Mulvaney’s Plan to Reform the Government

President Trump’s Office of Management and Budget (OMB) has released a “Comprehensive Plan for Reforming the Federal Government and Reducing the Federal Civilian Workforce.” The 14-page memo from OMB director Mick Mulvaney creates a process for executive branch leaders to produce a detailed plan to cut the government. The final plan will be included in the fiscal year 2019 budget a year from now.

The core of the process is that the president is requiring federal agencies to prepare Agency Reform Plans by this September, with draft plans due June 30. Agencies must come up with downsizing “proposals in four categories: eliminate activities, restructure or merge, improve organizational efficiency and effectiveness, and workforce management.” Agencies “should focus on fundamental scoping questions (i.e. analyzing whether activities should or should not be performed by the agency).”

Some of the factors that agencies should consider when doing their “fundamental scoping” are whether activities are nonessential, whether they violate federalism, and whether they would flunk a cost-benefit test. Agencies should propose eliminating activities that do not pass muster on these and other criteria.

Director Mulvaney is trying to get federal bureaucracies to reconsider all of their activities in a bottom-up manner. The downsizing process he has launched will include actions that the president and agencies can take administratively, and reforms that will need legislation passed by Congress.

Aside from pushing agencies to identify savings, the OMB will work over the next year to propose and implement crosscutting reforms that affect all agencies. One theme in the memo is the need to cut the federal civilian workforce. The memo encourages agencies to implement near-term cuts and to develop plans to reduce workforces over the next four years. The memo is right that “technology may have changed or eliminated the need for some positions.”

The memo provides a good framework for pursuing federal downsizing. Some agencies will probably drag their heels and try to include just minor-league reforms in their plans. But the OMB will be overseeing the development of the plans, and will hound agencies to think big. It will also be important for the administration to fill top positions in agencies with leaders who have a zeal for cutting.

Support from congressional Republicans is also needed. The reform effort will be undermined if members simply whine and grumble when the administration suggests trims to their favored programs. When Trump’s “skinny budget” was released in March, the response of Senate Majority Leader Mitch McConnell was to announce that he would not allow cuts to an obscure $120 million pork barrel program that favors his state. But if the party leader selfishly rejects such a tiny cut, how does he expect any other member to accept cuts to any of the programs they favor?

If the Trump-Mulvaney budget reform effort is to be successful, we are going to need congressional leaders to act as actual leaders. And that means putting the broad public interest in spending control ahead of narrow parochial interests.

Mick Mulvaney’s press briefing on the new plan is here.  

For comments on previous OMB reform actions, see here, here, here, and here.

A Stable Spending Catechism

Although it has gained many converts since 2008, thanks especially to tireless crusading on its behalf by Scott Sumner, David Beckworth, and Lars Christensen, among other “Market Monetarists,” the suggestion that the Fed ought to stabilize, not the inflation rate, or employment, but the growth rate of overall spending on goods and services, still strikes many people as odd, if not positively barmy.

Being, as it were, a sort of Market Monetarist avant le letter  (for I first came to regard a stable level of overall spending as the sine qua none of a sound monetary regime while writing my dissertation ages ago), I naturally find the monetary policy credos of bona fide Market Monetarists as incontestably appealing as apple pie and baseball are to most full-blooded Americans.

My particular understanding of the case for stable spending is, nonetheless, mine alone, and as such somewhat distinct from that of my Market Monetarist brethren. So I thought I might venture, with all due humility, to try my hand at conveying that understanding to those curious but skeptical unbelievers among my cherished readers, by way of an imaginary exchange of questions and answers, where the questions are the unbelievers’, and the answers are my own.

Bad Timing for a Carbon Tax

Last week, The Washington Post reported an “administration official” indicated the Trump White House was considering a new tax on carbon dioxide emissions. This seems incredible for a number of reasons.

It’s never a good time to champion a brand new tax, and recent science developments make it seem an especially bad one. A year ago lower atmospheric temperatures peaked with the big (and natural) El Niño. This temporarily wiped out the recent “pause” in warming that shows up in so many records. But now those temperatures are in rapid decline, with the March satellite readings back down to their pre- El Niño values. If they stay in that range for several months, the pause will be back.

If that happens, there will be no net lower atmospheric warming all the way back to 1994—almost a quarter of a century ago.

Even without another hiatus in warming, the disparity between forecast and observed warming will continue to grow.

People are now beginning to realize that there are other problems with the computer models with serious climate implications. There is a big one lurking in the bottom 50,000 feet of our atmosphere. These models all predict that the upper portion of this zone in the tropics should be warming even more than the surface. But the “tropical hot spot” simply refuses to show, as pointed out last month by University of Alabama’s John Christy, in testimony before the House Science Committee.

Observed (green) and predicted (red) warming rates from near the surface (bottom of chart) the stratosphere (above the top data point). The difference between predicted and observed changes in the high altitudes are in the range of an entire order of magnitude. The weather implications are discussed in this post.

Weak Legal Pretext for Trump’s Drive-By Tomahawking

I’m beginning to understand why Cato’s Michael Cannon is frequently found tearing his hair out over Politifact, the Tampa Bay Times project ostensibly devoted to “sorting out the truth in politics.” When I look at how badly they’ve botched issues involving constitutional war powers, I feel his pain.

On Friday, the fact-checking organization weighed in on the legal debate over President Trump’s April 6 bombing of a Syrian airfield, with two essays concluding it was A-OK, constitutionally. “In some cases, people saying Trump needed congressional approval have gone too far” Politifact’s Lauren Carroll pronounces. For instance, Rep. Marc Pocan’s (D-WI) claim that there’s “no legal basis” for the strikes rates a full-on, needle-in-the-red “FALSE” on P-fact’s patented “Truth-o-Meter.” Tom Kertscher of Politifact Wisconsin asserts that: “For limited military activities like the missile strike, presidents can send in forces without approval from Congress.” You see, while the president may not have the legal authority to unilaterally launch a full-scale war, he can—if he thinks it’s a good idea, and assures himself it won’t bog us down—order up acts of war that don’t rise to the level of war: a light dusting of cruise missiles—a micro-aggression, constitutionally speaking.

What’s the legal basis for that? Politifact takes nearly 2,000 words to explain it all to you, but their answers are pretty thin: 1. Maybe the commander-in-chief clause?; 2. Other presidents have gotten away with stuff like this in the past; 3. Their lawyers say it’s ok; and 4. the 1973 War Powers Resolution “creates a process to act first and ask for permission later.” I rate those claims 1. False; 2. Irrelevant; 3. Nice try; and 4. Pants on Fire. 

Per Kertscher, “Experts agree that in limited instances, such as the Syrian missile attack, a president has legal authority provided in the Constitution as commander-in-chief.” But that clause, as Hamilton explained in Federalist 69, merely makes the president “first General and admiral” of US military forces, and does not extend “to the DECLARING of war.” And “experts” who believe it empowers the president to launch sudden attacks in the absence of an imminent threat are in the minority. Over at the Lawfare blog, Fordham’s Andrew Kent sums up the legal consensus: “at the core of the question—under the original meaning of the Constitution, who has the power to decide to initiate foreign war, the president or Congress?,” he writes, “the weight of evidence now tilts so strongly toward one view that the debate should be considered over. Under the best reading of the original understanding of constitutional war powers, President Trump’s strike on Syria was patently unconstitutional.”

That the strike was “limited,” and not the opening salvo in a full-scale war doesn’t make a constitutional difference. If it did, leading war powers scholar Michael Ramsey asks, then “why did virtually everyone in the immediate post-ratification era think that limited naval warfare, as against France in the Quasi-War, required Congress’ approval?” That included the bellicose, pro-executive Hamilton, who acknowledged that for President Adams to go beyond defensive acts protecting American shipping would “fall under the idea of reprisals & requires the sanction of that Department which is to declare or make war.” Our first president even doubted his authority to take unilateral action against hostile Indian tribes, writing that “The Constitution vests the power of declaring war with Congress; therefore no offensive expedition of importance can be undertaken until after they shall have deliberated upon the subject, and authorized such a measure.”

More Family-Based Immigrants in Australia & Canada than in the United States

The United States’ immigration system favors family members over workers.  About two-thirds of all green cards issued annually are to immigrants whose qualification for being here is their relationship to American citizens or other green card holders.  This is in contrast to countries with so-called merit-based immigration systems that favor skilled immigrants, such as Australia and Canada.  Only 24 percent and 31 percent of annual immigrants to those two countries, respectively, gained permanent status through family connections.  Comparing the composition of the immigrant flow obscures important differences in immigration policy: Canada and Australia allow in many more immigrants than the United States does as a percentage of the population.

The United States allows in about a million lawful permanent residents a year, the largest number of any country, but that is a small percentage of the almost 325 million people who already live in the United States – about 0.3 percent annually.  By comparison, Australia Canada each allow in about 250,000 immigrants a year but they are much smaller countries with about 23 million and 35 million residents, respectively.  Thus, as a percentage of their populations, the annual inflow of immigrants into Canada and Australia is significantly larger than in the United States.  The annual number of immigrants to Australia is equal to 1.1 percent of the Australian population while the annual number to Canada is equal to about 0.7 percent of the Canadian population, which makes them 3.5 and 2.4 times as open to immigration as the United States, respectively (Figure 1).  If the United States were to copy Australia or Canada’s merit-based immigration policies, our government would admit about 2.3 million to 3.5 million immigrants annually.     

Figure 1

Immigrant Inflow as a Percent of Population, 2013

 

Sources: OECD, EuroStat, E-Stat, Citizenship and Immigration Canada

April 8, 1952: President Truman Seizes The Steel Mills

This week marks the 65th anniversary of what was to become a turning point in constitutional history, President Harry S. Truman’s order seizing the nation’s steel mills during a labor dispute. Allen Pusey has an article on the episode at the ABA Journal

The case was to result in the Supreme Court’s 6-3 decision later the same year in Youngstown Sheet & Tube v. Sawyer, rebuking Truman for his lawless action. It was one of American history’s key wins for the successful assertion of a Constitutional rule of law that binds the executive branch as against claims of inherent emergency power.

But Truman’s audacious behavior was itself based on the adventures in Caesarism of earlier presidents going back at least to Woodrow Wilson, and especially those of his immediate predecessor, Franklin D. Roosevelt. Among other wartime acts of seizure defended on national security rationales, Roosevelt had sent in armed troops on Dec. 27, 1944 to seize (on grounds of defiance of war labor advisories) the Chicago-based catalog and retail company Montgomery Ward. Known for its clothes and household items, Montgomery Ward was almost no one’s idea of a vital war industry. But its head, businessman Sewell Avery, had made himself a leading thorn in FDR’s side in opposition to the President’s New Deal policies. A famous photo showed Sewell Avery being carried bodily out on the street by military men while sitting in his executive chair. 

Truman’s lawyers pointed to the various earlier seizures to back their view that a President simply must possess such powers as chief executive and commander in chief, certainly in wartime. (The Korean War was in progress.) Pusey: 

…the government pressed the issue of constitutional authority. Before an astonished federal judge, lawyers argued that a president has unlimited power in a national crisis and the power to define that crisis. That executive authority had been ratified, they said, by decades of judicial silence on the matter.  

Judge David A. Pine’s ruling was blunt: “Apparently, according to [the government’s] theory, several repetitive, unchallenged, illegal acts sanctify those committed thereafter. I disagree.”

When the case reached the high court, it was the concurrence by Justice Robert Jackson – himself a New Dealer – that was to go echoing down as one of the Court’s great pronouncements: 

The example of such unlimited executive power that must have most impressed the forefathers was the prerogative exercised by George III, and the description of its evils in the Declaration of Independence leads me to doubt that they were creating their new Executive in his image. Continental European examples were no more appealing. And if we seek instruction from our own times, we can match it only from the executive powers in those governments we disparagingly describe as totalitarian. I cannot accept the view that this clause is a grant in bulk of all conceivable executive power… 

This is a story that could easily have had an unhappy ending. Truman apparently expected to win the showdown, and the Court itself was full of New Dealers, many of whom had shown much deference to the government. Instead, the steel seizure cases came to stand as a milestone in constitutional law, making clear that claims of emergency, even in wartime, do not justify whatever assertions of arbitrary power a President may care to make. That’s worth celebrating these many years later. 

Targeting Gun Owners Is Unconstitutional

California law generally bans the possession of a gun within a school zone. For many years, however, both retired peace officers and those with a license to carry concealed weapons were exempted from this ban. Then in 2015, a bill was proposed that would have eliminated both of these exceptions. But after extensive lobbying by interest groups aligned with federal workers and police officers, the bill was amended to remove only the exception for concealed-carry licensees.

Dr. Ulises Garcia is one such license holder, who obtained his license after receiving threats against himself from a former patient. After the change in the law, Garcia can no longer carry his weapon for protection when attending school events with his family. Garcia and a group of other plaintiffs have sued, arguing that the differing treatment afforded to retired peace officers and concealed-carry license holders violates the Fourteenth Amendment’s guarantee of the equal protection of the laws. The federal district court rejected their claims, and they have now appealed to the U.S. Court of Appeals for the Ninth Circuit. Cato has filed an amicus brief supporting Garcia and urging that the district court be reversed.

In rejecting Garcia’s equal-protection arguments, the district court fundamentally erred in its application of an important Supreme Court test. Legislation that treats two groups unequally must be struck down if the enacting legislature was motivated by an impermissible purpose. This includes enacting a law solely to harm a politically unpopular group at the expense of a popular and powerful one. Yet despite plenty of evidence that this is exactly what occurred here, the district judge dismissed the “improper motivation” claim in a single paragraph, writing that the court could not find evidence of bad motives in the “legislative history of the Act” and that it could not rule for Garcia without “evidence of explicit legislative intent to cause harm to civilian gun owners.”

This approach dangerously narrows the universe of evidence that judges must examine to determine legislative motivation. As we explain in our brief, the Supreme Court has consistently examined all available evidence in this search, not just the narrow record produced by legislative history. Relying only on floor statements and committee reports, as the district court did, would allow legislators to easily hide their true motivations by simply holding their tongues. Actions speak louder than words, and in this case the actions of the law itself are evidence that its true motivation could not have been good-faith policy concerns.

When the Ninth Circuit hears Garcia v. Becerra later this spring, it should apply the correct test, examine all available evidence, and strike down this unequal treatment of a politically unpopular group.