for example, are subject to different rules than searches of cars or searches of persons on the street. For example, police must knock and announce themselves prior to executing a valid search warrant for a domicile. It seems reasonable that some restrictions on entry should also apply when police are seaking evidence related to non-legislative acts on the grounds of (the “home” of) Congress.

That’s consistent with the cases on legislative privilege: Arguably, for example, Congress’s institutional control over the physical integrity of the grounds of Congress is essential to legislative deliberation. Surely, for example, unannounced raids or, say, the fear of unknown FBI bugs and wiretaps could chill legislative deliberation. These concerns suggest the legislative privilege requires an analogue to the knock-and-announce rule. For example, perhaps executive officers should notify House or Senate leadership and Capitol police of intent to execute a valid search warrant prior to entering Capitol grounds. Since separation of powers concerns come into play, there may be an argument that more should be required than would be required in an ordinary domicile search: perhaps, for example, congressional leadership may require executive officers to be accompanied by Capitol police, at least absent exigent circumstances.

I’m not sure whether it would require even more than this (for example, require Captiol police themselves to execute the search). Arguably, participation of Capitol police may be essential to the institutional integrity of Congress and therefore to legislative deliberation, but exclusive congressional control over all aspects of investigation on Capitol grounds isn’t. And, after all, the Framers—by exempting certain crimes from the privilege of arrest—clearly intended to balance institutional integrity of Congress with the larger principle that no branch is above the law and its offices.

Inconvenient Facts on Currency

Earlier this month, the Treasury Department released its semiannual “Report to the Congress on International Economic and Exchange Rate Policies.” The report’s key conclusion, that China is not a currency manipulator, was met with incredulity on the part of a number of members of Congress, some of whom suggested that Treasury’s “inaction” would move Congress closer to enacting provocative legislation to compel China to allow the yuan to rise.

The belief fueling this get-tough rhetoric is that the undervalued Chinese yuan is the primary cause of the $200 billion U.S. trade deficit with China, and that appreciation of the Chinese currency will restore greater balance of trade. But here’s a novel idea: before expending more energy grandstanding about the impact of the insidious yuan, devotees of the currency conspiracy theory might first attempt to validate their premises by looking at the relationships between other currencies and our respective bilateral trade balances.

What they would find is that other factors, such as changes in relative incomes and wealth, might play a more significant role than currency values in determining trade flows. For example, the U.S. dollar declined by 30 percent against the Canadian dollar between 2002 and 2005, yet the U.S. deficit with Canada increased by 58 percent. The dollar depreciated by 32 percent against the euro over the same period, and the deficit with the 12 euro-using EU countries increased by 33 percent. Likewise, the greenback decreased by 14 percent against the Japanese yen over the period, yet the deficit with Japan increased by 18 percent.

Of our 10 largest trade partners (which account for 75 percent of U.S. trade), eight have free-floating currencies (Malaysia’s and China’s are tightly managed). The currencies of seven of those eight appreciated against the dollar over the period of 2002 through 2005 (only the Mexican peso declined relative to the dollar). Despite pronounced dollar depreciation, the U.S. bilateral deficit increased with respect to 7 of those 8 countries (it decreased slightly with Taiwan).

What is so tiresome about the strident rhetoric from Congress is that it doesn’t stand up to simple analytics. The staffs of Senators Schumer and Graham must have access to some basic trade data and a pencil sharpener. Assuming they do, they might also notice that U.S. exports to China are soaring in 2006. First quarter figures from this year show a 39 percent surge in exports over the same period last year, which far exceeds the 14 percent growth in total U.S. exports and the 17 percent growth in U.S. imports from China.

Yes, the yuan has actually appreciated by about 4 percent since last summer, and greater currency flexibility is in China’s interest. But U.S. export growth is more a function of rising Chinese incomes than of relative price changes caused by currency movements. After all, U.S. exports to China grew at a rate five-times faster than exports to the rest of the world between 2002 and 2005, a period during which the yuan-to-dollar ratio was almost entirely constant.

In other words, U.S. exporters should and do welcome rising Chinese incomes. Punitive sanctions, such as the 27.5 percent tariff under consideration in the Schumer-Graham bill, would stunt Chinese income and choke-off access to our fastest-growing major export market. Congress should get out of the way and allow economics to run its course.

Ironic side note: Of the 33 countries to which U.S. exporters have sold over $1 billion worth of products so far this year, the two fastest growing markets from the same period last year are China (39%) and the United Arab Emirates (91%), both countries that have been so warmly embraced by Congress in recent months. That’s no way to treat the customers.

How to Pay Directly for Health Care

A New York Daily News column by “money coach” Jean Chatzky shows consumers that it is possible to comparison-shop for health care services. Chatzky notes some of the resources available to patients:

[Health care] prices are starting to emerge. Private insurers like Aetna have started programs in parts of the country (Cincinnati is an early example) where they’ll publish online the exact prices they’ve negotiated with doctors in the area for hundreds of medical procedures and tests…

Healthgrades, which is the largest provider of quality information on doctors and hospitals, is now publishing information on 55 different surgeries and procedures and what they cost on average, in total, across the country…

Chatzky offers patients the following advice:

Price Shop… Get the difference between the list price (what doctors and hospitals bill for, on average) and the discounted or negotiated price that a health plan negotiated (which you and your insurer typically share). These prices can be hugely different.

Negotiate… 70% of adults who talked with a hospital say they were successful in negotiating a lower price for their medical bills… 61% who negotiated with a doctor were successful…

Ask About Cheaper Options. There are often less costly choices to what the doctor has prescribed…

And last. If you’re one of the 40 million people without health insurance, you should know that one of these high deductible plans may in fact make insurance affordable for you.

Chatzky even tells the story of Cato board member Lew Randall, whose doctor recommended a less-expensive barium X-ray (instead of an MRI) when Randall noted he would be paying cash. “If it were my shoulder, that’s what I’d have,” the doctor said. Randall saved $900 on that visit alone.

Health savings accounts have passed an important milestone now that consumer advocates are debunking the myth that health care is too complicated for consumers to be making their own decisions.