- A bombing campaign by either Israel or the United States would rally the Iranian people to support an otherwise unpopular and incompetent regime.
- What else will it take to rally the so-called fiscal hawks to the cause of reducing spending, balancing the budget, and averting national bankruptcy?
- Senator Franken’s Pay for War Resolution is a superficially a step in the right direction; but when it comes to war, the Senate could probably easily rally a 60-vote supermajority to override any offset requirements.
- It should be easy to rally around Paul Ryan’s Medicare choice plan, since seniors will lose benefits in the long run anyway.
- Tax reform proposals are rallying back on both sides of the aisle–will any of them stick?
Cato at Liberty
Cato at Liberty
Email Signup
Sign up to have blog posts delivered straight to your inbox!
Topics
It’s Bigger Than the Budget
Today POLITICO Arena asks:
Do the cuts (and increases) contained in the six-month spending bill House Republicans posted overnight make sense, and do they go far enough in attacking the deficit and national debt?
My response:
Today’s Arena question captures perfectly what’s missing from our current budget debate. In listing a few of the compromises contained in the six-month spending bill House Republicans posted overnight, and asking whether those cuts (and increases) go far enough in attacking the deficit and national debt, it invites us to imagine that America is one big family, arguing over how “we” should spend “our” money.
We’re not. As I wrote in last Thursday’s Wall Street Journal, we’re a constitutional republic, populated by discrete individuals, each with our own interests. Today’s question, perfectly understandable in the current climate, socializes us. The Framers’ Constitution freed us, to make our own individual choices.
To be sure, we have to start where we are today. But if that’s as far as we go, we’re doomed to never grasping the real problem. The Constitution was written precisely to check our appetite for “public goods.” It authorizes only a few, truly public goods. Not health care. Not education. Not most of what we spend “our” money on today. We’ve ignored the discipline it imposes, and we’re paying the price.
Related Tags
Congress: The Least Dangerous Branch
That’s the topic of my Washington Examiner column this week. In it, I discuss last week’s budget battle and the failure of “policy riders” designed to rein in the Obama EPA’s attempts to regulate greenhouse gases without a congressional vote specifically authorizing it. The Obama team believes it has the authority to implement comprehensive climate change regulation, Congress be damned. Worse still, under current constitutional law–which has little to do with the actual Constitution–they’re probably right. Thanks to overbroad congressional delegation, “the Imperial Presidency Comes in Green, Too.” At home and abroad, the legislative branch sits on the sidelines as the executive state makes the law and wages war, despite the fact that “all legislative powers” the Constitution grants are vested in Congress, among them the power “to declare War.”
Yet, as I point out in the column, Congress retains every power the Constitution gave it–powers broad enough that talk of “co-equal branches” is a misnomer. Excerpt:
The constitutional scholar Charles Black once commented, “My classes think I am trying to be funny when I say that, by simple majorities,” Congress could shrink the White House staff to one secretary, and that, with a two-thirds vote, “Congress could put the White House up at auction.” (I sometimes find myself wishing they would.)
But Professor Black wasn’t trying to be funny: it’s in Congress’s power to do that. And if Congress can sell the White House, surely it can defund an illegal war and rein in a runaway bureaucracy.
If they don’t, it’s because they like the current system. And why wouldn’t they? It lets them take credit for passing high-minded, vaguely worded statutes, and take it again by railing against the bureaucracy when it imposes costs in the course of deciding what those statutes mean.
Last year, in the journal White House Studies [.pdf], I explored some of the reasons we’ve drifted so far from the original design:
Federalist 51 envisions a constitutional balance of power reinforced by the connection
between “the interests of the man and the constitutional rights of the place.” Yet, as NYU‘s Daryl Levinson notes, ―beyond the vague suggestion of a psychological identification between official and institution, Madison failed to offer any mechanism by which this connection would take hold.… for most members, the psychological identification with party appears greatly to outweigh loyalty to the institution. Levinson notes that when one party holds both branches, presidential vetoes greatly decrease, and delegation skyrockets. Under unified government, “the shared policy goals of, or common sources of political reward for, officials in the legislative and executive branches create cross-cutting, cooperative political dynamics rather than conflictual ones.”
Individual presidents have every reason to protect and expand their power; but individual senators and representatives lack similar incentive to defend Congress’s constitutional prerogatives. “Congress” is an abstraction. Congressmen are not, and their most basic interest is getting reelected. Ceding power can be a means toward that end: it allows members to have their cake and eat it too. They can let the president launch a war, reserving the right to criticize him if things go badly. And they can take credit for passing high-minded, vaguely worded statutes, and take it again by railing against the executive-branch bureaucracy when it imposes costs in the course of deciding what those statutes mean.
In David Schoenbrod’s metaphor, modern American governance is a “shell game,” with We the People as the rubes. That game will go on unless and until the voters start holding Congress accountable for dodging responsibility.
Farm Subsidies to be Cut?
It’s shaping up to being another good year for farm incomes. As a result, policymakers looking for spending cuts are finally turning an eye toward farm subsidies. An emerging target is the $5 billion in annual payments made to farmers…for basically just being farmers.
From the Wall Street Journal:
With the farm economy booming and Washington on a diet, a program set up in the 1990s that cuts checks to farmers could be trimmed or eliminated next year when Congress writes a new five-year farm bill.
A group of conservative lawmakers has set its sights on these direct payments, and even farm-state Democrats who like the program say high crop prices make the outlays of about $5 billion a year harder to justify. Recently, the National Corn Growers Association, an industry lobby group, urged Congress to revamp the program, fearing it would be eliminated altogether.
As the Journal notes, the 1996 farm bill created these payments as a temporary handout to help “transition” farmers toward greater reliance on supply and demand. Instead, Congress and the Bush administration turned it into a permanent handout in 2002. If ever there was a symbol of Washington’s inability to get farmers off the taxpayer teat, this was it.
However, even the corn lobby seems to recognize that the gig might finally be up for one of Washington’s more indefensible programs:
‘Our members of Congress are telling us that they just can’t support this program anymore,’ said Anthony Bush, a policy expert with the National Corn Growers Association.
‘In times of record-high prices [the government is] still handing out money like this, it’s just politically not possible, feasible or popular these days,’ he said.
Mr. Bush said corn farmers have the most to lose if direct payments are eliminated altogether. He said $2.1 billion of the roughly $5 billion in direct payments go to such farmers.
Corn futures Wednesday settled at $7.63 a bushel, down slightly after reaching an all-time high above $7.70 Tuesday. Prices have more than doubled since last summer on strong export demand, record ethanol output and steady buying by domestic livestock producers.
The National Corn Growers Association voted earlier this month to ‘investigate transitioning direct payments’ into a more politically acceptable form of subsidy.
“Investigate transitioning direct payments”? That’s ironic terminology considering that these payments were originally intended to transition farmers away from reliance on taxpayers. Now the corn lobby wants to transition the transition payments into a “more politically acceptable” handout. Only in Washington.
See this Cato essay for more on farm subsidies.
Even University Presidents Are Bound by the Constitution
Few could imagine a more troubling free speech and due process case than that of Hayden Barnes.
Barnes, a student at Valdosta State University in Georgia, peacefully protested the planned construction of a $30 million campus parking garage that was the pet project of university president Ronald Zaccari. A “personally embarrassed” Zaccari did not take kindly to that criticism and endeavored to retaliate against Barnes — ignoring longstanding legal precedent, the Valdosta State University Student Handbook (a legally binding contract), and the counsel of fellow administrators. Zaccari even ordered staff to look into Barnes’s academic records, his medical history, his religion, and his registration with the VSU Access Office!
The district court found that Barnes’s due process rights had indeed been violated and denied Zaccari qualified immunity from liability for his actions. Now on appeal, Cato joined a brief filed by the Foundation for Individual Rights in Education on behalf of 15 organizations arguing that qualified immunity is inappropriate here given Zaccari’s brazen violation of Barnes’s constitutional rights to free speech and due process. As stated in the brief, the “desire of some administrators to censor unwanted, unpopular, or merely inconvenient speech on campus is matched by a willingness to seize upon developments in the law that grant them greater leeway to do so.” The brief thus asks the Eleventh Circuit to affirm the denial of qualified immunity on both First Amendment and due process grounds.
First, the immense importance of constitutional rights on public university campus is due in no small part to the reluctance of school administrators to abide by clearly established law protecting student rights. Second, Zaccari knew or should have known that his actions violated Barnes’ rights and were illegal retaliation against constitutionally protected speech.
Qualified immunity is intended to protect public officials who sincerely believe their actions are reasonable and constitutional, not those who willfully and maliciously ignore well known law in a determined effort to deprive another of constitutional rights. A denial of qualified immunity here would vindicate those rights and reinforce school administrators’ obligation to protect and abide by them.
The case of Barnes v. Zaccari will be heard by the Eleventh Circuit this spring or summer. Thanks to legal associate Nicholas Mosvick for his help on the brief and with this post.
The Obama Administration’s FOIA Compliance
Jim Harper has done a lot of work on the Obama administration’s efforts to be more transparent, especially with regard to “sunlight before signing,” earmark data, and FOIA compliance. The Obama administration could do a lot more on the FOIA front.
The Transactional Records Access Clearinghouse (TRAC) recently added a FOIA Project, which lists all FOIA requests that have become the subject of federal litigation since October 1, 2009. This includes an interactive FOIA Map that lets you zoom in and locate lawsuits across the United States.
TRAC has proven an invaluable resource for tracking federal government activities, and has been litigating FOIA requests for years. A recent Supreme Court decision, Milner v. Department of the Navy, reduced the ability of government agencies to withhold data under FOIA exemptions. Undeterred, an Immigration and Customs Enforcement official “informed TRAC that those who had requested and been denied access to documents under the FOIA prior to the court’s ground-breaking decision was rendered had no right to obtain them.” More details are available here.
It’s pretty bad when ICE is hiding behind procedural barriers to sidestep FOIA requests; it’s another ballgame entirely at the Department of Homeland Security. DHS officials tried to turn the objective standard of FOIA — disclosure to one is disclosure to all — into a subjective one, looking into the political beliefs of the requester to avoid embarrassment for DHS. An email trail shows how a former Obama staffer asked DHS employees to redact “politically sensitive” details from FOIA releases. Obama officials defended DHS’s FOIA policy in congressional hearings, and a DHS attorney tried to remove exhibits from the hearings. His explanation:
“As counsel for DHS, I object to counsel for the committee’s refusal to allow exhibits they had shown to the witness and that all are e‑mail messages from DHS personnel to DHS personnel on their official DHS-issued accounts and use of e‑mail services. These are not committee records, these are, rather, DHS records; and so there is no reason the committee should be able to prevent us from taking them, since they have shown them to the witness and used them in this interview.”
The Obama administration declared that it would be “the most open and transparent in history.” It is falling well short of the mark.
The Strange Case Against ECPA Reform
The Senate Judiciary Committee held hearings last week on the need to reform the increasingly badly outdated Electronic Communications Privacy Act, the 1986 legislation that governs how the cops conduct telephone and Internet surveillance in criminal investigations. Two officials from two different government agencies offered up rather strikingly different testimony.
Cameron Kerry of the Commerce Department acknowledged what legal scholars and technologists have been saying for years: The law’s byzantine and inconsistent standards—which provide wildly varying levels of protection for the same e‑mail as it’s being composed, sent, received, read, and archived—are wholly out of touch with the ways we actually use technology today. The distinctions the law draws make no real sense in principle, and are confusing and needlessly burdensome to Internet companies in practice.
By contrast, James Baker of the Justice Department was eager to sing the praises of ECPA in its current form, and to raise FUD (that’s “Fear, Uncertainty, and Doubt for the non-geeks) about reforms proposed by the Digital Due Process Coalition, a group of civil liberties advocates and tech companies that are urging Congress to update the law. Let nobody say that DOJ is behind the curve on technology: Baker’s testimony is almost totally virtual, a simulation of a real argument, worthy of the Matrix. But as with Oakland and cyberspace, when you look a little more closely, there’s no there there.
A surprising amount Baker’s time was devoted to establishing that electronic records—whether e‑mail contents, Internet “metadata,” or cell phone location information—are often useful to investigations. Well, of course they are! So are phone wiretaps! So are physical searches of homes! There wasn’t really any doubt about that, was there? They’re useful, of course, precisely because they tend to reveal private information about people’s activities. The question is what standard is appropriate, and whether that standard should exhibit some kind of basic consistency, both with respect to a single communication at different stages, and across technologies.
By the same token, suggesting that higher standards for access to electronic records may “impair” investigations may sound like a dire warning, but in fact it borders on tautology. Having to ask a judge to compel the production of records is a bigger impediment or delay than simply being able to demand them, and having to establish probable cause first is more difficult still. That’s the point! But it doesn’t tell you which standards establish a reasonable balance between user expectations of privacy and the needs (as opposed to convenience) of law enforcement. At times, the argument did sound an awful lot like Mike Masnick of Techdirt’s snarky summary: “The Fourth Amendment shouldn’t apply to online e‑mail because… that would make us have to work harder.” The funny thing is, when you look at Baker’s own anecdotes, it’s hard to see how the reforms being proposed would have presented a serious obstacle to an investigation:
- In one case, cell location data used to locate a suspect for whom an arrest warrant had been issued in the shooting of a Louisiana cop. That’s excellent, but at the risk of stating the obvious, if they had already obtained an arrest warrant for the suspect, they had already made the showing that would be needed to get a warrant for location tracking.
- In another case, officers were chasing down a fugitive wanted for a triple-murder, presumably armed and dangerous, at two in the morning. It’s not clear whether there was a warrant out for this suspect. But ECPA has always had an exception permitting emergency disclosures in cases where there’s imminent danger of death or serious injury, and everyone seems to agree that makes good sense. So examples invoking armed cop-shooting suspects in flight or kidnappers or ticking time bombs are all red herrings. In genuine emergencies where there’s really no time for a warrant, the law is flexible. But those exceptional circumstances are no basis for watering down standards in every case. By the same token, we understand that in many circumstances, police in hot pursuit of a violent suspect will be allowed to continue the chase into a private building without stopping for a warrant. But it would be absurd to make the exception the rule and suggest that the warrant requirement for searches of homes be jettisoned entirely.
- An ECPA subpoena was used to identify a computer from which an FBI agent had downloaded child pornography—a computer that turned out to belong to a high school special needs teacher. But again, nobody objects to this: Of course the agent should be able to obtain those records by some process. But what process? Under the circumstances, the image itself is prima facie evidence of a crime, so presumably even the stringent standard of probable cause would be met. So it’s hard to imagine how the investigation would have been derailed if the agent were merely required to show a judge “specific facts” showing the records were “relevant” to a legitimate investigation.
Given all the sensitive activities people engage in online—including political and religious speech or association—there’s a clear civil liberties benefit to requiring some kind of judicial approval before identifying anonymous Internet users, even if it’s only subject to a highly permissive “relevance” standard. Maybe there’s some compelling argument that a little paperwork delay is too high a price to pay for this protection, even in non-emergency situations, but Baker certainly didn’t make it.
So much for “metadata.” How about full e‑mail contents, then? A probable cause warrant is needed if the government wants to search your hard drive or tap your phone conversations. Is there any reasonable case for treating e‑mail differently if it happens to be stored “in the cloud” rather than on a hard drive in your home? Baker argues that “If a person stores documents in her home, the government may use a subpoena to compel production of those records,” and some government agencies are authorized to issue subpoenas, but not search warrants. Therefore, he claims, it doesn’t make sense to impose the higher warrant standard across the board for digitally stored records.
It’s hard to call this argument anything but disingenuous. ECPA governs what investigators can obtain directly from electronic service providers. Just as with privately stored documents, it would remain possible to issue a subpoena to the person whose documents are sought compelling them to turn over certain records (including e‑mail correspondence) or to authorize their release. This illustrates pretty well the differences between search warrants and subpoenas that have traditionally justified applying quite different standards to them. A search warrant is generally executed without (much) advance notice: The police come in and seize what the warrant authorizes them to take. When you receive a subpoena, you yourself find the responsive documents (instead of having the police rummage through your files looking for what’s relevant), after you’ve had an opportunity to attempt to quash the subpoena if it’s unreasonably burdensome or seeks constitutionally or statutorily protected information.
The government can issue a “preservation order” to an ISP if they’re afraid a subpoena recipient would attempt to erase incriminating files—but still, often the nature of an investigation is that you don’t want to tip off the suspect. But since that necessarily involves a greater invasion of privacy, those are precisely the circumstances in which a warrant is appropriate.
There are some reforms Baker would be happy to have Congress consider: He suggests it might be appropriate to impose stricter standards on ISP sharing of non-content records with entities other than the government, and that the provisions requiring compensation to providers for the time and manpower it takes to comply with data requests should be revisited. Call this the “Nice ECPA arrangement you’ve got there; be a shame if something wuz to happen to it” component of the testimony. The Digital Due Process Coalition has been successful in large part because it’s not just the ACLU and other usual suspects complaining: Big players in the tech industry have thrown their weight behind the push for reform as well. This sounds an awful lot like an attempt to “split the popular front,” as the Trotskyites used to say.
A final observation. Baker argues that “ECPA is complex because our nation’s communications systems are complex” and that “Congress should take care not to disrupt the current balance of interests that is reflected in ECPA.” This sounds reasonable on face, but if you actually look at the bizarro distinctions ECPA makes between (say) an e‑mail stored in draft form on a server, or unopened in an inbox, or in transit on the wire, it’s pretty clear that the complexity of the statute has nothing at all to do with the practical complexity of modern communications or the diverse interests involved. Indeed, the “balance of interests that is reflected in ECPA” is actually the very different set of interests that Congress weighed back in 1986, when the landscape looked quite different.
As a modest proposal, what if we froze the “balance” as it stood at that time? The ability to track the location of a suspect in motion, except by visual observation, would barely exist at all. Because storage space was more expensive by several orders of magnitude, very little transactional data would be stored by telecommunications providers for prolonged periods, and nobody would be storing draft documents or read e‑mails on third-party “cloud” servers: They’d be immediately downloaded to the user’s home hard drive.
That balance—the balance that Congress actually intended back when the statute was written—is clearly not what the Justice Department has in mind. There’s a conspicuous double standard here: If technological change makes it harder in any respect for investigators to obtain private information, law enforcement is quick to urge the need for “modernization” to preserve the “balance” Congress intended against the vagaries of progress. If—as is more often the case—technology makes it vastly easier for them to obtain and process vast amounts of information, that technologically driven change establishes a new, sacrosanct baseline for government capabilities, whether or not it was foreseen or intended by Congress.
Let’s hope Congress is not fooled by this kind of sleight of hand. “Balance” is exactly what has already been disrupted by a technological world nobody in 1986 envisioned; it’s time to restore it.