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.
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?
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.
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.
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.
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.
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.