• One thing is clear after President Obama’s speech yesterday: He envisions a smaller national debt, but a much bigger government.
• One percent is better than nothing, but it’s still pretty close to nothing.
• One thing is clear about climate change: it’s causing a rising tide of red ink in Washington. See the forthcoming book Climate Coup: Global Warming’s Invasion of Our Government and Our Lives and join us for the accompanying book forum, featuring MIT meteorologist Richard Lindzen and American Meteorological Society fellow Bob Ryan, on Wednesday, May 4 at 4:00 p.m. Eastern. Complimentary registration is required of all attendees by 12:00 p.m. Eastern on Tuesday, May 3. If you cannot join us in person, we hope you’ll watch live online.
• One cannot be serious about reining in reckless spending without putting the Pentagon on the chopping block.
• One need not look very far to see how similar Republicans and Democrats are:

Today POLITICO Arena asks:

Given that Planned Parenthood’s online donations have shot up over the last two months, is Mike Pence (R‑Ind.) correct to say it could — and should — operate without taxpayer funds?

My response:

Given that many Americans believe that abortion is murder, of course Planned Parenthood, the nation’s leading abortion provider, should not be publicly funded. (And please don’t say that no taxpayer funds go for abortions: money is fungible.)

Democrats think that almost everything should be publicly funded – education, health care, retirement, the arts. What’s next? News? Entertainment? Oh, I forgot: NPR and PBS. But only that programming that meets their exacting standards. FOX News? Faget about it! Where you from? Kansas? And they wonder why there’s a Tea Party.

Last week, the Obama Justice Department’s Office of Legal Counsel released its formal opinion [.pdf] on the President’s “Authority to Use Force in Libya.” OLC is the professional corps providing advice to the president on the legality of his actions, and it’s a much-coveted berth for ambitious lawyers. But, reading the memo over (it’s officially dated April Fool’s Day—make of that what you will), it occurred to me that, personally, I’d sleep better at night as in-house counsel for Fannie Mae or Archer Daniels Midland.

Though the Office is supposed to help the president “take Care that the laws be faithfully executed,” OLC lawyers typically end up telling their immediate employer, “why, yes: the action you’ve already decided to take turns out to be perfectly constitutional.” The Libya memo perfectly illustrates that dynamic.

Per OLC, the constitutionality of our Libyan adventure “turns on two legal questions”:

1. Do the bombing raids and airstrikes the president ordered “serve sufficiently important national interests” to make them permissible exercises of his constitutional powers as “Commander in Chief and Chief Executive”?

2. are “the military operations that the President anticipated ordering” limited enough in “nature, scope, and duration,” such that they do not “constitute a ‘war’ requiring prior specific congressional approval under the Declaration of War Clause?”

In a post over at the Washington Examiner’s blog, I address the second argument, pointing out that, by the Secretary of Defense’s own admission, what we’re doing in Libya is “war,” even if the Obama team prefers Orwellian euphemisms like “kinetic military action.”

As for the first question, whether airstrikes on Libya serve “sufficiently important national interests,” is quite beside the point. The Constitution either gives the president the power to start nondefensive wars or it doesn’t. (It doesn’t). Whether any particular use of the asserted power is “in the national interest” isn’t a legal question, and executive branch lawyers in the president’s thrall are about the last people anyone actually interested in the national interest would consult for the answer.

There are many more problems with OLC’s constitutional case for war than I can treat in a single blogpost, but I’ll address one of them here (with more to come later, time permitting).

The OLC memo makes much of the “historical gloss” that they imagine coats the Constitution on account of past practice. The president’s lawyers note that prior presidents have used force abroad repeatedly without congressional approval, and assert that:

This historical practice is an important indication of constitutional meaning, because it reflects the two political branches’ practical understanding, developed since the founding of the Republic, of their respective roles and responsibilities with respect to national defense.

This is a familiar argument, but it’s bad history and bad constitutional theory.

The notion that past practice justifies current abuses has been a familiar one since Harry Truman’s “police action” in Korea, when one Democratic Senator justified Truman’s move by arguing that “on more than 100 occasions,” the president had ordered US forces into action without seeking congressional approval.

But as constitutional scholar Edward S. Corwin noted at the time, the majority of those episodes consisted of ‘‘fights with pirates, landings of small naval contingents on barbarous or semi-barbarous coasts, the dispatch of small bodies of troops to chase bandits or cattle rustlers across the Mexican border, and the like”–many of which were undertaken to protect American citizens, and most of which (before the 20th century at least) were consistent with the president’s constitutional power to “repel sudden attacks.”

Besides, if what you’re trying to do is figure out the original public meaning of constitutional text, the practice that counts most is early practice, contemporaneous with the people that ratified the text and had to interpret it. And there the record’s pretty clear. In his four-book series The Constitution in Congress, the University of Chicago’s David Currie exhaustively examined congressional and presidential interpretations of the Constitution in the young Republic. With regard to the Constitution’s allocation of war powers, Currie concluded that:

despite the usual line-drawing and factual difficulties the express position of every President to address the subject during the first forty years of the present Constitution was entirely in line with that proclaimed by Congress in the celebrated War Powers Resolution in 1973: The President may introduce troops into hostilities only pursuant to a congressional declaration of war or other legislative authorization, or in response to an attack on the United States.

But even had that not been the case, what would past practice add to the argument for presidential power? Anyone who sets up a written Constitution recognizes the possibility that the political branches might violate the original agreement. If those violations instead become, as OLC suggests they should, evidence of the “two political branches’ practical understanding”–indicative of constitutional meaning itself–then we have problems that go beyond our current difficulties with constitutional war powers. If misbehavior by the political branches alters the meaning of the constitutional text, then the administrative state is perfectly constitutional, bridges to nowhere are A‑OK under the General Welfare clause, and mandating low-flow toilets is an acceptable exercise of Congress’s regulatory power under our miraculously “glossy” Constitution.

When two branches gang up on the people and get away with it, OLC calls that “precedent.” But we have good reason to be wary of the argument that violations of the Constitution somehow amend the Constitution. It’s an argument that repudiates constitutionalism itself.

Responding to widespread criticism of his AWOL status on the budget fight, President Obama today unveiled a fiscal plan. It already is being criticized for its class warfare approach to tax policy, but the most disturbing feature may be a provision that punishes the American people with higher taxes if politicians overspend.

Called a “debt failsafe trigger,” Obama’s scheme would automatically raise taxes if politicians spend too much. According to the talking points distributed by the White House, the automatic tax increase would take effect “if, by 2014, the projected ratio of debt-to-GDP is not stabilized and declining toward the end of the decade.”

Let’s ponder what this means. If politicians in Washington spend too much and cause more red ink, which happens on a routine basis, Obama wants a provision that automatically would raise taxes on the American people.

In other words, they play and we pay. The last thing we need is a perverse incentive for even more reckless spending from Washington.

Republican and Democratic leaders have agreed to cut federal funding by $38 billion this year (versus fiscal 2010). What does that mean for the overall spending picture?

Based on estimates from the Congressional Budget Office, total federal outlays will still rise by approximately $177 billion.

Over the next few years, most arguments about campaign finance regulation will be about extending mandated disclosure to some of the independent spending freed up by the Citizens United decision.

Writing in the Wall Street Journal, James L. Huffman offers a unique perspective on mandated disclosure: he was a candidate for the U.S. Senate last year. He argues that mandated disclosure means incumbents know who funded the campaigns of their challengers. Incumbents do not have to actually threaten anyone; disclosure plus circumstances means a cautious businessperson will stay clear of electoral participation. Huffman also claims that some people who might have contributed to his campaign heard from associates of his opponent who said contributing to Huffman might be a bad idea.

We have heard such testimony before about the malign effects of disclosure. George Soros said some potential contributors to his efforts to unseat former President George W. Bush stayed on the sidelines because of concerns about publicity (see James V. Grimaldi and Thomas B. Edsall, “Super Rich Step Into Political Vacuum; McCain-Feingold Paved Way for 527s” The Washington Post, October 17, 2004). Now we have a Senate candidate citing “dozens” of examples of a similar chilling of political speech.

Some might think incumbent protection is no longer a problem since 69 House seats changed hands in 2010 (and a similar number in the two previous House elections). If you think that, please recall that the House has 435 seats, all of which could potentially change hands. Yes, the advantages of incumbency have become somewhat smaller in recent years. But those advantages remain significant, and disclosure does increase the risk of contributing to a challenger, especially when the odds are overwhelming that those now in office will win re-election.

What should be done? Huffman notes that many Americans consider mandated disclosure to be all benefits and no costs. We might begin by gaining a more realistic view of the disclosure calculus. That more realistic view should include the costs of disclosure including lower participation and the ways mandated disclosure make public debates more irrational. At a minimum, existing disclosure thresholds should be dramatically raised. Forcing disclosure of the names of those who contribute less than $1,000 serves no public purpose.

We also should not mandate disclosure of the names of those who support speech independently of candidates and the parties. The only justification for such a mandate would be educating the voters. In other words, voters are thought to look for cues about who to vote for by considering who spends money on speech favoring a candidate. Does that seem plausible? If not, forced disclosure of independent spenders would not be constitutional. If Congress nonetheless enacts disclosure for independent spending, the U.S. Supreme Court should rigorously consider both the end served by such laws and the relationship between the means of disclosure to that end. Does disclosure of independent spending really educate any voters? If so, what about the costs to free speech identified by Professor Huffman? Once we set aside conventional pieties, does forcing people to tell government officials about their political activities really offer much to nation? Or does such coercion do little more than indulge those who equate politics with the pleasures of preaching hatred of those they despise?

Last year I wrote a Cato policy analysis of the justifications for disclosure after Citizens United.

Brad Thompson’s excellent new book, Neoconservatism: An Obituary for an Idea, adroitly dissects this pernicious political philosophy. He has received some criticism for attempting to demonstrate that Leo Strauss, the philosophical godfather of so many neocons, had a certain sympathy with fascism. Indeed, while stating that he is not saying neoconservatives have fascist designs, Thompson does suggest that their philosophy could pave the way to a kind of “soft fascism.” Far be it from me to pass judgment on such academic debate, but it is interesting to consider the following from the noted neocon columnist for the New York Times, David Brooks, writing in that paper on March 10:

Citizenship, after all, is built on an awareness that we are not all that special but are, instead, enmeshed in a common enterprise. Our lives are given meaning by the service we supply to the nation. I wonder if Americans are unwilling to support the sacrifices that will be required to avert fiscal catastrophe in part because they are less conscious of themselves as components of a national project.