January 9, 2020 10:04AM

How to Make Congress Great Again

As I’ve argued repeatedly, Congress is a shell of its former self.

In last Sunday’s Washington Post, Paul Kane made the same point specifically with respect to Congress’s upper chamber. He wrote:

The Senate tasked with holding President Trump’s impeachment trial would be unrecognizable to most of its predecessors … By almost every measure, today’s Senate is the least deliberative in the modern era of a chamber that bills itself as the world’s greatest deliberative body.

Congress’s weakness threatens liberty because it reflects a breakdown of the Constitution’s structural check on overbearing government. In modern America, policy flows from regulatory agencies known in the aggregate as the “administrative state.” From 1995 to 2017, the executive branch issued over 92,000 rules, compared to 4,400 laws enacted by Congress.

Over the last forty years, alas, Congress abandoned oversight of the agencies it had legislated into existence. Meanwhile, the president’s grip over administrative policymaking tightened with each successive administration.

With Congress M.I.A., the president has become the policymaker‐​in‐​chief at the head of the administrative state. Indeed, the presidency has become so powerful that one of the two parties in Congress — roughly half the legislature — loses interest in executive overreach whenever “their guy” occupies the White House.

Our constitutional system of separate and competing powers — a bulwark for liberty — is dangerously out of whack. Which raises a crucial question: What do we do about it?

In the latest issue of InFOCUS quarterly, I offer a menu of options to “Make Congress Great Again”:

So, how do we make Congress great again?

Congress might be compelled to get its act together, even if it doesn’t want to.

For almost 80 years, the Supreme Court has refused to police how much power Congress transfers to the executive branch … [Yet] [f]or the first time since the New Deal‐​era, a majority on the Supreme Court has expressed a willingness to revisit the nondelegation doctrine. Were the Court to add teeth to its “intelligible principle” test, then Congress would be forced to curtail the breadth of its delegations to the executive branch.

Turning from the Supreme Court to Congress, there are many institutional reforms that the legislature could take to empower itself vis‐​a‐​vis the presidency.

Starting with the easiest measures, Congress could remedy its anemic staffing. In fact, the current level of committee staffing is commensurate with levels from the early 1970s, even though government has grown much larger and more complex in the five decades since.

Congress also could create new institutions to better compete. In the early 1980s, the president unilaterally established the Office of Information and Regulatory Affairs (within the Office of Management and Budget) to manage regulations out of the White House. Yet Congress has no commensurate capacity. There is an obvious need for Congress to create its own comparable mechanism to oversee agency rules.

Congress could adopt simple legislative fixes. For example, lawmakers used to regularly limit the clock on their delegations, such that an agency’s regulatory authority expired after a given time. These “sunset” provisions force Congress to periodically review the programs it creates, before these regimes are re‐​authorized.

Or lawmakers could make greater use of “resolutions of disapproval,” which allow them to veto individual regulations … 

If it wanted to get bold, Congress could pass more comprehensive reform. The Regulatory Accountability Act, for example, would require agencies to better justify rules that cost more than $100 million.

And if Congress wanted to regain the upper hand in one fell swoop, the House and Senate would get behind the REINS Act, which would require both chambers of Congress to approve all major regulations before they took effect.

These reforms are fantastic ideas, to be sure, but they’re all nonstarters for as long as love of party trumps institutional pride in Congress. You can lead a horse to water, but you can’t make it drink. Even were Congress to pass REINS, no doubt the House and Senate could find a way to avoid accountability.

Most likely, we need a new type of lawmaker, one who is cut from old cloth …

Read the whole thing here.

January 8, 2020 3:05PM

8 People Died in Immigration Detention in 2019, 193 Since 2004

An important portion of President Trump’s immigration enforcement policy is immigrant detention. Immigrants who are apprehended at the border or in the interior of the United States are detained in Immigration and Customs Enforcement (ICE) facilities until they are removed from the United States. In recent months, many reports have surfaced of immigrants who have died while in detention or shortly after being released to medical facilities for treatment. The rate of death in ICE detention facilities is an important metric of how humane those facilities are.

There are two primary pieces of data required to calculate the death rate in immigration detention: The number of people in detention each year and the number of deaths. Immigration and Customs Enforcement (ICE) runs all of the detention facilities and they provide the number of deaths and admissions. The American Immigration Law Association provides some more recent numbers of deaths in detention, but I only include those that ICE also counts. The admissions into ICE detention facilities variable is closest to the number of unique individuals who were present in a detention facility in each year. The numbers for both variables run through the end of Fiscal Year (FY) 2019.

Eight people died in immigration detention in FY2019, down from 10 in FY2018. During the same time, the number of admissions into ICE detention facilities increased from 396,488 to 510,854 (Table 1). The FY2019 death rate in ICE immigration detention was 1.6 per 100,000 detainees, a 38 percent drop from FY2018. That’s good news, but is likely the result of so many younger asylum seeker with fewer health problems being detained along the border rather than improved detention conditions.

Table 1

Deaths in ICE Detention, Death Rates, Detentions

Fiscal Year

Deaths

Death Rate (per 100,000 detentions)

Detentions

2004

28

11.9

235,247

2005

21

8.8

237,667

2006

19

7.4

256,842

2007

12

3.9

311,169

2008

11

2.9

378,582

2009

14

3.7

383,524

2010

8

2.2

363,064

2011

10

2.3

429,247

2012

8

1.7

477,523

2013

9

2.0

440,557

2014

6

1.4

425,728

2015

7

2.3

307,342

2016

10

2.8

352,882

2017

12

3.7

323,591

2018

10

2.5

396,448

2019

8

1.6

510,854

Total

193

3.3

5,830,267

Sources: ICE and Author’s Calculations.

Figure 1 shows the total number of ICE detentions and the total number of deaths in custody. The deaths in ICE detention facilities were highest during the George W. Bush administration at 91 total deaths with an average rate of 6.4 per 100,000 per year. Those death rates fell rapidly after FY2004, the first full year when ICE was operational, from 11.9 per 100,000 detainees to 2.9 per 100,000 detainees in 2008. The death rate rose 26 percent during the first year of the Obama Administration in 2009, then started falling again the next year with an average annual death rate of 2.3 per 100,000 detainees during his entire presidency. We only have data for three years of the Trump administration where the annual death rate is 2.4 per 100,000 detainees, which is well below the 2.7 per 100,000 death rate during the first three years of the Obama administration.

Figure 1

ICE Detentions and Deaths in Detention Facilities

Fig2ICEdeaths

Sources: ICE and Author’s Calculations.

This excellent study of death rates in ICE detention gives three reasons for why death rates fell so much during the Bush years and remained low thereafter. The first is that the length of time that immigrants spent in detention fell, which means there was less opportunity for each individual to die even though more were in detention. The second was that ICE increasingly relied on Secure Communities and local law enforcement to first arrest illegal immigrants and then transfer them to ICE. Local law enforcement agencies typically provided any healthcare that the immigrants needed before being transferred to ICE or, tragically, many of them died in local law enforcement custody. The third is that ICE medical policies and practices improved over time. 

Even though the number of people in ICE detention is increasing, the chance of dying in immigration detention is on a generally downward long‐​term trend that has been stable for the last several years.

January 8, 2020 2:03PM

Trump the Decider

The MQ‑9 Reaper attack that took out Iranian General Qassim Suleimani was a drone strike for peace, President Trump explained last week: we took action “to stop a war. We did not take action to start a war.” That’s a theory, and it’s going to be put to the test. “All is well!” the president tweeted last night as a salvo of Iranian missiles fell on U.S. positions in Iraq: “So far, so good!”

Trump’s decision to target Suleimani — a figure described as the Iranian equivalent of “an American Vice President, chairman of the Joint Chiefs and CIA director rolled into one” — wasn’t the first time the U.S. government has aimed lethal force at a top government official. There’s the checkered — and occasionally absurd — history of the CIA’s Cold War assassination attempts, including the Kennedys’ efforts to kill Fidel Castro. But we’ve also gone after legitimate targets in congressionally authorized wars: the downing of Admiral Yamamoto’s plane in WWII and the attempted decapitation strike against Saddam Hussein at the start of the Iraq War.

Pow.

Ready. Fire. Aim.

The Suleimani killing was something new under the sun. It marked the first time an American president has publicly ordered the assassination of a top government official for a country we’re not legally at war with.

This is where you’re supposed to acknowledge that the Quds Force commandant was an evil guy who got what he deserved. Done. But that’s got nothing to do with whether the move was wise or constitutionally permissible.

U.S. forces took out Suleimani “at the direction of the President,” per the Pentagon’s announcement. On what authority, exactly? For now, the official rationale is classified. In terms of public justification, all we have is some hand‐​waving by Trump’s national security adviser about the president’s “constitutional authorities as commander in chief to defend our nation” and the 17‐​year old Authorization for the Use of Military Force in Iraq (2002 AUMF). Neither comes close to vesting the president with the power to set off a whole new war.

The 2002 AUMF authorizes the president to use military force in order to “defend the national security of the United States against the continuing threat posed by Iraq” and enforce various UN resolutions “regarding Iraq.” Unless “45” is going to break out the presidential sharpie and change the “q”s to “n”s, that’s not going to cut it. Neither will the 2001 AUMF, as I’ve explained at length elsewhere (See: “Repeal Old AUMFs and Salt the Earth”).

If and when the administration deigns to reveal its legal theory, the argument will probably be: (1) the AUMFs license our continuing presence in Iraq; and (2) the president has inherent power under Article II to defend our personnel from the sort of attacks Iranian proxies have carried out in recent weeks. (National Review’s David French outlines that theory here.)

How far up the escalation ladder are these powers supposed to extend, however? “Supreme Leader” Ayatollah Ali Khamenei sits atop the military chain of command and apparently had to approve the recent militia attacks. Does Article II empower Trump to order a hit on the Ayatollah? That we wouldn’t miss that guy either seems rather beside the point.

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January 8, 2020 8:53AM

Dudley’s Defense of the Fed’s Floor System, Take 2

Back in the spring of 2018, yours truly responded at length to a speech then New York Fed President Bill Dudley gave, defending the Fed’s “floor” system of monetary control. In that speech, Dudley claimed that “the case for retaining the current floor system is very compelling.” A floor system, Dudley said, “is operationally much less complex than a corridor system” since “the setting of IOER is largely sufficient to maintain the federal funds rate within the FOMC’s target range.”

Mr. Dudley retired a couple months after giving that speech; and since 2019 he has been a senior research scholar at Princeton’s Griswold Center for Economic Policy Studies. I have no idea exactly what such a research scholar does; but unless those duties included hiding under a rock, Mr. Dudley is surely aware of goings on in the money market of late. Yet in a recent Bloomberg op‐​ed, he once again claims that the post‐​2008 floor system “is much simpler to carry out” than a corridor arrangement. Only he now adds that this is so, “provided there are sufficient reserves in the system.”

But that proviso is hardly the minor qualification Dudley makes it out to be. Instead, after more than a decade the Fed has yet to determine how many reserves are “sufficient.” And despite what Dudley claims, it is far from obvious that adding more reserves to the system will prove capable of smoothing what he blandly describes as “a few bumps in the road” toward a floor system that works in practice the way it’s supposed to work in theory. Instead, as Bill Nelson observed at a December Brookings event, the Fed could well end up discovering, as Norges Bank did a few years back, that under a floor system the demand for bank reserves tends eventually to catch‐​up to the supply, making the effort to satiate the banking system with reserves once and for all as futile as a dog’s effort to catch its own tail.

Nor is that all that’s wrong with Dudley’s claim. In theory, as he notes in 2016, setting the central bank policy rate under a floor system is a simple matter of flooding the system with reserves and then setting the rate of interest on reserves at the desired policy rate. But even when reserves were presumably abundant, the Fed’s floor system never worked as planned. From the first the fed funds rate sagged below the IOER rate, compelling Fed officials to switch from a single‐​valued rate target to a target “range.” Then, to keep the rate below the lower limit as that limit was raised above zero, they had to establish an overnight reverse‐​repurchase facility. Next, as the funds rate tended to creep up within the designated target range, they had to keep adding space between the IOER rate and the target upper limit. Finally, as they encountered those “bumps” along the road, they had to undertake (“forward”) repo operations amounting to hundreds of billions of dollars — operations that are likely to continue for some time, if not indefinitely, despite the Fed’s concurrent, permanent additions to the stock of bank reserves. In short, there appears to be a lot more to the U.S. money market than Mr. Dudley and other proponents of the floor system dream of in their philosophy.

And now the Fed is contemplating — and Mr. Dudley is himself championing — a standing repo facility which, whatever its merits, will add still another layer of complexity to an already far from simple operating system.

Finally, to pick one last nit, whether it was chosen by Mr. Dudley or not, the title of Mr. Dudley’s op‐​ed (“The Fed Should Keep Looking Forward, Not Retreat to the Past”) does critics of the Fed’s floor system an injustice. The alternative most expert critics of the Fed’s floor system have in mind isn’t a “retreat” to anything. They aren’t recommending a return to the pre‐​October 2008 status quo. Nor are they suggesting that the Fed should dispense with interest on reserves. Instead, they’d like to see the Fed move toward a standard “corridor” operating system, with interest on reserves determining the corridor’s lower limit, and a standing lending facility — repo or otherwise — setting the upper limit. This is a tried‐​and‐​true system employed by many of the world’s central banks. Yet the Fed itself has yet to try it.

Finally, as for which group is being more forward looking, ask me again when the Fed’s balance sheet hits $6 trillion or, better still, after we witness the first round of Green QE.

[Cross‐​posted from Alt‑M.org]

January 7, 2020 5:28PM

Unions Can Dispense Legal Advice. Why Can’t Trade Associations?

May a state prohibit a trade association from employing lawyers to dispense legal advice to member firms? Last spring the Fourth Circuit ruled that it does not violate the First Amendment for the state of North Carolina to maintain such a ban, and on December 16 the Supreme Court let that result stand by decliningcertiorari petition. But the issues in the case are worth our attention.

It is still taught that corporations cannot practice law, but the exceptions to that maxim are big ones. Long ago the rules changed to permit corporations to hire in‐​house lawyers and insurance companies to employ staff lawyers to represent policyholders. Meanwhile, lawyers themselves have won the right to the advantages of incorporation, which amounts to saying a corporation can practice law so long as lawyers run it. In general, what survived was more like a rule that if you want to practice law on behalf of third party clients you need to be either self‐​employed or employed by other lawyers.

Whether rules like this restricting the unauthorized practice of law (UPL) make sense is a matter of debate. On the one hand, no less an authority than now‐​Justice Neil Gorsuch has written that opening up a bigger role for non‐​lawyers can sometimes “be expected to lower prices, drive efficiency, and improve consumer satisfaction.” There are, to be sure, counter‐​arguments about how legal practice will fare better under the putatively higher ethical standards of lawyers as opposed to regular business people.

Over the past 60 years, at any rate, courts have eroded the old rules further in a significant new way. In 1963’s NAACP v. Button, the Supreme Court ruled that Virginia UPL laws could not prevent the NAACP from dispensing legal advice to its members. In 1967’s United Mine Workers of America, District 12 v. Illinois State Bar Association, it held that the First Amendment gives a labor union the right to hire lawyers to dispense advice to its members. And in 1978’s In re Primus, it accorded the ACLU a similar right. Along the way, various state courts have extended the principle to non‐​profit disability and housing‐​rights groups, even in cases where the recipient of legal advice is not a member of the organization in question.

That makes the trade association’s claim more interesting. Why shouldn’t it be allowed to dispense legal advice to its business members, the same way a union can for its members? The advice might even come on a matter in which the other side was being represented by a lawyer from one of the unions or private advocacy groups exercising their First Amendment rights under cases like UMW, Primus, or Button.

But the Fourth Circuit rebuffed this argument. It said the difference was that the unions and advocacy groups were “expanding and guarding [members’] civil rights,” whereas all the trade association wanted to do was “help its members ‘resolv[e] private differences.’”

If the Fourth Circuit panel believes that all the idealism, all the regard for civil and constitutional rights, and all the public‐​spiritedness in legal work is to be found on the side adverse to business, and none on the side that defends it, that’s really… well, contestable. Talk to lawyers who represent businesses and many will tell you that defending those businesses’s rights can be just as moral and idealistic a line of work as filing claims against them, or pursuing other courtroom specialties such as criminal or local‐​government law. (Julie Havlak of Carolina Journal quoted me in covering the North Carolina controversy.)

The Court won’t be deciding those issues this term. But let’s hope it will have a chance to look at them in the future.

January 7, 2020 4:08PM

Crescent Dunes: Another Green Flop

The Department of Energy called the vast and expensive solar project a “success story” and “milestone for the country’s energy future.”

But you can’t trust what the government says. Crescent Dunes is a flop and taxpayers are set to lose $737 million on it, according to a new Bloomberg report. That is even more than the $535 million taxpayers lost on the corruption‐​soaked Solyndra solar project.

With 10,000 mirrors arrayed in the Nevada desert, Crescent Dunes does look cool. But with the much lower costs of solar photovoltaic and natural gas projects, the government’s gamble on this alternative technology was folly. Politicians never apologize for their mistakes, and the main politician responsible for this one, former Senator Harry Reid, has retired and won’t face any tough questions about wasting our money.

Crescent Dunes was apparently undermined by mismanagement, unreliability, and excessive costs. The various players are now pointing fingers of blame at each other, which is typical of government‐​funded projects because they tend to diffuse responsibility.

Another solar‐​array boondoggle is the Ivanpah project in California, which received $1.6 billion in federal money. It generates less energy than was promised and at very high costs. I discuss other failed federal energy projects in this essay.

The lesson is that political daydreams about green new deals ultimately need to confront reality. And the reality is that the government’s track record at guiding our energy future has been pretty dismal.

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January 7, 2020 3:39PM

How Extensive Is FBI Domestic Spying? We’re Trying To Find Out

Earlier today, Cato issued a press release based on the current results of a major and ongoing Freedom of Information Act (FOIA) project designed to try to determine the magnitude of FBI domestic surveillance activities that may be unconstitutional or otherwise questionable from a civil liberties standpoint. First, some background.

Since April 2019, I’ve filed over 400 FOIAs. One of the core questions my FOIA work seeks to answer is whether, and to what extent, the kinds of domestic surveillance abuses that were surfaced by the Church Committee (and later the Senate Foreign Relations Committee) have resumed—particularly the targeting of domestic groups on the basis of their constitutionally protected right to free speech and association. Based on the evidence I and others in the media and civil liberties community have accumulated to date, I believe the answer is yes.

To refresh your memory, I wrote this piece for JustSecurity on Constitution Day 2019 regarding some very disturbing findings I and others had made regarding FBI targeting of domestic advocacy groups, including groups involved in immigration work.

On November 26, I reviewed all of the FOIA responses I’ve received to date to ensure any additional actions that might be necessary on my part and not previously addressed were cataloged and scheduled. In the course of that review, I realized that one Department of Justice Office of Information Policy (DoJ/OIP) response I received in June 2019 regarding Cato contained “Glomar” exemption language. The third paragraph of the DoJ letter contains the key language and reads as follows:

"I have determined that the FBI properly refused to confirm or deny the existence of any national security or foreign intelligence records responsive to your request because the existence or nonexistence of any such responsive records is currently and properly classified. See 5 U.S.C. § 552(b)(1). Please be advised that the Department Review Committee will determine whether the existence or nonexistence of this category of records should continue to be considered a classified fact. Additionally, the existence or nonexistence of any such responsive records is protected under the FOIA pursuant to 5 U.S.C. § 552(b)(3). This provision concerns matters specifically exempted from release by a statute other than the FOIA (in this instance, 50 U.S.C. § 3024(i)(1), which pertains to the National Security Act of 1947 and the Central Intelligence Agency Act of 1949).”

So what exactly is a “Glomar” FOIA response and what does it mean? A little background follows.

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