Are Three Federalist Society Lawyers Threatening the Supreme Court?

In a monograph released yesterday—but not-quite-technically-endorsed by—the Federalist Society, leading NSA defenders Andrew McCarthy, David Rivkin and Lee Casey appear, Sopranos style, to issue veiled threats to the Supreme Court, warning the justices not put their dirty mitts on the NSA surveillance program, or else.

Here’s some of the evidence:

Page 44: MRC argue that the President has a duty to “fight back” against branches that encroach on his constitutional turf. Specifcially, they say:

the departments were not expected [by the Framers] to take intrusions [on their constitutional authority] lying down … . To the contrary, when the actions of one branch invaded another’s turf, the offended branch was expected to fight back – in truth, was obliged to do so if liberty and constitutional governance were to be vindicated.

Might that duty to “fight back” include a duty by the President (who is constitutionally “preeminent” and “supreme” in foreign affairs, they say) to fight against the incursions of the Supreme Court? Seemingly, the answer is yes, because …

Page 64: The Constitution “contemplates no role for the federal courts in connection with the political judgments whether to conduct surveillance to secure the nation against hostile outsiders.” If the President must “fight back” against other branches’ unconstitutional incursions, and courts have no constitutional authority over surveillance, then MRC seem to be saying the President must fight back not just against Congress but against the Supreme Court.

Page 89: That hint gains more force when MRC conclude by suggesting the Court is the enemy both of security and liberty: “[I]njecting unelected federal judges into the prototypically political arena of foreign intelligence collection,” where “the collective security of the Nation is paramount,” is the “antithesis” of “the protection of the individual and his liberties.” Indeed, (moving on to page 93) “it is not at all clear why Bush administration critics view federal judges as inherently more liberty-conscious than politically accountable executive branch officials.” That’s why, say MRC, “the notion that every single executive activity … has to be checked either by Congress or the judiciary, is absurd.”

In other words, they say, Court interference with the President is unconstituitonal, dangerous to public welfare, antithetical to the preservation of liberty, and simply absurd. The President, in turn, is “obliged” to fight back against other branches when constitutional principle, public welfare, and liberty is at stake. You can fill in the blank spaces: The tenor of the piece is a veiled threat, sotto voce, that the President has the right—indeed the constitutional and even moral duty—to ignore not just Congress but the Supreme Court in its conduct of NSA surveillance.

We are entering a new era of indefinite terrorist crisis. The stakes couldn’t be larger for the principle of judicial supremacy. The Supreme Court faces a tough fight to preserve its role to “say what the law is” and to maneuver the political branches into a settled, agreed-upon framework of twenty-first century security law—made all the more tough by the perilous anti-judicial atmosphere to which Andrew McCarthy, David Rivkin and Lee Casey have now added their own distinctive contribution.

Republicans Need to Relearn How to Govern; Democrats Need New Policy Ideas

Harold Meyerson (Washington Post, May 10) was wrong to conclude that “The emerging Republican game plan for 2006…(reflects) their bankruptcy of ideas.” The Republican problem is not their lack of ideas but that the Bush administration has confused the politics of governing with the politics of campaigning. In 2005, President Bush proposed or endorsed major reforms of social security, taxes, immigration, and tort law. Most of these proposed reforms have not yet been addressed because the Bush administration would not work with Democrats to find a common ground, and the Democratic leadership would not even acknowledge the problems of current law that these proposed reforms would address. The prospect for comprehensive immigration reform is better only because of substantial support among the Democrats.

For all that, it is the Democratic Party that has been bankrupt of appealing policy ideas for the past 30 years. Marty Peretz, the editor of the New Republic, recently remarked that

It is liberalism that is now bookless and dying. Who is a truly influential liberal mind in our culture? Whose ideas challenge and whose ideals inspire? There’s no one, really. What’s left is the laundry list: the catalogue of programs…that Republicans aren’t funding, and the blogs, with their daily panic dose about how the Bush administration is ruining the country.

The policy proposals that are now bubbling up from the congressional Democratic leadership are a grab-bag of old ideas, some of which are remarkably dumb. An increase in the minimum wage is dumb because it reduces the employment of the least-skilled members of the labor force with most of the benefits accruing to secondary workers in non-poor families. An increase in the fuel economy standards is dumb because it reduces the cost of driving and applies only to new vehicles. One proposal that merits serious bipartisan attention is to revive the pay-as-you-go rules on federal spending and taxation that expired in 2002.

In summary, the Bush administration needs to learn how to govern, and the Democrats need to generate some appealing new policy ideas.

Republican Lunacy on Energy

My colleague Peter Van Doren and I wrote an op-ed that was published this morning at National Review Online that rips the GOP for their ideas regarding energy policy. Just when you think the Republicans can’t get any worse, they manage to surprise.

For those tired of all the populist hysteria surrounding gasoline prices, we’ve also got a piece in the Investor’s Business Daily today (subscription only) that presents data on what we term “the hardship price” of fuel. We looked at gasoline prices from 1949 to the present and adjusted for inflation and changes in per capita disposable income. In essence, we ask: How long would a person have to work to pay for a gallon of gasoline today compared to any other year over the past 57? Turns out that gasoline at the moment is less expensive by that metric than it has been during most years over that time. A very nice graphic is provided with the piece.
We’ll have the IBD piece on the Cato website soon.

Sensenbrenner Wants Your Cache

James Sensenbrenner, the same congressman who gave us the “two years in jail for not snitching” bill, now wants to force Internet service providers to keep a database of all the websites their users have visited. The bill leaves it up to the U.S. Attorney General to determine just how detailed those databases should be, but it could include not only detailed logs of websites visited, but of email, encrypted information, and the contents of conversations over VOIP.

Missing the Point

The Bush administration’s self-delusion about the state of the federal budget continues. At a speech at AEI yesterday, Karl Rove claimed that the growth rate in the nondefense, non-security portion of the budget had fallen. Fiscal conservatives who complain about spending are “missing the facts” Rove says. 

Yes “growth rates” are down in this small portion of the budget from the massive growth rates of earlier in the decade. But here, from the most recent federal budget, are the more important facts on Bush’s first five years. Data for fiscal 2006 are Bush estimates (actual 2006 spending is likely to be higher) in billions of dollars. 

2001 federal outlays 

Total: $1,863 

Department of Defense: $290 

Department of Homeland Security: $15 

Total outlays less defense and homeland security: $1,558 

2006 federal outlays

Total: $2,709 

Department of Defense: $512 

Department of Homeland Security: $44**

Total outlays less defense and homeland security: $2,153 

(**Homeland Security spending spikes in fiscal 2006 due to Katrina. To roughly take out this effect, I used the 2007 figure of $44 billion). 

What we have then over Bush’s 5 years is a 45 percent increase in federal spending and a 38 percent increase in spending excluding defense and homeland security. 

Of course, the Bush administration shouldn’t get a free ride for its massive increase in defense and security spending. Pentagon spending is notoriously wasteful, and much “homeland security” spending is either wasteful or properly the responsibility of state governments or the private sector. All added spending sucks more resources out the private economy and the average American’s wallet. 

Oil Unbound

There is a lot of worry in the public domain these days about whether we might be running out of oil.  That shouldn’t surprise - every time the oil industry goes through a boom cycle (and there have been six such price booms since the creation of the industry in the late 19th century), industry analysts and resource prognosticators have warned that, this time, the lights are truly going out. 

The worry, however, is overly broad.  There is virtually no limit to the amount of hydrocarbons available to the economy.  It has been estimated, for instance, that the amount of oil that we could theoretically extract from shale rock in the western United States is about three times as great as the proved reserves of oil in Saudi oil.  Other unconventional sources of oil such as tar sands (now being exploited with gusto in Alberta) promise even more.

But unconventional oil is expensive.  The reason it’s not exploited very aggressively at the moment is that conventional oil is still less expensive to deliver to market.  If conventional oil continues to increase in price - or if the technology related to unconventional oil extraction improves - that might change.

Worries about the depletion of conventional oil - and light crude oil in particular - are better grounded.  But how much better?

To worry about the future availability of light crude is to worry about the future availability of Persian Gulf crude oil in general and Saudi crude oil in particular.  If Saudi fields are running dry, then worries about conventional crude are probably well placed.  If not, then they probably aren’t.

The most credible analyst who’s made the argument that Saudi reserves are overstated and that Saudi Aramco is near a production plateau is Matthew Simmons, author of Twilight in the Desert.  The most impressive criticism of Simmons’ arguments come from energy economist Michael Lynch, who maintains that Saudi production is not even close to reaching its peak. 

Time will tell soon enough who’s right (I’d bet on Lynch), but in the meantime, a new report out today about Arab investments underway in the oil sector suggests that someone forgot to tell OPEC that the wells are running dry.  Of course, one might argue that all that money is necessary just to maintain current production levels.  Maybe - but the increasing production figures coming out of OPEC aren’t figments of the imagination.