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By Neal McCluskey
The following is cross-posted from the National Journal’s Education Experts blog. This week’s topic: The Race to the Top program and the FY 2011 budget deal:
Having the advantage of writing this after the CR deal has been made, it appears that Race to the Top will get $700 million but still work through states. So no regional or direct-to-district grants, at least from what I’ve been able to divine.
Unfortunately, the root issue here isn’t Race to the Top — it’s federal involvement in education at all. As long as Washington spends money on education it will call the shots, whether that’s through competitions like Race to the Top, or rules attached to IDEA, or Title I, or student-aid programs. Washington will be the puppet master, and it will waste taxpayer money on programs that do not work.
We know this well from the four, wallet-emptying decades in which we’ve had major federal involvement in education. Yet we are still having the same, misguided arguments: Not whether Washington should be setting education policy at all, but what sort of policy it should set. And the two sides continue to come down, basically, to whether Washington should spend lots of money with copious “accountability,” or spend oodles without as many rules.
Both are wrong. The Founders purposely gave the federal government only specific, enumerated powers, and none of them include the authority to make education policy. And as I have laid out many times, the “general welfare” clause, the “necessary and proper” clause, the taxation clause — none of these gives Washington the authority to do anything in education. Only the 14th Amendment gives it a role in education — to prohibit unequal provision of education by states and districts — as well as Article I, Section 8, which gives the Feds exclusive jurisdiction over the District of Columbia.
Of course, the Founders didn’t give Washington only very limited, specific powers for no reason. They did so because they knew that the strong tendency is for government to be captured by small groups and used not for the public good, but the good of those who wield governmental power. Today, that means politicians often using “the children” as pawns to win political games — spending money to show how much they “care” — while special interests employed by our schools lobby and politick for ever-more dough, weak accountability, and hamstrung competition. And some wonder why federal spending on education has skyrocketed while outcomes have stunk.
We can keep on bickering about Race to the Top and other proposals to twist a few screws on the dilapidated federal machine, or we can get Washington out of education altogether. Both the Constitution and educational success demand we do the latter.
Obey the Constitution is a post from Cato @ Liberty - Cato Institute Blog
By Roger Pilon
The modern liberal’s quest for equality over liberty takes many forms, and you can count on the editorialists at The New York Times to promote them all, sooner or later. Today, they’re urging the Pentagon to “officially integrate small armor and infantry units with women.”
Why? Well, female soldiers, they note, are already involved in de facto combat situations in Iraq and Afghanistan, at least peripherally. But the main reason, they make clear, is that women’s “careers are crimped as leadership promotions flowed more to men with combat experience.” Indeed, the editors tell us that the March 7 report of the Military Leadership Diversity Commission found “ethnic, gender and cultural problems hindering career advancement in the military,” leading the Times to aver that “the nation’s female soldiers deserve a fair chance at advancement.”
Never mind the Israeli experience with women in combat. (There’s a nation that can’t afford social experiments in its military.) The Times dismisses objections as mere “shibboleths.” And not at all do the editors acknowledge that our military has one and only one function – not global law enforcement, not humanitarian intervention, certainly not facilitator of equal-opportunity career advancement, but to protect our liberties against threats from abroad, by means that will ensure that end, swiftly and with the least cost to our soldiers and ourselves.
Egalitarianism Run Amok is a post from Cato @ Liberty - Cato Institute Blog
By David Rittgers
The Wall Street Journal law blog has a piece up on how the budget crisis is impacting public defenders:
Funding constraints have prompted states and counties to lay off public defenders, hold the line on salaries, and reduce the amount defenders can spend case investigators and staff training, the WSJ reports.
Public defenders maintain that they should be insulated from budget cuts for two reasons, the first being that they were sorely underfunded before the recession came along. Secondly, they point to the fact that states have a duty, enshrined in Gideon v. Wainwright, to provide indigent criminal defendants with the right to counsel.
Stephen J. Schulhofer and David Friedman recently published a Cato Policy Analysis, Reforming Indigent Defense that proposes a free market solution: use vouchers instead of public defenders. This would eliminate the overhead of keeping defense attorneys on the public payroll and improve the quality of representation. As they put it in a related op-ed:
Vouchers would greatly improve the quality of defense representation, because attorneys hoping to attract business would have to serve their clients well. Better representation will, in turn, produce at least three benefits for society. First, improving defense services will reduce the potential for mistakes. It will be less likely that innocent persons will be wrongfully convicted and less likely that the actual perpetrators will remain free to repeat their offenses.
Second, improving defense services will minimize adverse consequences even for those who would be acquitted under current systems of indigent defense. A better defense makes it more likely that the innocent will be released from custody sooner, with less disruption to their lives and less expense for the jails that hold them.
Third, improving indigent defense will bring better information to the sentencing process — making it more likely that appropriate, cost-effective punishments will be imposed on those who are guilty.
My colleague Tim Lynch will speaking on Capitol Hill today at a related event, The Last Sacred Cow: How Congress Can Cut Criminal Justice Spending Without Compromising Public Safety.
Reforming Indigent Defense is a post from Cato @ Liberty - Cato Institute Blog
By George Scoville
Thursday Links is a post from Cato @ Liberty - Cato Institute Blog
By Roger Pilon
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.
‘We’re All In This Together’ is a post from Cato @ Liberty - Cato Institute Blog
By Gene Healy
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.
The Obama OLC’s Bogus Argument for a ‘Historical Gloss’ on the Constitution is a post from Cato @ Liberty - Cato Institute Blog
By Daniel J. Mitchell
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.
Obama’s Tax Increase Trigger: Punishing Taxpayers with Automatic Tax Hikes When Politicians Overspend is a post from Cato @ Liberty - Cato Institute Blog
By Tad DeHaven
Republican and Democrat 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.
Budget Agreement: Overall Spending Increases is a post from Cato @ Liberty - Cato Institute Blog
By John Samples
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.
New Evidence on the Costs of Mandating Disclosure is a post from Cato @ Liberty - Cato Institute Blog
By Edward H. Crane
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.
Just a Cog in the National Project is a post from Cato @ Liberty - Cato Institute Blog
By George Scoville
Wednesday Links is a post from Cato @ Liberty - Cato Institute Blog
By Daniel J. Mitchell
In his speech this afternoon, President Obama is expected to call for, among other things, an increase in taxes on investors, entrepreneurs, small business owners, and other “rich” people who make over $250,000 a year. The goal, the President claims, is to reduce deficits.
America has a spending problem, not a revenue problem, as the Congressional Budget Office chart below shows. The federal budget has ballooned nearly $2 trillion in the past 10 years and that increased burden of spending is undermining growth. And if left on autopilot, the spending crisis will get worse in coming decades. Rather than trying to keep up with that growing burden of government — an impossible task — by raising taxes, our leaders should be looking at ways to treat the underlying problem: Our government is too big and it spends too much. We cannot tax our way out of this problem, particularly since politicians will spend any additional revenue.
The federal tax burden will rise above the historical average of 18 percent of GDP with no help from President Obama. Even without expiration of the Bush tax cuts or the alternative minimum tax, the tax burden is expected to climb because even modest economic growth slowly but surely pushes more and more people into higher tax brackets.
The chart below shows CBO’s estimate of personal income tax revenue based on current policy (as opposed to estimates based on current law, which includes already legislated tax hikes). To be more specific, it shows how much revenue the government will collect from the individual income tax even if the 2001 and 2003 tax cuts are made permanent and the AMT is indexed.
The aggregate individual income tax burden will increase by roughly 5 percentage points of GDP when compared to the long-run average of about 8 percent of GDP (the CBO estimate only goes to 2035, so I extrapolated to show the same time period as the first chart). And remember, this is the forecast of what will happen to income tax revenues even if politicians don’t impose any new laws to coercively extract more revenue.
This might not be too bad if other taxes were falling, but that’s not what CBO is projecting. As such, this big increase in revenue from the individual income tax means that the overall tax burden will climb by approximately the same amount.
In other words, revenue likely will rise close to 25 percent of GDP as we approach the next century. So if we use this more realistic baseline, we can say that more than 100 percent of the long-run deficit problem is because spending is out of control.
The second reason for a firm no-tax increase position is that higher taxes are a very ineffective way of reducing budget deficits. Indeed, tax increases generally backfire and lead to more red ink. To understand why, it’s important to put away the calculator and instead consider the real world of politics and public policy. For instance:
Tax increases rarely raise as much revenue as predicted by government forecasters. This is because of “Laffer Curve” effects, as taxpayers change their behavior to earn less income and/or report less income. Simply stated, people respond to incentives, and this means taxable income falls as tax rates increase.
o Tax increases erode pressure to control spending. Why would politicians want to make tough decisions and upset special interest groups, after all, when there is going to be more revenue (or at least the expectation of more revenue)? Using more colloquial language, trying to control spending with higher taxes is like trying to cure alcoholics by giving them keys to a liquor store.
o Milton Friedman was right when he said that, “In the long run government will spend whatever the tax system will raise, plus as much more as it can get away with.” In other words, if politicians think they can get away with deficits averaging, say, 5 percent of GDP in the long run, then the the only impact of higher taxes is an equal amount of additional spending – while still retaining deficits of 5 percent of GDP.
The real-world evidence certainly points in this direction. We’ve seen “bipartisan budget summits” several times in Washington, and the result is more spending rather than lower deficits.
America’s fiscal challenge is too much spending. Government is too big and it is wasting too much money. Taking more money from the American people is not the way to solve that problem.
Obama Needs to Look at the Other Side of the Ledger is a post from Cato @ Liberty - Cato Institute Blog
By Jim Harper
Every lover of liberty and the Constitution should be offended by the moniker “Privacy Bill of Rights” appended to regulatory legislation Senators John Kerry (D-MA) and John McCain (R-AZ) introduced yesterday. As C|Net’s Declan McCullagh points out, the legislation exempts the federal government and law enforcement:
[T]he measure applies only to companies and some nonprofit groups, not to the federal, state, and local police agencies that have adopted high-tech surveillance technologies including cell phone tracking, GPS bugs, and requests to Internet companies for users’ personal information–in many cases without obtaining a search warrant from a judge.
The real “Privacy Bill of Rights” is in the Bill of Rights. It’s the Fourth Amendment.
It takes a lot of gall to put the moniker “Privacy Bill of Rights” on legislation that reduces liberty in the information economy while the Fourth Amendment remains tattered and threadbare. Nevermind “reasonable expectations”: the people’s right to be secure against unreasonable searches and seizures is worn down to the nub.
Senators Kerry and McCain should look into the privacy consequences of the Internal Revenue Code. How is privacy going to fare under Obamacare? How is the Department of Homeland Security doing with its privacy efforts? What is an “administrative search”?
McCullagh was good enough to quote yours truly on the new effort from Sens. Kerry and McCain: “If they want to lead on the privacy issue, they’ll lead by getting the federal government’s house in order.”
The ‘Privacy Bill of Rights’ Is in the Bill of Rights is a post from Cato @ Liberty - Cato Institute Blog
By David Boaz
The Washington Post‘s Fact Checker column looks at the claim that this week’s budget deal delivers the biggest spending cuts in history:
For instance, during World War II, the federal budget soared from $9.4 billion in 1940 to nearly $93 billion in 1945. Talk about an expansion of government! But then in 1946, the budget was cut to $55 billion. That’s a cut of $37 billion, technically less than the $38.5 billion in cuts reached last week. But it’s also a cut of 40 percent, which means it is 40 times larger than the deal that is routinely described as historic….
There is yet another way to measure these cuts. As little as $15 billion of the cuts are in the domestic nondefense discretionary budget. How do these cuts stack up to the historical record, when adjusted for inflation (2005 dollars)? From 1981 to 1982, this part of the budget fell by $43 billion (this was during President Ronald Reagan’s term, so at the same time, the defense budget went up $30 billion.) This part of the budget also fell about $15 billion — twice — during the Clinton administration. So, again, the current round of cuts are not the biggest even when looked at through this narrow prism.
Fact Checker Glenn Kessler concludes:
The Pinocchio Test
We’re going to give the politicians a pass here. Technically, these appear to be the largest raw-dollar spending cuts in history, and we have not found evidence that either Obama or Boehner has pretended otherwise — at least in public. (Note that Obama and the White House always are clever to insert the word “annual” before the phrase “spending cut.”) At worse, these are one-Pinocchio violations, typical bragging that all of the strum and drang over the budget was worth the effort.
But it is up to the media to provide context to these claims. On that score the media, including (alas) The Washington Post, misled its readers.
Two Pinocchios
(to the media)
Hats off to Glenn Kessler for holding his colleagues to a higher standard than politicians. And note that Chris Edwards and I have also questioned these claims about “the biggest cuts ever.”
Two Pinocchios for ‘Biggest Cuts Ever’ is a post from Cato @ Liberty - Cato Institute Blog
By Neal McCluskey
Now that details of the please-no-shutdown budget deal are emerging, at least one thing is clear: Republicans caved on education spending. Rather than demand meaningful cuts to the absurd panoply of federal education programs that succeed only at sucking money out of taxpayers’ wallets, GOP negotiators agreed to mere token trims. Quickly adding together the education programs in the list of cuts put out by Republicans, the total comes to only about $1.6 billion, from an FY 2010 Department of Education appropriation of $64.1 billion. That’s a measly two-percent shave.
And Republicans didn’t just surrender on big cuts that any reasonable analysis screams should be made post-haste. They actually handed President Obama additional money and power with $700 million in new funding for Race to the Top, the supposedly one-time “stimulus” program that the President has used to bribe states into adopting, among other things, national curriculum standards.
If the goal of budgeteers is to cut programs that don’t work and are unconstitutional – as it absolutely should be — education is the first area in which they should start swinging the spending axe, or better yet, the chainsaw. But no: Because few in Washington have the political fortitude to eliminate spending done in the name of “education” — think of the children! – all the negotiators took were a couple of half-hearted strokes with a worn down emery board.
This is terrible news on its own, and it sure doesn’t bode well for negotiations yet to come.
Negotiators Wield the Emery Board against Massive Education Waste is a post from Cato @ Liberty - Cato Institute Blog
By Andrew J. Coulson
I have an op-ed in the Huffington Post today arguing that it’s possible to ensure universal access to education without compelling anyone to support types of instruction that violate their convictions. This eliminates the central objection that the ACLU and ADL have given for their opposition to private school choice. Indeed, if those organizations really care about freedom of conscience, they should prefer the policy solution I outline to the status quo system in which every taxpayer is compelled to support a single government organ of education. Or is there some other reason why the ACLU and ADL oppose liberating American education?
Feel free to chime-in in the comments section on Huff Po.
“Winning” is a post from Cato @ Liberty - Cato Institute Blog
By Ilya Shapiro
The legal battle over SB 1070 is far from over, so neither side should cheer or despair. The upshot of the Ninth Circuit’s splintered and highly technical opinion is merely that the district court did not abuse its discretion in enjoining four provisions. The court could not and did not rule on the legislation’s ultimate constitutionality and, of course, SB 1070’s remaining provisions—the ten that weren’t challenged and the two on which Judge Bolton rejected the government’s argument—remain in effect.
But the legal machinations are only half the story. While I personally think that all or almost all of the Arizona law is constitutional, at least as written (abuses in application are always possible), it’s bad policy because it harms the state’s economy and misallocates law enforcement resources. But I also understand the frustration of many state governments, whose citizens are demanding relief from a broken immigration system that Congress has repeatedly failed to fix. Whether it’s stronger enforcement (Arizona) or liberalizing work permits (Utah), states should not be forced into the position of having to enact their own piecemeal immigration solutions while living within a system where the regulation of immigration is a federal responsibility. Congress has dropped the ball in not passing comprehensive immigration reform, despite facing a system that doesn’t work for anyone: not big business or small business, not rich Americans or poor ones, not skilled would-be immigrants or unskilled.
The federalism our Constitution establishes sometimes demands that the federal government act on certain issues. This is such a time and immigration is such an issue.
Arizona Immigration Decision Underlines Need for Fundamental Reform is a post from Cato @ Liberty - Cato Institute Blog
By Daniel J. Mitchell
If you are an average American, today is a great day. According to the Tax Foundation, you have finally worked long enough and earned enough money to satisfy the annual tax demands of federal, state, and local governments.
This means you now get to keep any additional income you earn.
That’s the good news. The bad news is that Tax Freedom Day only measures the direct and immediate impact of taxation. It doesn’t measure the overall burden of government. This chart from the Tax Foundation shows that the fiscal burden of government has jumped enormously since the end of the Clinton years.
Happy Tax Freedom Day! is a post from Cato @ Liberty - Cato Institute Blog
By Christopher Preble
Last week I expressed my disappointment with Paul Ryan’s budget plan, specifically about his unwillingness to cut military spending. Some people think that he does cut spending through his acceptance of Secretary Gates’s $78 in “cuts.” (see, for example, Sen. John Sununu; Sen. Joseph Lieberman, AEI’s Gary Schmitt and Tom Donnelly; and the Heritage Foundation’s Baker Spring).
So either I am wrong, or they are. Let me try to set the record straight.
First, all of Ryan’s other savings — savings which I support — were projected either against the Obama administration’s FY 2012 budget or against the current budget baseline. For example, according to Ryan’s own “Key Facts” his plan “Cuts $6.2 trillion in government spending over the next decade compared to the President’s budget, and $5.8 trillion relative to the current-policy baseline.” With respect to military spending, however, Ryan’s plan basically follows the Obama/Gates budget, proposing to spend a staggering $670.9 billion in FY 2012. The Obama administration’s DoD budget request for FY 2012 — including the Pentagon’s base budget plus overseas contingency operations (OCO) — totals $670.9 billion as well. Of course, that total leaves out national defense spending tucked away in other departments (including nuclear weapons spending in the Department of Energy). Total national defense spending in FY 2012 will top $700 billion. I stand by my earlier assertion that the Pentagon’s budget escapes from Ryan’s budget axe “essentially unscathed.”
Ryan and others claim that military spending has already been cut, hence the decision to embrace this portion of the president’s budget. Sen. Lieberman explained to Bloomberg news, “To a certain extent, Secretary Gates has enabled us at least temporarily to take defense off the table because he has initiated his own round of defense cuts.”
“To a certain extent” is doing a lot of work in that statement. In fact, Gates and Obama do not cut military spending.
First, they don’t claim to do so. These supposed cuts are only “cuts” in Washington-speak. The Pentagon’s base budget under both the Ryan and Obama plans will increase 1 percent in real, inflation-adjusted terms. See the table below, recreated by my colleague Charles Zakaib from the official DoD budget request.
Second, Ryan claims that Gates’s “exhaustive review of the Pentagon’s budget” identified $178 billion in savings. It does nothing of the sort. By Ryan’s own admission, taxpayers will see only $78 billion of these; the other $100 billion are to be “reinvested” elsewhere in the Pentagon. (They’re always “investments” when you’re spending the taxpayers’ money, even when Republicans do it.)
So we’re really talking about $78 billion toward deficit reduction over the next five years, or approximately 2.6 percent of the Pentagon’s base budget (excluding the wars) over that same period. With all due respect, that isn’t a bold plan for reducing the crushing burden of spending and debt; that’s a rounding error.
What’s more, it is highly unlikely that these savings will materialize. Many of these efficiencies involve consolidation of commands — something that Congress has already balked at — and unspecified savings that are relatively easy to identify, but extremely difficult to implement.
But if, by some miracle, Robert Gates’s successor(s) manage to get them passed by Congress, those savings won’t actually be dedicated to deficit reduction: they will be completely devoured by spending on the wars. This is the greatest sham of all. Charles Knight at the Project on Defense Alternatives (and a key contributor to the Sustainable Defense Task Force, of which I was also a member) explains:
For several years now White House budget projections have included a “placeholder for outyear overseas contingency operations” most of which are accounted for by the wars in Iraq and Afghanistan. This placeholder number has been and remains $50 billion. Every year actual OCO (overseas contingency operations) spending turns out to be several times that number. FY11′s OCO is $159 billion and FY12′s is $118 billion.
Adjusting for the effect of the new OCO for FY12, the $68 billion budgeted above the placeholder of $50 billion eats up most of the $78 billion in Pentagon cuts that Secretary Gates offered up in January to fiscal responsibility….The remaining $8 billion (and much more) will go to the war budgets when reality collides with placeholder projections.
On 14 February Pentagon Comptroller Hale confirmed that the $50 billion placeholders for FY13 and beyond was the “best we can do.” Others make an attempt to be more realistic. The high tech industry association called Tech America annually projects DoD budgets for ten years out. In their 2010 projection they estimate that OCO spending will be $102 billion in FY13, $69 billion in FY14 and $57 billion in FY15. When we subtract the $50 billion placeholder for each of those years and total the remainder we find that the Pentagon is likely to spend $78 billion more in the years FY13 through FY15 than in the White House budget projections.
I hope that I’m proved wrong. I hope that the wars in Iraq and Afghanistan are brought to a close. I hope that the Congress gets serious about tackling Pentagon waste, and stops treating the military budget as an elaborate jobs program. I hope that our brave men and women in uniform get the hardware, equipment, and training that they need, and that Americans get the “defense budget” that they deserve. But if past history is any guide, the Pentagon’s budget will continue to climb, other countries around the world will continue to free ride on Uncle Sam’s largesse, and U.S. taxpayers will be left to foot the bill.
No, Paul Ryan Really Doesn’t Cut Pentagon Spending is a post from Cato @ Liberty - Cato Institute Blog
By Andrew J. Coulson
Rhee, the former chancellor of DC Public Schools, and Moskowitz, head of a NYC charter school, were asked at an event last week what they thought of the Supreme Court decision upholding Arizona’s K-12 scholarship donation tax credit program. The program offers a dollar-for-dollar tax cut to anyone who donates to a non-profit Scholarship Tuition Organization (and the STOs then help families pay for private school tuition).
Children’s Scholarship Fund president Darla Romfo asked the question, and here’s the answer she received.
Michelle Rhee and Eva Moskowitz on School Choice is a post from Cato @ Liberty - Cato Institute Blog
By Tim Lynch
From today’s Washington Post:
During his campaign, Obama supported reintroducing the lapsed assault weapon ban, promised to eliminate an amendment requiring the FBI to destroy records of gun buyers’ background checks and advocated closing the gun-show loophole. Since taking office, the president has done none of that, and before the midterm elections, he shelved a proposal requiring gun dealers to report bulk sales of high-powered semiautomatic rifles. In his State of the Union address, just weeks after the Giffords shooting in January, Obama made no mention of guns. … Other leading Democrats, even those traditionally willing to offer full-throated support for gun-control efforts, have grown surprisingly less vocal as they take on more of a national role.
The Dems have lost enthusiasm for gun control. No question. But seems to me that media interest is also a big factor here. When the news media turned from Gabrielle Giffords to Libya, that’s where Obama went next.
For related Cato work, go here and here.
Political Trends and Gun Control Politics is a post from Cato @ Liberty - Cato Institute Blog
By George Scoville
Tuesday Links is a post from Cato @ Liberty - Cato Institute Blog
By Roger Pilon
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.
It’s Bigger Than the Budget is a post from Cato @ Liberty - Cato Institute Blog
By Gene Healy
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.
Congress: The Least Dangerous Branch is a post from Cato @ Liberty - Cato Institute Blog
By Tad DeHaven
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.
Farm Subsidies to be Cut? is a post from Cato @ Liberty - Cato Institute Blog
By Ilya Shapiro
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.
Even University Presidents Are Bound by the Constitution is a post from Cato @ Liberty - Cato Institute Blog