Iran this week punctuated 10 days of naval exercises in the Strait of Hormuz and threats to close it with a warning to U.S. Navy ships to stay out of the Persian Gulf, which requires passage through the strait. The tough talk may have temporarily juiced oil prices, but it failed to impress militarily. Recent news reports have cited U.S. military officials, defense analysts, and even an anonymous Iranian official arguing that Iran likely lacks the will and ability to block shipping in the strait. That argument isn’t new: Iran’s economy depends on shipments through the strait, and the U.S. Navy can keep it open, if need be. What’s more, the Iranians might be deterred by the fear that a skirmish over the strait would give U.S. or Israeli leaders an excuse to attack their nuclear facilities.

The obviousness of Iran’s bluster suggests its weakness. Empty threats generally show desperation, not security. And Iran’s weakness is not confined to water. Though Iran is more populous and wealthier than most of its neighbors, its military isn’t equipped for conquest. Like other militaries in its region, Iran’s suffers from coup-proofing, the practice of designing a military more to prevent coups than to fight rival states. Economic problems and limited weapons-import options have also undermined its ability to modernize its military, while its rivals buy American arms.

Here’s how Eugene Gholz and Daryl Press summarize Iran’s conventional military capability:

Iran … lacks the equipment and training for major offensive ground operations. Its land forces, comprising two separate armies (the Artesh and the Islamic Revolutionary Guard Corps), are structured to prevent coups and to wage irregular warfare, not to conquer neighbors. Tehran’s air force is antiquated, and its navy is suited for harassment missions, not large amphibious operations across the Gulf. Furthermore, a successful invasion is not enough to monopolize a neighbor’s oil resources; a protracted occupation would be required. But the idea of a sustainable and protracted Persian Shi’a occupation of any Gulf Arab society—even a Shi’a-majority one like Bahrain—is far-fetched.

Despite Iran’s weakness, most U.S. political rhetoric—and more importantly, most U.S. policy—treat it as a potential regional hegemon that imperils U.S. interests. Pundits eager to bash President Obama for belatedly allowing U.S. troops to leave Iraq say it will facilitate Iran’s regional dominance. The secretary of defense, who says the war in Iraq was worth fighting, wants to station 40,000 troops in the region to keep Iran from meddling there. Even opponents of bombing Iran to prevent it from building nuclear weapons regularly opine on how to “contain” it, as if that required great effort.

Some will object to this characterization of Iran’s capabilities, claiming that asymmetric threats—missiles, the ability to harass shipping, and nasty friends on retainer in nearby states—let it punch above its military weight. But from the American perspective—a far-off power with a few discrete interests in the region—these are complications, not major problems. Our self-induced ignorance about Iran’s limited military capabilities obscures the fact that we can defend those interests against even a nuclear Iran at far lower cost than we now expend. We could do so from the sea.

The United States has two basic interests in the region. The first is to prevent oil price spikes large enough to cause economic trouble. Although it’s not clear that an oil price shock would greatly damage the U.S. economy, we don’t want to chance it. That is why it makes sense to tell Iran that we will forcibly keep the strait open.

Iranian nuclear weapons would merely complicate our efforts to do so. For safety, both naval ships clearing mines there and tankers would want Iranian shores cleared of anti-ship cruise missiles and their radars, although doing so is probably not necessary to keep strait cargo moving. The possibility of nuclear escalation makes attacking those shore-based targets tougher. But the risk of escalation is mostly Iran’s. By attacking U.S. ships, Iran would risk annihilation or a disarming first strike. Given that, it is hard to see how nuclear weapons make closing the strait easier.

The second U.S. goal in the region is to prevent any state from gathering enough oil wealth to extort us or build a military big enough to menace us. The vastness of our military advantage over any combination of Middle Eastern states makes that fairly easy to prevent. The difficulty of Iran credibly threatening to stop exporting the chief source of its wealth makes the problem even smaller. Indeed, the odds of Iran becoming an oil super-state by conquest are so low that we probably do not need to guarantee any nearby state’s security to prevent it. For example, if Iran swallowed and magically pacified Iraq, the resulting state, while a bad thing, would create little obvious danger for American safety or commerce. Still, if we did defend Iraq’s borders, carrier-based air power along with Iraqi ground forces would probably suffice to stop Iranian columns at the border. The same goes for Kuwait and Saudi Arabia.

Because threats of nuclear attack better serve defensive goals, an Iran armed with nukes would not meaningfully change this calculus. Iran’s neighbors would not surrender their land just because Iran has nuclear weapons, if history is any guide. And U.S. guarantees of retaliatory strikes could back them up, if necessary. Nukes might embolden Iran to take chances that a state worried about invasion would not. But the difficulty of subduing a nationalistic country of 75 million people already deters our invasion.

The current contretemps with Iran is no reason for “maintaining our military presence and capabilities in the broader Middle East,” as the secretary of defense would have it. Removing U.S. forces from Iran’s flanks might strengthen the hand of the Iranian minority opposed to building nuclear weapons, though it is doubtful that alone would be enough to let them win the debate anytime soon. But even if Iran does build nuclear weapons, we can defend our limited interests in the region from off-shore.

Cross-posted from the the Skeptics at the National Interest.

The Obamacare litigation has arrived on the big stage: the Supreme Court. The first opportunity for those opposing the legislation to weigh in comes on the issue that will be the last one the Court considers, “severability.” That is, if the individual mandate is struck down as unconstitutional, what (if any) of the rest of the law must fall with it?

On one hand, even in the absence of a severability clause, the Court should avoid striking down an entire law when only one small part is declared unconstitutional, particularly if the remainder of the law is unrelated to the defective bit (imagine an omnibus spending bill). On the other, the Court cannot go provision-by-provision and execute some sort of judicial line-item veto (creating a new law completely unrecognizable from what Congress enacted).

Many think that the rules in this area are unclear, but the analysis boils down to two questions:

1. Can the remainder “fully operate as law”?
2. Would Congress have passed the remainder?

In our brief, joined by the Texas Public Policy Foundation and co-authored by Prof. Richard Epstein, we examine these questions with a focus on Titles I and II of the law, which contain all the key provisions relating to Obamacare’s fundamental transformation of the national health care system: the requirement that insurers cover people with preexisting conditions (“guaranteed issue”), the requirement that premiums be assessed by a “community rating” formula, the creation of state insurance exchanges, Medicaid expansion, premium supports, etc.

Put simply, knocking out the individual mandate renders this whole package inoperable; the brave new health care world would not work as a matter of basic economic principle. As policy experiments in various states have proven, without an individual mandate, guaranteed-issue and community-rating provisions foster a “death spiral” because healthy people wait until they get sick or injured before buying under-priced insurance that they cannot then be refused, causing premiums to increase and costs to explode. The individual mandate is thus so interwoven with other crucial provisions that it cannot be excised without destroying the entire Obamacare structure.

Appreciating this mechanism, the government has conceded that guaranteed-issue and community-rating are indeed inextricably tied to the individual mandate—it has to, given its constitutional claim that the mandate is a necessary means of implementing a lawful regulation of interstate commerce. But a close analysis of the law reveals that the interoperability goes much further. And Congress knew this; there is no way it would have otherwise passed this law.

Thus, to aid the plaintiffs’ arguments regarding broader non-severability, our brief shows that the individual mandate is so central to the overall legislation that if it falls, those key Titles I and II must go with it.

The Court will consider the severability question for 90 minutes on March 28, the last of the three consecutive days it hears oral argument in the Obamacare cases.

Ten years later, it’s clear that the No Child Left Behind law is a failure. Instead of driving better academic performance of K‑12 students, NCLB has cost many billions of dollars with no discernible positive impact on student achievement. Worse, the law has laid some of the groundwork necessary for the adoption of national standards, another step toward a fed-approved and standardized K‑12 curriculum, an outcome many of the law’s former proponents explicitly oppose.

Neal McCluskey argues in this new video that the only reasonable (and Constitutional) course for the feds now is to simply bow out of K‑12 education completely.

Poor Michael Gerson. The former speechwriter for George W. Bush writes about libertarianism more than any other major columnist. And yet, after at least six years of attacks, he still can’t grasp the concept. Take today’s column defending Rick Santorum against “anti-government activists.” I pointed out his error in calling libertarians “anti-government” in 2010:

Libertarians are not against all government. We are precisely “advocates of limited government.” Perhaps to the man who wrote the speeches in which a Republican president advocated a trillion dollars of new spending, the largest expansion of entitlements in 40 years, federal takeovers of education and marriage, presidential power to arrest and incarcerate American citizens without access to a lawyer or a judge, and two endless “nation-building” enterprises, the distinction between “limited government” and “anti-government” is hard to see. But it is real and important.

This time he includes me as his example of an “anti-government activist” and purports to quote my objection to Santorum:

David Boaz of the Cato Institute cites evidence implicating him in shocking ideological crimes, such as “promotion of prison ministries” and wanting to “expand colon cancer screenings for Medicare beneficiaries.”

The first quotation there is from Jonathan Rauch’s review of Santorum’s book, It Takes a Family, and the second is from a New York Times article on Santorum’s campaign brochure listing all the pork he’d brought home to Pennsylvanians. As for Rauch’s list of Santorum’s ideas for an activist federal government, here’s what I quoted:

In his book he comments, seemingly with a shrug, “Some will reject what I have to say as a kind of ‘Big Government’ conservatism.”

They sure will. A list of the government interventions that Santorum endorses includes national service, promotion of prison ministries, “individual development accounts,” publicly financed trust funds for children, community-investment incentives, strengthened obscenity enforcement, covenant marriage, assorted tax breaks, economic literacy programs in “every school in America” (his italics), and more. Lots more.

Out of that list Gerson picks “promotion of prison ministries” as a dismissal of my concerns. Some readers might well think that government sponsorship of Christianity in prisons is problematic enough. But others might think that you don’t have to be “anti-government” to oppose the three new government transfer programs that immediately follow the reference to prison ministries.

More importantly, though, Gerson ignores my main criticism of Santorum. In 749 words rebutting the libertarian criticism of Santorum, Gerson never actually names it. Here’s the core point that Gerson didn’t deign to address:

Santorum had already dismissed limited government in theory. Promoting his book, he told NPR in 2006:

One of the criticisms I make is to what I refer to as more of a libertarianish right. You know, the left has gone so far left and the right in some respects has gone so far right that they touch each other. They come around in the circle. This whole idea of personal autonomy, well I don’t think most conservatives hold that point of view. Some do. They have this idea that people should be left alone, be able to do whatever they want to do, government should keep our taxes down and keep our regulations low, that we shouldn’t get involved in the bedroom, we shouldn’t get involved in cultural issues. You know, people should do whatever they want. Well, that is not how traditional conservatives view the world and I think most conservatives understand that individuals can’t go it alone. That there is no such society that I am aware of, where we’ve had radical individualism and that it succeeds as a culture.

He declared himself against individualism, against libertarianism, against “this whole idea of personal autonomy, … this idea that people should be left alone.” And in this 2005 TV interview, you can hear these classic hits: “This is the mantra of the left: I have a right to do what I want to do” and “We have a whole culture that is focused on immediate gratification and the pursuit of happiness … and it is harming America.”

Does Gerson think that that is a good statement of American conservatism? Is that what he thinks the Republican party should stand for? If so, I invite him to say so — as Santorum does — instead of using a column in one of the nation’s most important newspapers to attack straw men.

At least he does understand that libertarianism is not conservatism but rather “is actually a species of classical liberalism, not conservatism — more directly traceable to John Stuart Mill than Edmund Burke or Alexis de Tocqueville. ” Also traceable to the American Founders and the Declaration of Independence. And he’ll find three selections from Tocqueville in The Libertarian Reader.

Gerson writes, “Oppressive, overreaching government undermines these value-shaping institutions.” And then he goes on to endorse social engineering in the tax code, the war on drugs, bans on “obscenity,” government transfers to charities and businesses, and by implication all the programs that Rauch noted in Santorum’s book.

So maybe the most important line in Gerson’s essay is the headline:

Rick Santorum and the return of compassionate conservatism

He’s saying that if you liked the Bush administration, you’ll like Santorum. But those of us who didn’t like, as I noted above, a trillion dollars of new spending, the largest expansion of entitlements in 40 years, federal takeovers of education and marriage, presidential power to arrest and incarcerate American citizens without access to a lawyer or a judge, and two endless “nation-building” enterprises will not want to repeat the experience.

Rick Santorum has declared himself against “this whole idea of personal autonomy, … this idea that people should be left alone,” this fundamental American idea of the pursuit of happiness. What do conservatives not get about that?

Gordon Hirabayashi died on January 2, at age 93.

The Washington Post obituary notes that the federal government put him in a prison during the 1940s. President Franklin Roosevelt issued many decrees, but the one that would lead to Hirabayashi’s imprisonment, Executive Order 9066, said that thousands of Americans residing on the West Coast had to leave their jobs and homes and promptly report to certain prison camps (“relocation centers”). The feds said actual proof of wrongdoing was unnecessary.

Hirabayashi refused to go along with the program, so he was prosecuted for disobeying the president and jailed. The courts rejected his argument that FDR had exceeded the powers of his office. In an interview in 1985, Hirabayashi looked back on his ordeal and said, “My citizenship didn’t protect me one bit. Our Constitution was reduced to a scrap of paper.”

Even though there are written safeguards concerning due process, habeas corpus, and jury trial, presidents will sometimes assert the power to override all that. FDR did it. George W. Bush did it. And Barack Obama wants to reserve the option to do it.

On January 17, Cato will be hosting a book forum about FDR’s war policies and civil liberties.

For related Cato scholarship, go here and here.

Although Franklin Roosevelt did go on to win another term after his court-packing debacle in 1937, his support dramatically declined after the incident. Whereas his 1936 election came with the support of 62% of voters, his 1940 was down to 55% (granted, still a “landslide by modern standards). And while it wouldn’t be until 1946 that Republicans would take the Senate, the 1938 mid-terms did cost the Democrats five Senate seats. The point of all this? Constitutional overreach comes at a cost, and in a nation split roughly evenly on Red/​Blue ideological lines, that coust could make all the difference.

While it is still too early to tell, President Obama’s recent “recess” appointments have the potential to erode his support among independents, many of whom actually care about the Constitution. While the National Journal’s Shane Goldmacher is pondering why Republicans even want to take on this fight, it really should be the White House questioning whether it is worth it. When Ron Paul says, “The president is not a dictator or a king who can simply ignore the Constitution whenever he feels frustrated by the system of checks and balances,” this is something that anyone can understand, even former law professors.

A few things to remember about FDR’s court-packing scheme. First, unlike Obama’s recent appointments, FDR’s plot was actually constitutional, but still struck at the checks and balances behind the Constitution. FDR also painted his plan as a way to rein in an out-of-touch, conservative Court that, in his view, protected “big business” (sounds a little familiar). Despite FDR’s massive popularity at the time, and the unpopularity of both Republicans and the Court, the plan still cost him.

It is also worth remembering that court-packing initially had some support. From its announcement in February until about April, Gallup showed a steady support of around 45%. In fact, support never fell below 30% before the plan was shelved. Goes to show no matter how offensive, there will also be some blind partisans to support any scheme.

By now most of the public has already made up their mind about “who is the bigger front for Wall Street,” so yes this maneuver will energize the base some. But it is unlikely to change anyone’s mind about Republicans and Wall Street. What it does do, however, is further raise issues about Obama’s commitment to and understanding of the Constitution. When the Obama campaign says, “He’ll work with Congress when he can, but if they refuse to act—he will,” it really displays either a deep misunderstanding or outright contempt for the separation of powers inherent in our system. If Obama doesn’t place any value upon that notion, perhaps the American public will.

A debate over Obamacare between me, Cal-Irvine law professor (and dean) Erwin Chemerinsky, and Demos’s Anthony Kammer is currently ongoing at Pol​i​cyMic​.com. Below is my initial post, but the debate continues in the comments section. If anyone is so disposed, I invite you to join the conversation.

Congress has limited, enumerated powers under the Constitution. One of those is to regulate interstate commerce, which means ensuring that commerce flows easily between the states. Although the Supreme Court has expanded that regulatory authority to reach local economic activity that, in the aggregate, has a “substantial effect on interstate commerce,” Congress still lacks the power to compel citizens to enter into commerce for the purposes of regulating them—which is what the Affordable Care Act’s “individual mandate” does. Moreover, the penalty for not complying with the mandate is not a tax and, if it is, it is an unconstitutional one because it is not apportioned by population. That point is especially noteworthy because the individual mandate was passed in part to avoid the political accountability that raising taxes would have brought.

Those are my claims. But I’m going to concentrate my initial thoughts in the clouds, so to speak, rather than the weeds. I begin with a crucial point: enforcing limits on governmental power—especially Congress’s commerce power—is not and never has been about discovering limits to the power. Instead, it is about defining and enforcing those limits. Since the landmark commerce power cases of the late ’30s and early ’40s, however, the Supreme Court has largely treated the limits on federal power as detectable rather than definable. Those cases looked at our system of commerce as a pond and Congress’s power as extending over the ripples caused by disturbances on the surface. And if the effects of a single water bug or pebble were not detectable enough, we were told to imagine the combined effects of all those water bugs or pebbles.

That theory differs from how the Court looked at the commerce power before the New Deal, when Congress’s power was limited by type rather than degree. In other words, activities such as “manufacturing” were deemed off-limits to Congress not by virtue of the effects they had on interstate commerce—the ripples in the pond—but by virtue of the type of thing it was. Even though it produced items for commerce, manufacturing was local in nature, so Congress had no power to regulate it. Thus limits were articulated, rather than discovered.

Although many people thought that the Supreme Court abandoned this line of thinking during the New Deal, the Court reaffirmed that type-versus-degree distinction in the 1995 case of United States v. Lopez (followed in 2000 by another similar case). In Lopez, the Court struck down the Gun-Free School Zone Act not because guns in school zones don’t cause sufficient ripples in the national commercial pond, but because a gun law is fundamentally different from a commercial regulation. Indeed, the Framers knew that, if conceived broadly enough, everything has an effect on commerce. The ripples in the pond can affect the sand on the shore and even the animals on the land. Unless a distinction is drawn between the sand and the water—or, to leave that analogy, between buying something and not buying something—Congress’s power is unlimited.

With the individual mandate, we also distinguish power by kind rather than degree. Not only is the decision not to buy insurance not commerce, the idea that such a decision falls under Congress’s regulatory authority because it affects commerce is dangerous precisely because it is correct: of course decisions not to buy something affect commerce (indeed, any decision, action, or inaction ultimately affects commerce). Giving the government the power to regulate those decisions removes all limits on federal power.