- DON’T FORGET: Our fiscal policy conference, “The Economic Impact of Government Spending,” featuring Senators Bob Corker (R‑Tenn.) and Mike Lee (R‑Utah), former Senator Phil Gramm (R‑Tex.), Representative Kevin Brady (R‑Tex.), and other distinguished guests, begins at 2:00 p.m. Eastern today. Please join us on the web–you can watch the conference LIVE here.
- Atlas Shrugged Motors presents the Chevy Volt.
- The parable of the Good Samaritan teaches us about the moral value of voluntary charity toward the needy–it says nothing about using coercive government programs of the modern welfare state.
- It is not the role of the Court to rewrite laws for Congress.
- The failed “war on drugs” has reshaped our budgets, politics, laws, and society–and for what?
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George Will on Libya
President Obama’s incomprehensible “kinetic military action” in Libya has driven George Will to distraction, and to mordant wit:
At about this point in foreign policy misadventures, the usual question is: What is Plan B? Today’s question is: What was Plan A?
Not to mention literary allusion:
Perhaps the CIA operatives should have stayed home and talked to some senators who seem to know what’s what. Sen. John Kerry (D‑Mass.) refers to the Libyan rebels as part of a “pro-democracy movement.” Perhaps they are. Sen. Lindsey Graham (R‑S.C.) must think so. Serving, as usual, as Sancho Panza to Sen. John McCain’s Don Quixote, Graham said last Sunday (on “Face the Nation”), “We should be taking the fight to Tripoli.”
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Surveillance, San Francisco-Style
San Francisco’s Entertainment Commission will soon be considering a jaw-dropping attack on privacy and free assembly. Here are some of the rules the Commission may adopt for any gathering of people expected to reach 100 or more:
3. All occupants of the premises shall be ID Scanned (including patrons, promoters, and performers, etc.). ID scanning data shall be maintained on a data storage system for no less than 15 days and shall be made available to local law enforcement upon request.
4. High visibility cameras shall be located at each entrance and exit point of the premises. Said cameras shall maintain a recorded data base for no less than fifteen (15 days) and made available to local law enforcement upon request.
Would you recognize a police state if you lived in one? How about a police city? The First Amendment right to peaceably assemble takes a big step back when your identity data and appearance are captured for law enforcement to use at whim simply because you showed up. (ht: PrivacyActivism.org)
Why Should Social Insurance Reform Not Affect Those Over Age 54?
House Budget Committee Chairman Paul Ryan’s budget plan is ostensibly for FY 2012, but it contains reforms with far-reaching implications for the nation’s fiscal condition.
Most of the action in his plan is on the spending side and mainly on health care entitlements: Medicare and Medicaid. Many pundits on the left are claiming it is a political document rather than a serious budget proposal, especially because it lacks details on many of its proposed policy changes.
One thing that stands out, as pointed out by David Leonhardt in the NYT, is that Ryan’s plan exempts people older than age 55 from bearing any share of the adjustment costs. They should, instead, be called upon to share some of the burden, Leonhardt argues — a point that I agree with. If seniors are receiving tens of thousands of dollars more than what they paid in for Medicare, then they should not be allowed to hide behind the tired old argument of being too old to bear any adjustment cost. Indeed, seniors hold most of the nation’s assets and a progressive-minded reform would ask them to fork over a small share to relieve the financial burden that must otherwise be imposed on young workers and future generations.
The numbers presented by Leonhardt are computed by analysts at the Urban Institute. However, those numbers aren’t quite as one-sided as Leonhardt and Urban scholars suggest, because they only compare Medicare payroll taxes by age group to Medicare benefits. A large part of Medicare benefits (Medicare’s outpatient care, physicians’ fees, and federal premium support for prescription drugs) are financed out of general tax revenues, not just Medicare taxes. General tax revenues, of course, include revenues from income taxes, indirect taxes, and other non-social-insurance taxes and fees. Seniors pay some of those taxes as well — especially by way of capital income and capital gains taxes — but the Urban calculations fail to account for this. That means that the net benefit to seniors from Medicare is smaller than Leonhardt claims in his column. I don’t know whether it would bring the per-person Medicare taxes and benefits as close to each other as they are for Social Security, however. (See Leonhardt’s column for more on this point.)
Leonhardt also notes that Chairman Ryan’s proposal leaves out revenue increases as a potential solution to the growing debt problem. Leonhardt argues that wealthy individuals (mostly large and small entrepreneurs) received high returns on assets during the last few years (pre-recession) and could afford to pay more in taxes.
But it would be poor policy to raise these entrepreneurs’ income taxes — that would distort incentives to work, invest, innovate, and hire in their businesses. Instead, policymakers should consider reducing high-earners’ Medicare and Social Security benefits (premium supports under the Ryan plan) in a progressive manner, including allowing them to opt out of Medicare and Social Security completely if they wish to.
During recent business trips to a few Midwestern towns, I met several investors and professionals in real estate, financial planning, and manufacturing concerns, most of whom expressed their willingness to forego social insurance benefits during retirement. So there seems to be some public support for such a reform of social insurance programs.
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Blurry Lines, Discrete Acts, and Government Searches
I’ve written before about the “Mosaic Theory” some courts have recently employed to conclude that certain forms of government surveillance may trigger Fourth Amendment protection in the aggregate, even if the surveillance can be broken down into components that don’t fall under the traditional definition of a Fourth Amendment “search.” This has been applied specifically to high-tech forms of location tracking, where several judges have concluded that a person may have a privacy interest in the totality of their public movements over a long period of time, even though observing a person at any particular public place in a specific instance is not an intrusion on privacy. I’ve explained in that previous post why I find this reasoning compelling. Legal scholar Orin Kerr, however, remains unmoved, and suggests that divergent decisions applying the Mosaic Theory to government acquisition of stored cell phone location records effectively serve as a reductio of that theory:
To my mind, this opinion reveals the absurdity of Maynard’s mosaic theory. The analysis is all “look ma, no hands.” No one knows where the line is, or even what the line is. Sure, you could just count days of surveillance: perhaps 30 days triggers a warrant but 29 days doesn’t. But there is no reason the access to records has to be continuous. The government can skip around days, or get records from a few days here and a few days there. Who can tell how much is enough? No one knows what is revealing, because what is revealing depends on what the records actually say — and no one but the phone companies know what they say. So Judge Orenstein has to wing it, announcing that “he cannot assume” that the information would be revealing because it has breaks in time. But it’s not clear to me why the break in time matters: It’s the same net amount of data collected, so I don’t know why it matters if it was collected all at once or over several discrete periods. And how much of a break matters? If 21 days is too long, is 21 days with a one-day break enough? How about a 3‑day break? One week? No one knows, it seems, not even the judge himself. [.…]
There are some readers who will say that the cause of justice sometimes requires hard decisions, and that if judges need to make arbitrary calls like that, then that is what we pay them to do in order to enforce the Constitution. But as I see it, the oddity of the inquiries called for by the Maynard mosaic theory shows why it is not part of the Constitution at all. In Fourth Amendment law, the lawfulness of government conduct has always been viewed discretely: Each government act is either a search or it is not a search. Under Maynard, conduct can be a non-search if viewed in isolation but a search if viewed in context — but there is no guide to tell how much context is proper. If you want to say that certain conduct is a search, then just be direct and say it’s a search. That’s fine. But a mosaic theory, in which non-searches become searches if grouped a particular way, has no proper place in Fourth Amendment law.
Orin’s point about the seeming arbitrariness of these determinations—and the difficulties it presents to police officers who need a rule to rely on—is certainly well taken. The problem is, the government is always going to have substantial control over how any particular effort at information gathering is broken into “acts” that the courts are bound to view “discretely.” If technology makes it easy to synthesize distinct pieces of information, and Fourth Amendment scrutiny is concerned exclusively with whether each particular “act” of information acquisition constitutes a search, the government ends up with substantial ability to game the system by structuring its information gathering as a series of acquisitions, each individually below the threshold.
Let’s consider a concrete case involving location monitoring. Under the Supreme Court’s ruling in United States v. Karo, technological location monitoring does count as a Fourth Amendment search requiring a warrant when it reveals information about where the tracking device is located within a private place, such as a home. On this theory, if the police want to be able to pinpoint a target’s location with sufficient precision to be able to tell when he goes from the garage on one side of the house to the bedroom at the other end, they’ll need a full blown search warrant. If they just want to know the general area the target is in—which cellular tower the phone is closest to, for instance—a subpoena or another less demanding form of court order might be sufficient.
There are, however, several methods of determining a phone’s precise location by triangulation, using data from multiple cell towers—and many cell networks use these methods to provide location services. The records from any one cell tower only yield a very general radius within which each phone registered at that tower can be presumed to be located. Combine the records from the three nearest towers, however, along with some measurements of signal strength and timing, and in an urban area where towers are relatively densely packed, you can often pinpoint the phone within a few meters.
Let’s suppose, then, that existing doctrine would require a warrant if police plan to go to the phone company and say: “We want you to triangulate the precise location of this phone for us over the past month, including at times when our suspect was at home.” What a hassle! They’ve got an out, though: They can issue separate requests for the records from each tower, then combine the data and do the triangulation themselves. As long as each request “viewed discretely” doesn’t yield enough information to pinpoint the phone within the home, there’s no search!
I don’t mean to suggest that, in practice, police are likely to use this particular method to circumvent the warrant requirement—though I wouldn’t be shocked either. But I think the example illustrates a problem with Orin’s categorical insistence on making the binary search/no-search determination only with respect to isolated “acts” of government, when the government itself controls how its monitoring is distributed across discrete acts.
Here’s another example, and one where I think there is a very real possibility that investigators are able, in practice, to game the standards governing electronic surveillance. According to the Justice Department’s U.S. Attorneys Manual, a “pen register” (which can be obtained much more easily than a search warrant) can be used to obtain general information about the domains or IP addresses a target is visiting, but not what particular pages somebody is reading. The idea is that there’s a sharp Fourth Amendment distinction between the “content” of a communication—its “meaning or purport”—and the non-content transactional information, such as the phone number or IP address, which tells you something about who is communicating, but not what is communicated. But there’s a loophole:
This policy does not apply to applications for pen register orders that would merely authorize collection of Internet Protocol (IP) addresses, even if such IP addresses can be readily translated into URLs or portions of URLs. Similarly, this policy does not apply to the collection, at a web server, of tracing information indicating the source of requests to view a particular URL using a trap and trace order.
Emphasis added. Roughly translated, this means that the government can obtain records showing that I accessed (say) the IP address of a particular political Web site, but not which specific articles I was reading. However, they may be able to separately go to that site and request the transactional logs for each article, then search through those to determine which articles were sent to me.
It seems very likely that technology will increasingly permit this kind of multi-step searching, perhaps in ways we can’t yet predict. For all that Orin is right to worry about the practical difficulty of determining how to group discrete acts of information gathering, the consequences of dogmatically insisting on evaluating each “act” in isolation seem equally absurd if it implies that the government will have the practical ability to transform a Fourth Amendment “search” into an unregulated (or much less regulated) “non-search” just by breaking it into smaller pieces.
Standards Overreach, or According to Plan?
Over on his Education Week blog, Rick Hess senses that the “broad but shallow coalition” of national curriculum standards true-believers and folks who just like the idea of a common academic metric might be fracturing. The cause: The Albert Shanker Institute’s national curriculum manifesto released last month, as well as lingering concern about impending national tests. Suddenly — and seemingly against the wishes of Common Core leaders — the national standards push is starting to appear much less “voluntary” and much more micromanaging than advertised.
I hope that Hess is right that alarm is spreading over the oozingly expanding national-standards blob, but I disagree with how he seems to characterize what’s happening. Hess appears to see these developments, especially the Shanker manifesto, as overreaching by just some of the more zealous nationalizers, much to the consternation of the main Common Core architects and advocates. But as I have pointed out before, if you reach into the bowels of what would-be nationalizers have written, as well as the logic behind national standards, it is hard to see this as anything but planned.
At the very least, the main advocates haven’t wanted standards adoption to be truly voluntary, by which I mean states are neither rewarded nor punished for adopting or bypassing the standards. The Obama administration intentionally and openly coerced adoption with Race to the Top, for one thing, without eliciting any loud opposition from Common Core creators. But the administration was really just doing what the Common Core-leading National Governors Association, Council of Chief State School Officers, and Achieve, Inc., called for back in 2008. As stated on page 7 of their publication Benchmarking for Success: Ensuring Students Receive a World-class Education:
The federal government can play an enabling role as states engage in the critical but challenging work of international benchmarking. First, federal policymakers should offer funds to help underwrite the cost for states to take the five action steps described above [including “adopting a common core of internationally benchmarked standards in math and language arts.”] At the same time, policymakers should boost federal research and development (R&D) investments to provide state leaders with more and better information about international best practices, and should help states develop streamlined assessment strategies that facilitate cost-effective international comparisons of student performance.
As states reach important milestones on the way toward building internationally competitive education systems, the federal government should offer a range of tiered incentives to make the next stage of the journey easier, including increased flexibility in the use of federal funds and in meeting federal educational requirements and providing more resources to implement world-class educational best practices.
If you have federal “enabling” and “incentives” you cease to have truly voluntary state adoption — or movement to the “next stage” — of curriculum standards. And that is exactly what the core supporters of Common Core have wanted.
But aren’t standards just, well, standards, not curricula?
This is largely semantics. True, you can pinpoint what you want children to learn and when they should learn it without identifying how that goal should be reached. But just by defining the goal you are driving curricula, stating what must be taught. Indeed, there would be no point to the standards if the intention weren’t in some way to affect curricula — what is actually taught in the schools.
Of course, there is another part to this: the two federally funded national tests currently under development, which Hess is hearing some in Washington would like to see become just one test. But whether we have a federally backed testing monopoly or duopoly ultimately won’t matter: For the tests to have meaning they will have to include concrete content, and assuming performance on those tests will impact how much federal money states and districts get — which appears to be what the Obama administration wants, and is the only thing that makes sense for people who back federal “accountability” — you now have a de facto required, federal curriculum.
I hope Hess is correct and the Common Core coalition is fracturing. I am dubious, though, that any major fissures are being riven by a faction of zealots that has just gone too far. Based on both the evidence and logic, going too far has been the widely held goal for several years.
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Why Are Self-Proclaimed Deficit Hawks Unenthusiastic about the Ryan Budget?
Washington is filled with groups that piously express their devotion to balanced budgets and fiscal responsibility, so it is rather revealing that some of these groups have less-than-friendly responses to Congressman Ryan’s budget plan.
The Committee for a Responsible Federal Budget, for instance, portrays itself as a bunch of deficit hawks. So you would think they would be doing cartwheels to celebrate a lawmaker who makes a real proposal that would control red ink. Yet Maya MacGuineas, president of the CRFB, basically rejects Ryan’s plan because it fails to increase the tax burden.
…while the proposal deserves praise for being bold, the national discussion has moved beyond just finding a plan with sufficient savings to finding one that can generate enough support to move forward. All parts of the budget, including defense and revenues, will have to be part of a budget deal… Now that both the White House and House Republicans have made their opening bids, this continues to reinforce our belief that a comprehensive plan to fix the budget like the one the Fiscal Commission recommended has the best hope of moving forward.
I’m mystified by Maya’s reference to an “opening bid” by the White House. What on earth is she talking about? Obama punted in his budget and didn’t even endorse the findings of his own Fiscal Commission. But I digress.
Another example of a group called Third Way, which purports to favor “moderate policy and political ideas” and “private-sector economic growth.” Sounds like they should be cheerleaders for Congressman Ryan’s plan, but they are even more overtly hostile to his proposal to reduce the burden of government.
House Budget Chairman Paul Ryan’s budget is a deep disappointment. There is a serious framework on the table for a bipartisan deal on our long term budget crisis. It’s the Bowles-Simpson blueprint, now being turned into legislation by the Gang of Six. It puts everything on the table – a specific plan to save Social Security, significant defense cuts, large reductions in tax expenditures and reforms to make Medicare and Medicaid more efficient, not eliminate them.
That sounds hard left, not third way. But it’s not unusual. Many of the self-proclaimed deficit hawks on Capitol Hill also have been either silent or critical of Ryan’s plan.
Which leaves me to conclude that what they really want are tax increases, and they simply use rhetoric about debt and deficits to push their real agenda.