Between ongoing publication of Edward Snowden’s leaks and a series of frankly unprecedented disclosures by the government itself, the public now knows quite a bit about the NSA’s controversial telephony metadata program, which makes use of the Patriot Act’s §215 to collect, in bulk, nearly all Americans’ domestic call detail records from telephone carriers. We know far less, however about the government’s bulk collection of Internet metadata under FISA’s pen register/trap-&-trace authority, which supposedly ceased in 2011—though some such collection almost certainly continues in a more limited form. That collection merits closer attention, because the legal argument that bulk metadata acquisition doesn’t violate the Fourth Amendment—rehearsed in a recent post at Just Security by Orin Kerr—simply doesn’t work for acquisition of Internet metadata at the backbone, for technical reasons that it’s not at all clear the Foreign Intelligence Surveillance Court has considered.
The FISC’s recently declassified memorandum opinion authorizing bulk telephony metadata collection contains a dismayingly cursory Fourth Amendment analysis resting on the now-familiar reasoning of Smith v. Maryland: Users voluntarily convey phone dialing information to a “third party” (i.e., the phone company), knowing that information will be retained in the company’s records for routine business purposes. They thereby “assume the risk” that these records will be shared with the government—notwithstanding any contrary promises of confidentiality—and so waive their Fourth Amendment expectation of privacy in that information. This is the so-called “third party doctrine.” The ruling in Smith has been widely and justly condemned—and as Jennifer Granick has ably argued, is of dubious relevance to NSA’s bulk collection program anyway. But let’s pretend for the moment, strictly arguendo, that this reasoning is not crazy on its face.
We often see Smith glossed as standing for the proposition that, to borrow Kerr’s phrasing, “metadata… is not protected under the Fourth Amendment.” What’s important to recognize here, though, is that this isn’t strictly accurate. The government may not, for instance, break into my desk drawer to obtain my old phone bills on the theory that such information is categorically unprotected, however and wherever obtained. Rather, Smith turns on an argument about one’s expectation of privacy in information knowingly conveyed to a provider and routinely stored in its business records when the government obtains such information from that provider. (The dialing information in Smith was actually obtained in realtime via a “pen register” device installed at the phone company’s central offices, rather than via business records, but what matters is that the government was still obtaining from the phone company the very information routinely recorded and retained by the phone company for its business purposes.) The Court in Smith explicitly distinguished such records from the contents of a telephone communication, which still enjoy Fourth Amendment protection, even though those call contents are conveyed through the provider, and the provider will typically have the technical capability to intercept and record such content. One may still “assume the risk” that the other party to the call will disclose its contents to law enforcement, but callers are not imagined to assume any such risk vis-à-vis the phone company itself, even though the carrier is capable of disclosing those contents to the government as well. Hold that thought for a moment.
Returning to the newly released FISC opinion, we find reference on page 8 to another case in which that court had reason to analyze the bulk collection of metadata, and similarly found no Fourth Amendment obstacle to the collection, seemingly relying on the same reasoning from Smith v. Maryland. A brief passage from that earlier opinion takes up the question of whether the enormous volume of collection makes a difference, concluding that “[s]o long as no individual has a reasonable expectation of privacy in meta data [sic], the large number of persons whose communications will be subjected to the … surveillance is irrelevant to the issue of whether a Fourth Amendment search or seizure will occur.”
A bit later, on page 20, the FISC again references prior rulings on bulk collections “different from the one at issue here,” this time explicitly citing the FISA pen register provision, 50 USC §1842(c)(2). It seems reasonably likely that these are references to either the same opinion or a series of related opinions validating bulk collection of Internet metadata. It is, of course, impossible to tell for sure from such brief excerpts, but the quoted passage suggests that the FISC may be misreading Smith as standing for the proposition that “meta data” as such lacks Fourth Amendment protection.
That’s potentially significant because an enormous amount of public reporting—stretching back to whistleblower Mark Klein’s 2006 disclosure of a “secret room” where NSA filtered essentially all Internet traffic routed by AT&T—suggests that NSA is pulling at least some of that metadata directly off the Internet backbone via equipment installed at the facilities of Internet Service Providers. Indeed, for communications merely transiting through the United States—such as an e-mail sent from one foreign provider to another—this might be the only place to acquire the relevant metadata. It’s also the most obvious reason to use a pen register order, since records held by providers like Google and Yahoo could also presumably be obtained via bulk §215 orders of the same sort that are served on telephone carriers.
The trouble, as I explained in a recent article for Ars Technica, is that the Internet functions quite differently from the traditional circuit-switched telephone network. On the phone network, a binary distinction between “content” and “metadata” works well enough: The “content” is what you say to the person on the other end of the call, and the “metadata” is the information you send to the phone company so they can complete the call. But the Internet is more complicated. On the Open Systems Interconnection model familiar to most techies, an Internet communication can be conceptualized as consisting of many distinct “layers,” and a single layer may simultaneously be “content” relative to the layer below it and “metadata” relative to the layer above it.
To make this concrete (and oversimplifying slightly): Suppose you send an e-mail to me, the user jsanchez at the server cato.org, over a broadband connection provided by Comcast. Relative to the contents of your message, the e-mail header containing the sender, recipient, and other information is “metadata.” But Comcast wouldn’t normally have any reason to “look” at that header information, let alone store it in a “business record,” in order to route the data properly—any more than Verizon would normally eavesdrop on the part of a phone call where you’re asking a receptionist at a corporate switchboard to connect you with a particular party. The ISP is just moving packets from one IP address to another—from your laptop to your e-mail server (or maybe not, if you happen to run your own e-mail server), and then from your e-mail server to Cato’s. All the ISP normally needs to “look at” to do its job is that IP address layer. And the IP addresses it processes might be uniquely associated with a particular domain (like cato.org), but could just as easily be shared among several domains. Only once those packets arrive at their destination does Cato’s e-mail server need to look at the e-mail header information to determine which inbox to drop the message in. Indeed, the only way Comcast would have that metadata is by illicitly intercepting the contents of my communications with Cato’s e-mail server. I could tell a similar story, though in some cases differing significantly in the details, for Web traffic, IM chats, peer-to-peer file transfers, and other forms of Internet communication.
The crucial point here is that the detailed “metadata” for a particular Internet communication, past the IP layer, typically wouldn’t be processed or stored by the ISP in the way that phone numbers and other call data is stored by the phone company. From the ISP’s perspective, all of that stuff is content. Depending on the particular communication, those further layers of metadata might be stored as business records by some other “third party” service provider, like Google—or they might not.
Either way, the acquisition of “metadata” other than IP addresses from an ISP or off the backbone is pretty clearly dissimilar from the collection of call data at issue in Smith in every important respect. It is not information conveyed to the Internet provider for the purpose of routing the communication; it is routing information conveyed through the provider just like any other content. Nor is it information the Internet provider would otherwise normally retain for routine business purposes. Again, relative to the ISP, it’s all just content.
Some of that content, I noted above, might ultimately be processed and retained as a business record by some other company—as, indeed, the contents of an e-mail or phone call might. And following the logic of Smith, those business records might then be obtained from those companies without a Fourth Amendment warrant. But none of that should matter to the Fourth Amendment analysis of acquisition at the ISP or backbone. As Justice Scalia wrote for the Court in Kyllo v. United States:
The fact that equivalent information could sometimes be obtained by other means does not make lawful the use of means that violate the Fourth Amendment. The police might, for example, learn how many people are in a particular house by setting up year-round surveillance; but that does not make breaking and entering to find out the same information lawful.
Similarly, the government might obtain from a hotel’s switchboard logs some record of which particular guest I asked to be connected with when I called—but this does not make it any less a Fourth Amendment search to wiretap my conversation with the concierge. The government might be be able to subpoena a list of my e-mail correspondents from Google or Cato—but that doesn’t make it any less a Fourth Amendment search to obtain the same data by seizing my laptop or tapping my broadband connection.
If this seems like nitpicking—who cares exactly where they get the data, once we’ve acknowledged they can get it legally from someone or other?—consider some concrete cases. Suppose I’m engaged in correspondence with a reporter for the Associated Press, and both of us are exclusively using our work accounts. The metadata records of that correspondence will normally exist only on Cato’s e-mail server and AP’s. Perhaps neither of us can vicariously assert a Fourth Amendment right against the compelled production of those server records. Nevertheless, as the FISC opinion notes, the record holder itself is free to do so. And in many circumstances, it’s quite plausible that both Cato and the AP would be prepared to contest an order for the production of those records on First and Fourth Amendment grounds. Comcast or AT&T, on the other hand, would not have much incentive to do so, and so it could easily make quite a big difference if, instead of obtaining records from Cato or the AP, the government is able to collect that information by selectively eavesdropping on the contents of the communications between their e-mail servers. More generally, Internet companies like Google and Yahoo have demonstrated substantially greater willingness than telecom providers to fight against government requests they regard as overbroad. Interception of metadata on the backbone, then, ensures that neither the end users nor the e-mail providers have any opportunity to assert their rights.
As a practical matter, this point seems to be largely moot in ordinary criminal investigations, because ordinary criminal investigators don’t have cutting edge semantic analyzers sitting on the Internet backbone. They’re investigating specific, known targets and the easiest place to get a specific target’s e-mail metadata is, unsurprisingly, from their e-mail provider, where the familiar argument of Smith is, let’s say, no less plausible than usual. It’s only for the kind of surveillance the NSA wants to do—identifying unknown targets through the bulk analysis of all metadata—that a pen register at the backbone would make sense. The only problem is, the legal analogy to a traditional telephone pen register completely breaks down once you look at the details.
We have not, of course, seen the FISC’s detailed legal analysis of bulk Internet pen registers—for all we know, the Court’s opinion includes a lengthy and sophisticated analysis of how the architectural differences between packet switched and circuit switched networks affect the applicability of Smith. But the language of the just-released §215 opinion does not fill me with confidence. Rather, the Court repeatedly writes as though a particular “type of information”—and indeed, perhaps anything characterized as “meta data”—can be categorically outside the protection of the Fourth Amendment, and thus obtained by any process described as a “pen register” without conducting a Fourth Amendment “search,” regardless of the technical details of how or from whom that information is obtained. But since those very details did matter in Smith, it ought to be troubling if Smith’s holding is being reflexively applied to a radically different fact pattern.
Since the FISC has already ordered the release of more legal opinions concerning the §215 program, this might be a good time to apply the same spirit of transparency to its rulings on pen/trap orders for Internet metadata. If I have not given the FISC judges enough credit here, the public can be reassured by witnessing directly the breadth of their technical understanding and the thoroughness of their legal reasoning. If, on the other hand, their reasoning has not been so well attuned to the technical details, letting legal scholars and technologists alike check their work could be the first step toward correcting a significant constitutional error.
This is cross-posted from Just Security, a newly-launched group blog on national security issues that I’ll be contributing to regularly.
On Aug. 27, during the reporter-vacation lull before Labor Day, the Department of Labor’s Office of Federal Contract Compliance Programs finalized its controversial rules requiring federal contractors to adopt “benchmarks” of 7 percent disabled employees in their workforce, a higher percentage than apparently prevails in the workforce at large. [Earlier here and here] OFCCP director Patricia Shiu insists the initiative should not be described as quotas, since contractors falling short will not suffer automatic penalty. Instead, they’ll be thrown into a process of auditing and having their internal procedures put under review and having to demonstrate progress and that sort of thing. Nothing penalty-like about that! Also, if their willingness to go along with this process doesn’t please the federal overseers, they can eventually be debarred from any future contract work, a devastating economic sanction for many firms. [Cleveland Plain Dealer, OFCCP, Government Executive, Federal News Radio]
Crucially, the feds are applying the regulation to a firm’s entire workforce even if only one of its divisions has federal contracts, so that if, say, a food company has a single business unit that caters to military needs, and nineteen others that do no federal contracting whatsoever, all twenty units must adopt the quot… sorry, benchmarks.
Competitive Enterprise Institute scholar Hans Bader makes several additional points:
- Under the regulations, contractors will be obliged to aim for a seven percent quota for each division, a significantly harder task than if it were just a company-wide quota.
- Dodgy terminology to conceal the reality of quotas is nothing new; federal officials have a long history of resorting to euphemism and vagueness to characterize them as benchmarks, goals, and so forth.
- While disabled quotas, in contrast to racial quotas, do not raise immediate red flags of unconstitutionality, there are serious doubts whether they’re actually a lawful application of the statutes Congress has passed in this area. While one such law does refer vaguely to affirmative action for the disabled, that does not necessarily provide a broad enough basis to authorize the new scheme.
- Will compliance and paperwork on this and a related veteran-quota measure cost federal contractors $6 billion a year, as the Associated General Contractors of America has it? Or less than one-fifth that sum, as OFCCP insists? And will OFCCP face even the slightest consequences if its estimates turn out to be low-balls and the contractors turn out to be right?
In response to withering criticism and political pressure, the U.S. Department of Justice is backpedaling on its lawsuit against Louisiana’s school choice program, which provides school vouchers to low-income students assigned to government-run schools receiving a D or F rating for performance. The lawsuit sought to “permanently enjoin the State of Louisiana from awarding any school vouchers to students attending schools in districts operating under federal desegregation orders” unless the state receives permission from the federal government. Now the DOJ is claiming in a carefully-worded letter to Congress that they were just looking for information:
To be clear, we are neither opposing Louisiana’s school voucher program nor seeking to revoke vouchers from any student. […] Our goal in filing a motion for further relief […] was straightforward: The United States is seeking the court’s assistance in ensuring that the information Louisiana collects in connection with its school voucher program is provided to the United States in a timely fashion and that Louisiana implements its program in full compliance with federal law, including the desegregation order in this case.
Unfortunately, the DOJ is being disingenuous. While their lawsuit would not have revoked vouchers that the state had already distributed, it would have blocked all future vouchers to students in districts under desegregation orders without federal permission. In other words, rather than leaving the choice of school in the hands of parents, parents would have to beg the federal government to allow their children to escape from failing government schools. This is problematic since the DOJ’s absurd definition of segregation would prevent black students from leaving a school that the DOJ deems “insufficiently black” because there are a greater percentage of black students than black people living in the district. For example:
The [DOJ’s] petition also cites Cecilia Primary School, which in 2012-13 “lost six black students as a result of the voucher program,” thereby “reinforcing the school’s racial identity as a white school in a predominantly black school district.” In the previous school year, the school’s racial composition was 30.1 percent black, which the DOJ notes was 16.4 percentage points lower than the black composition of the district as a whole. According to the NCES, in 2010-11 there were 205 black students out of a total enrollment of 758, so the school was 27 percent black. Assuming a constant total enrollment, the DOJ’s numbers suggest that there were 228 black students in 2011-12. The loss of six black students would mean the school’s racial composition shifted from 30.1 percent black to 29.2 percent black as a result of the voucher program. Again, imperceptible to the untrained eye but a grave threat to racial harmony according to the Obama administration’s Department of Justice.
Only the government could define “segregation” to include a school that is one-third black and two-thirds white or vice-versa.
The Goldwater Institute and the Black Alliance for Education Options are asking the judge to dismiss the case on behalf of four mostly minority families, arguing that “the judge doesn’t have jurisdiction over the voucher program statewide, and that the program doesn’t actually violate the federal desegregation orders the lawsuit claims it does.” Former Department of Justice Attorney Clint Bolick of Goldwater believes that the DOJ’s case is also weak on substantive grounds:
The children attending private schools with vouchers “are among the intended beneficiaries of the desegregation orders to which the United States seeks to subject the scholarship program (and, of course, they are intended beneficiaries of this lawsuit),” Bolick wrote in the motion. “It is perverse to attempt to thwart the children’s educational opportunities by invoking a desegregation degree intended to vindicate their educational opportunities.”
Since about 90 percent of participants in Louisiana’s voucher program are black, the DOJ’s lawsuit would primarily prevent black students from attending the schools of their choice. If the DOJ truly has the best interests of these students in mind, it will drop the lawsuit entirely.
Patrick J. Michaels and Paul C. "Chip" Knappenberger
Global Science Report is a weekly feature from the Center for the Study of Science, where we highlight one or two important new items in the scientific literature or the popular media. For broader and more technical perspectives, consult our monthly “Current Wisdom.”
The UN’s Intergovernmental Panel on Climate Change (IPCC) is set to release its Fifth Assessment Report (AR5) of the physical science of climate change at the conclusion on its editorial meeting in Stockholm scheduled from September 23-26th.
A version of its Summary for Policymakers (SPM)—perhaps the most influential portion of the report as it is the widest read—has been “leaked” to generate media interest in the upcoming release. It certainly has, but perhaps not in the manner intended. The leaked SPM has revealed a document so flawed and removed from current science that it has been described as not only being “obsolete on the day that it is released, but that it will be dead wrong as well” (okay, we wrote that).
In the Summary for Policymakers section of its Fourth Assessment Report (published in 2007) the IPCC had this to say about the rate of sea level rise:
Global average sea level rose at an average rate of 1.8 [1.3 to 2.3] mm per year over 1961-2003. The rate was faster over 1993 to 2003: about 3.1 [2.4 to 3.8] mm per year. Whether the faster rate for 1993 to 2003 reflects decadal variability or an increase in the longer-term trend is unclear.
Since then, we have highlighted numerous findings in the scientific literature that present strong evidence that the increase in the rate of sea level rise since 1993 is largely not an increase in the longer-term trend (or at least not from human-caused climate change which is the IPCC’s implication) and that the short-term rate of sea level rise has been slowing, and returning back towards the long-term average.
But the IPCC’s heart remains hardened.
The leaked version of the AR5 SPM includes this description of sea level rise:
It is very likely that the mean rate of global averaged sea level rise was 1.7 [1.5 to 1.9] mm yr–1 between 1901 and 2010 and 3.2 [2.8 to 3.6] mm yr–1 between 1993 and 2010. Tide-gauge and satellite altimeter data are consistent regarding the higher rate of the latter period. It is likely that similarly high rates occurred between 1920 and 1950.
Notice that they dropped any statement wondering whether the recent rate of rise was an increase in the longer-term trend or the result of short-term variability or other non- climate-change-related factors—even though the difference between these cases has implications for our understanding of sea level rise and how it may evolve into the future.
We repeat—recent scientific findings argue that rate of sea level rise since 1993 is little different than the long-term (20th century) rate of sea level rise once natural variability and non-climatic influences are accounted for.
Here are two papers demonstrating this fact.
The first was published by a research team led by Yoshide Wada and which we covered last summer. Wada and colleagues examined how much of an influence human pumping of groundwater for irrigation etc.—water which eventually finds its way into the global oceans—was having on the sea level. They found the impact to be quite significant, concluding:
[O]ur results compare well with independent estimates for the present groundwater depletion rates… and show that groundwater depletion is likely to be the major component of terrestrial contribution to sea-level change in the coming decades.
The data that they compiled on ground water depletion and surface impoundments (dams) show that for the period from 1993-2011, the net contribution (termed “dewatering” of the continents) has resulted in a sea level rise of about 0.44 mm/yr (+/- 0.1mm/yr)—and they predict this rate to increase by mid-century.
This 0.44 mm/yr (of the observed 3.2 mm/yr) of sea level rise since 1993 is not related to anthropogenic climate change as a result of greenhouse gas emissions.
A second relevant paper was published a few weeks ago. In this one, a team led by University of Colorado’s Ben Hamlington examined how large an influence multi-decadal natural oscillations of an important Pacific Ocean climate state—called the Pacific Decadal Oscillation (PDO)—has on global sea level. Since the PDO oscillation is pretty slow, approximately 60 years or so, the researchers note that it is “difficult to assess the contribution of decadal to multi-decadal climate signals to the global trend” using a record that only begins in 1993. By attempting to identify the influence of the PDO, Hamlington and colleagues could then estimate the PDO’s effect on the global mean sea level (GMSL) trend. They write:
We estimate the PDO contribution to the GMSL trend over the past twenty years to be approximately 0.49 ± 0.25 mm/year, and find that removing the PDO contribution reduces the acceleration in GMSL estimated over the past sixty years.
As the PDO is a natural phenomenon, that’s another 0.49 mm/yr (of the 3.2 mm/yr since 1993) not caused by anthropogenic greenhouse gas emissions.
A quick review of the math shows us that of the IPCC’s 3.2 mm/yr of sea level rise from 1993 only 2.27 mm/yr is left after accounting for natural oscillations in the Pacific and the “dewatering” of the continents.
Color us jaded, but 2.27 mm/yr doesn’t sound all that much different from the long-term 1.7 mm/yr, especially when the confidence intervals of the calculations are all included.
In other words, had the IPCC accurately reported the extant science on the factors behind the reported increase in the rate of sea level rise since 1993, the reader of the SPM would have been left with a much different impression of its evolution—one which the current situation is not that much different from the past (and to which we have largely adapted), instead of one in which the reader is left to think that anthropogenic climate change has resulted in a near doubling of the long-term rate of sea level rise.
Isn’t the IPCC supposed to be giving the best scientific explanation of what it taking place, not one which is colored by trying to support a fracturing consensus?
We think it is high time for the IPCC to end its charade (and save the global tax-payer huge sums of money in the process).
Hamlington, B.D.„ et al., 2013. Contribution of the Pacific Decadal Oscialltion to Global mean Sea Level. Geophysical Research Letters, doi: 10.1002/grl.50950.
Wada, Y., et al., 2012. Past and future contribution of global groundwater depletion to sea-level rise. Geophysical Research Letters, doi: 10.1029/2012GL051230
Christopher A. Preble
Today Cato released a new white paper, “The End of Overkill? Reassessing U.S. Nuclear Weapons Policy.” I am proud to have contributed to this effort with lead author Benjamin Friedman of Cato, and Matt Fay, a former Cato research assistant now enrolled in the History PhD program at Temple University. We argue that U.S. security does not require nearly 1,600 nuclear weapons deployed on a triad of systems—bombers, land-based intercontinental ballistic missiles (ICBMs), and submarine-launched ballistic missiles (SLBMs)—to deliver them. We estimate that a smaller arsenal deployed entirely on submarines would save roughly $20 billion annually while deterring attacks on the United States and its allies.
The paper is part of a broader project, “From Triad to Dyad: Rationalizing U.S. Nuclear Weapons Delivery Systems,” made possible by the generous support of the Ploughshares Fund. The project began as a top-line review of the triad, but expanded into a more comprehensive study of U.S. nuclear strategy and policy. Over the last year, we presented our preliminary findings at over a dozen public events in ten different cities, as well as several engagements here in Washington, D.C. This process generated useful feedback along the way.
Here are a few excerpts from “The End of Overkill?”:
- U.S. nuclear weapons’ policies have long rested on myths—about U.S. force plans, enemy capability, and the difficulties of deterrence—invented to manage Pentagon politics, placate allies and, to an extent, to bluff enemies.
- The triad developed during the Eisenhower administration as a result of competition—both between the Cold War combatants and the U.S. military services. Eisenhower’s “New Look” strategy, which threatened massive retaliation against Soviet adventurism, privileged the Air Force because Air Force bombers were the nation’s primary means for delivering strategic nuclear weapons, and the Air Force also had the lead in developing missile technology.
- Eisenhower’s policies, by producing interservice rivalries, encouraged innovative military doctrine to address the main U.S. military mission of the day: defending Europe from the Soviet Union, what defense intellectuals call extended deterrence. To regain budget share and relevance, the Army and Navy needed a bigger role. They argued that massive U.S. retaliation in response to a Soviet invasion of an ally was suicidal and thus unbelievable. The Army and Navy’s alternative deterrence strategies helped institutionalize the triad.
- The structure of the nuclear force that the Kennedy and Johnson administrations established, and the arguments they constructed to justify it, largely lasted through the Cold War. The interservice debate on how to defend Europe might have produced a choice in the early 1960s among doctrines and nuclear delivery systems that allowed a smaller arsenal. Instead, those administrations embraced all three, at least rhetorically.
- The triad survived after the Cold War because each leg had support from a powerful military constituency and congressmen whose districts benefitted from the associated spending. All had cheerleaders among defense intellectuals who received or sought service grants and political appointments. No similarly powerful interests pushed back. Fights over nuclear weapons policy in the late Cold War covered limited ground. Limited debate obscured the flaws in the triad’s rationales.
- The declining military usefulness of nuclear weapons increases their delivery systems’ vulnerability to budget cuts. Though the arsenal retains powerful backers, their budgetary utility for the Air Force and Navy has declined. Service leaders may see nuclear weapons as a drain on funding for personnel and platforms better linked to the service’s preferred organizational purpose and doctrine.
- Policymakers should exploit that circumstance to improve strategic debate. Unity is necessary in war, but dissent is a reliable source of insight in preparing for war. A nuclear weapons policy that better serves the national interest may require the competition of parochial interests.
I believe that all who have an interest in U.S. national security policy will find value in the paper. I especially hope that it helps to dispel some of the most enduring myths surrounding nuclear weapons, and the role that they play in keeping the nation safe and secure. As the military is being asked to accomplish more with less, it is essential that it invest taxpayer resources wisely. The nation’s nuclear weapons arsenal is particularly ripe for additional scrutiny.
Washington, D.C. has served as the backdrop to some of the most important speeches in American history—from Martin Luther King’s “I Have a Dream,” to Franklin Roosevelt’s stirring call for a declaration of war after Pearl Harbor, to almost every president’s inaugural address (some less memorable than others). The city is also home to monuments and statutes celebrating the memory of men and women who spent their lives fighting for freedom, especially the freedom of speech.
But if you want to show this history off to tourists, you’d better have a license. District law requires tour guides to pass a history test on 14 subjects, covering material from no less than eight different publications, before they can go into business—all for the purpose of “protecting” tourists from misinformation.
In other words, you have to get a “speaking license” from the city.
Tonia Edwards and Bill Main operate “Segs in the City,” a company that gives Segway tours of the city’s historical landmarks, and they are unlicensed. Consistent with the history and values of free speech represented by D.C.’s monuments, the Institute for Justice is helping these entrepreneurs challenge the licensing law as an unconstitutional abridgment of First Amendment rights. After losing in district court, the plaintiffs appealed to the U.S. Court of Appeals for the D.C. Circuit.
Joined by First Amendment expert Eugene Volokh, Cato has filed an amicus brief supporting the lawsuit. We argue that the licensing regime is a content-based restraint on speech and therefore must pass the strictest judicial scrutiny (so the government needs a compelling reason for it and has no other way of accomplishing the same goal). The law is a content-based speech regulation in that it is (a) triggered by the content of speech, and (b) justified on the basis of the content that it regulates.
The Supreme Court has repeatedly held that a law regulating the content of speech – as opposed to its location, timing, or manner – is subject to strict scrutiny. The justifications offered for the licensing law explicitly refer to the content of guides’ speech (“misinformation”). That is as much a content-based justification as saying that people need to be protected from hearing “erroneous” political opinions or “controversial” historical theories.
Finally, we argue that tour guides are not members of a “profession,” such as lawyers, doctors, and accountants, which could merit less First Amendment protection in order to protect the public from harm. Unlike those professions, tour guides don’t have intimate relations with clients. Instead, like most businesses, they simply have customers. The government cannot possibly require authors, public lecturers, or documentary filmmakers to get licensed in order to protect the public from “misinformation,” and it has no more basis for licensing tour guides.
Commenting on the federal budget the other day, House Minority Leader Nancy Pelosi said “the cupboard is bare. There’s no more cuts to make.”
That view might be reasonable if the federal government was supposed to be the current octopus it is, with tentacles reaching into every aspect of society, micromanaging local affairs, and simultaneously trying to be policeman around the globe.
But most Americans don’t want that. They are tired of costly foreign wars, growing federal intrusions on their privacy, and federal meddling in their schools and other local activities.
So Rep. Pelosi should put aside her stubborn and uninformed view, and instead “go through our federal budget — page by page, line by line — eliminating those programs we don’t need,” as President-elect Obama promised he would do in 2008.
That’s what we’re doing at Cato. The other day, for example, my assistant Nick Zaiac noticed that a program called “Partnership for Sustainable Communities” handed out nearly 200 new grants, and few if any of the items funded are properly federal responsibilities.
The program’s website includes lots of warm and fuzzy phrases like “walkable, livable communities” and “environmentally sustainable regions.” I’m all for walking, living, and sustaining, but the program’s activities are properly local stuff, not federal. Here are some of the new grants, with my editorial comments:
- Concord, New Hampshire: $4.7 million to “reconstruct a 12-block section of Main Street in downtown.” It’s the town’s main street for goodness sakes, so shouldn’t the people who live there prioritize it in their own budget?
- Lewes, Delaware: Federal help is going toward “walking audit technical assistance,” which means “an assessment of how safe and pleasant its streets are for pedestrians.” Geez, just pay my hotel over a sunny weekend, and I’ll do that assessment for free.
- Boston, Massachusetts: $300,000 for a Choice Neighborhoods Planning Grant for the Whittier Street Apartments. The grant is “to provide a plan that will transform the neighborhood and address longstanding issues of poverty and lack of opportunity.” But will a government central plan work to change the lives of all the different individuals who live there?
- Bayonne, New Jersey: $11 million to expand the capacity of the seaport. Seaports are a vital piece of infrastructure, but surely they would be better off privatized, unsubsidized, and untethered from Washington. Many British ports were privatized in the 1980s, and appear to be doing very well in today’s competitive environment.
- Fort Lauderdale, Florida: $18 million to “build a new streetcar line in downtown.” Streetcars are a dubious investment, and generally less efficient than buses. If Fort Lauderdale wants to blow its own money, it can do so, but why should the rest of us have to pay?
We need a sustainable federal budget, so we should terminate “Sustainable Communities.” Indeed, all of the $560 billion a year in federal grants for such state/local projects is unsustainable. It should all be terminated. Here are eight reasons why.
With today’s ruling by the ‘Cairo Court for Urgent Matters’, banning the activities of the Muslim Brotherhood and ordering a confiscation of its assets by the government, the Egyptian regime is taking the crackdown against its political opponents to the next level. While it is unclear what the decision means for the future of the Brotherhood’s political arm, the Freedom and Justice Party, the government has committed itself to disbanding an organization which counts between 300,000 and 1 million members and which has been in existence since 1928.
That is unlikely to work. The Brotherhood was banned during Nasser’s presidency. In Syria, Brotherhood membership was a capital offence between 1980 and 2011. If anything, these and similar bans strengthened the organization’s narrative of victimhood and enabled it to reemerge strengthened and relying on broader popular support. In a recent paper, I show that the electoral success of the Muslim Brotherhood in the aftermath of Arab Spring was foreseeable and resulted from the fact that the group had been actively involved in the provision of social services, particularly to poorer segments of the Egyptian population, and possessed a well-recognized brand name. Over time, this electoral advantage would have dissipated, particularly as the Brethren proved to be rather inept policymakers.
Alas, with the crackdown on the organization, the current leadership of the country seems to be determined to drive the organization underground and to radicalize it. At this moment, Alan Krueger’s characterization of terrorism sounds as an ominous warning of what is to come unless the Egyptian military relinquishes its grip to power:
[t]errorists and their organizations seek to make a political statement; terrorists arise when there are severe political grievances with no alternatives for pursing those grievances.
The Sunday Washington Post has a lengthy story on Terry McAuliffe’s highly successful “business” career. McAuliffe, of course, is the longtime Democratic fundraiser and “first friend” of Bill Clinton who is now the Democratic nominee for governor of Virginia.
How did a lifelong political operative make many millions for himself? The Post reviews:
The pitches to potential investors in a new electric-car company have been unabashed about its promise: It will enjoy “billions” in government subsidies and tax credits, will rise to a dominant position in the U.S. electric-car industry and, perhaps most critically, has a politically connected founder with the savvy to make it all happen….
The prospectus, along with other documents reviewed by The Post, shows how GreenTech fits into a pattern of investments in which McAuliffe has used government programs, political connections and access to wealthy investors of both parties in pursuit of big profits for himself.
That formula has made McAuliffe a millionaire many times over, paving the way for a long list of business ventures, including his law firm, from which he resigned in the 1990s after profiting — along with his partners — from fees paid by domestic and foreign clients seeking results from the federal government.
A review of McAuliffe’s business history shows him often coming out ahead personally, even if some investments fail or become embroiled in controversy.
Or as McAuliffe told the New York Times:
”I’ve met all of my business contacts through politics. It’s all interrelated,” he said. When he meets a new business contact, he went on, ”then I raise money from them.”
And how did Bill Clinton meet his very good friend? Was it in high school? College? At Oxford? The local Kiwanis Club? No, President Clinton was down in the dumps after his electoral thumping in 1994 and needed to get in gear for his reelection campaign. Harold Ickes, “his politically astute deputy chief of staff,” urged him to meet McAuliffe, who had been a fundraiser for President Carter, when he was 23 years old, and Dick Gephardt. McAuliffe quickly recommended renting out the Lincoln Bedroom, and that worked so well that they became fast friends, maybe even “best friends.”
For more on how to make big money by being a friend of Bill Clinton, see the current cover story in the New Republic.
Meanwhile, McAuliffe is seeking the job currently held by Gov. Robert McDonnell, who is currently under fire for accepting many expensive gifts from a businessman seeking to do business with the state. The gifts were lavish – $15,000 to pay for catering for the governor’s daughter’s wedding, $15,000 to take the first lady shopping at Bergdorf Goodman in New York, use of a vacation cabin, use of a Ferrari, a Rolex watch for the first lady to give the governor, and some $120,000 in loans to a business McDonnell ran – but perhaps the sort of thing old friends do for one another. How old was the friendship? The high school soccer team, maybe? Church? No, McDonnell met his “family friend” as he was gearing up to run for governor in 2009. And as Jonnie Williams contributed more than $100,000 to his campaign, McDonnell quickly came to consider him a “personal friend.” No more, though, after the details of their friendship hit the newspapers.
Ah, friendship, it’s a beautiful thing. As Yeats wrote, “say my glory was I had such friends.”
And then consider the case of General Joseph F. Fil Jr., the former commander of the U.S. Eighth Army in South Korea, who was found by the Pentagon’s inspector general to have improperly accepted gold-plated Montblanc pens, a $2,000 leather briefcase and other gifts from a South Korean citizen while commanding U.S. troops in that country. His explanation? You guessed it:
Fil told investigators that he accepted the gifts in “good conscience,” believing that they were legal because the giver was a longtime personal friend.
Investigators cast doubt on that explanation, however, noting that the South Korean did not speak English and that Fil had to communicate with him by “using hand and arm signals.”
Of course, as the Dominican brother Innocent Smith has written, “One of the signs of a true friendship is that friends can be silent together without awkwardness.”
Seriously, though, we could consider all these politicians and generals hypocrites: They call people “friends” who are useful to their pursuit of power and money. But we might also feel sad for them. The people they call friends, “personal friend,” “family friend,” even “best friend,” are trading money for access, and access for money. Some might view it as more of a symbiotic relationship than actual friendship.
Perhaps the term they should use is “crony,” which interestingly enough is defined by Merriam-Webster as
a close friend of someone; especially : a friend of someone powerful (such as a politician) who is unfairly given special treatment or favors
So there you have it: a crony actually is a close friend. Who seeks and receives favors.
And all of this is a far cry from actual businesspeople, who create wealth by discovering and serving the needs of other people. Sam Walton, Bill Gates, Fred Smith, and your corner deli owner are businesspeople. Terry McAuliffe and other political operatives who trade on their political connections to get cut in on sweetheart deals and government subsidies are something else again.
Andrew J. Coulson
House majority leader Eric Cantor is in Philadelphia today to pick up Attorney General Eric Holder’s gauntlet. Holder’s DOJ has filed suit to shut down a Louisiana school voucher program that serves an overwhelmingly African American population, on the grounds that… it’s bad for African Americans. Cantor vows to fight the DOJ if Holder doesn’t drop the suit, and he’s delivering his message at a Philly charter school serving mostly African American kids—one that has about six times as many applicants as it has places.
Apart from its proximity to DC, Philly might seem an odd location for Cantor’s presser, but the city of brotherly love is going through an educational drama of its own. The Philadelphia School District has had budget problems for years. It’s seen horrendous violence, plummeting enrollment, and commensurate staff layoffs and school closures. Most media accounts bewail lack of funding as the key problem. Salon.com recently ran a story with the subhead: “Pennsylvania’s right-wing governor drains public schools of basic funds.” CBSNews laments “the same old problem: not enough money.”
What those and all other Philly school district stories I’ve seen have in common is that they fail to say how much the district actually spends per pupil. Not having attended journalism school, I missed whatever class teaches education reporters to omit the single most important fact in their stories, so allow me try to fill in the blank.
A quick Google search reveals that Philly’s 2013-14 budget is $3.03 billion (p. 50), of which $862 million is for charter schools. The district serves 136,000 students in its regular public schools and another 63,000 in charter schools. So the regular public schools, the ones that are being “systematically murdered” by budget cuts, spend $15,941 per pupil. That’s about $3,000 more than the national average. It’s also $1,600 more than the day tuition at Temple University. The city’s charter schools receive about $2,300 less than the regular public schools.
That’s not to say that the district’s classrooms are fully stocked with supplies or that the city’s best teachers are paid what they’re worth. What it does suggest is that the cause of those problems may have less to do with the amount of funding available than with the way it is allocated. After all, Washington, DC spends around $29,000 per pupil—double what Philly does—and it performs worse in both reading and math by the 8th grade.
During the 2010 federal election, the Susan B. Anthony List (SBAL), an advocacy organization “dedicated to electing candidates and pursuing policies that will reduce and ultimately end abortion” published ads in the district of former Rep. Steven Driehaus which read: “Shame on Steve Driehaus! Driehaus voted FOR taxpayer-funded abortion.” The ad reflected SBAL’s interpretation of the impact that the Affordable Care Act would have on the funding of abortion procedures.
Driehaus filed a complaint with the Ohio Elections Commission, claiming a violation of a state law that makes it illegal to knowingly and intentionally make false or misleading statements about a candidate for elected office. While the case was dropped, the Commission did find that there was probably cause to believe that SBAL violated the law.
SBAL then sued in federal court, claiming that the Ohio law was an unconstitutional restriction of its First Amendment rights. Both the district court and U.S. Court of Appeals for the Sixth Circuit dismissed the lawsuit. The courts’ reasoning was that SBAL hadn’t suffered any harm that would give it standing to challenge the law because the Commission hadn’t actually found that SBAL violated it or levied a fine. In order to challenge a law preemptively, the courts held, a litigant has to show that he intends not to comply with the law and thus face an “imminent” prosecution—which SBAL had not shown to the courts’ satisfaction.
SBAL has asked the Supreme Court to decide the following question: “To challenge a speech-suppressive law, must a party whose speech is arguably proscribed prove that authorities would certainly and successfully prosecute him?”
Joining the Institute for Justice, Cato has filed an amicus brief urging the Court to take the case because the Sixth Circuit’s holding “slammed shut the courthouse door on plaintiffs looking to challenge a criminal law that is specifically intended to suppress certain types of speech.” The brief makes three key points: (1) the standard set by the Sixth Circuit is much more restrictive than that used by the majority of circuit and state courts, and is inconsistent with the Supreme Court’s First Amendment jurisprudence; (2) requiring SBAL to say that it wishes to violate the law in future would require it to destroy its credibility by saying (correctly or incorrectly) that its statements about Driehaus or other candidates were false; and (3) the Sixth Circuit erred by taking an overly formalistic and idealized view of the law, and shouldn’t have ignored evidence about the way that the law is actually implemented.
Because anyone, whatever his status, can initiate an Ohio Elections Commission investigation, there is a very real risk that SBAL’s enemies will file complaints in an attempt to stifle the organization’s free expression. Indeed, the record shows that statutes of this kind “are frequently used as weapons in campaign arsenals to silence or distract political opponents in the midst of heated elections.”
The Court will decide whether to take Susan B. Anthony List v. Driehaus later this year.
This blogpost was co-authored by Cato legal associate Gabriel Latner.
The Census Bureau reports, says a Wall Street Journal article, that between 2000 and 2012 “median household incomes for the nation as a whole dropped 6.6% — from $55,030 to $51,371.” There’s reason to doubt that real incomes are actually down over such a long period. But growth is certainly slow.
Except in Washington. The Journal notes:
The income of the typical D.C. household rose 23.3% between 2000 and 2012 to an inflation-adjusted $66,583, according to the Census Bureau’s American Community Survey, its most comprehensive snapshot of America’s demographic, social and economic trends. …
The Washington, D.C. metro area — which includes the surrounding suburbs in Maryland, Virginia and West Virginia — has it even better, with a median household income of $88,233 that ranks highest among the U.S.’s 25 most populous metro areas. Tampa, Florida’s median income, by contrast, is under $45,000….
[Washington’s] local economy is expanding faster than the broader nation, and its property market is soaring, thanks in part to increased federal-government spending and an influx of federal contractors, lawyers and consultants.
Washington is wealthy and getting wealthier, despite history’s slowest recovery in most of the country. As we’ve said here before, this of course reflects partly the high level of federal pay, as Chris Edwards and Tad DeHaven have been detailing. And it also reflects the boom in lobbying as government comes to claim and redistribute more of the wealth produced in all those other metropolitan areas.
Money spent in Washington is taken from the people who produced it all over America. Washington produces little real value on its own. National defense and courts are essential to our freedom and prosperity, but that’s a small part of what the federal government does these days. Most federal activity involves taking money from some people, giving it to others and keeping a big chunk as a transaction fee.
Every business and interest group in society has an office in Washington devoted to getting some of the $3.6 trillion federal budget for itself: senior citizens, farmers, veterans, teachers, social workers, oil companies, labor unions - you name it. The massive spending increases of the Bush-Obama years have created a lot of well-off people in Washington. New regulatory burdens, notably from Obamacare, are also generating jobs in the lobbying and regulatory compliance business.
Walk down K Street, the heart of Washington’s lobbying industry, and look at the directory in any office building. They’re full of lobbyists and associations that are in Washington, for one reason: because, as Willie Sutton said about why he robbed banks, “That’s where the money is.”
As policymakers begin fighting over this year’s appropriations, the Congressional Budget Office has released a long-term projection that puts today’s budget battles in broader context. The federal government is in the most unique and dangerous fiscal situation that it has ever been in during peacetime.
Federal spending and debt as a share of GDP are being sustained at very high levels, and that is sapping the nation’s economic vitality. Spending and debt remove resources from the voluntary, productive, and innovative sector of the economy and put those resources in the hands of the coercive, mismanaged, and centrally planned sector. The more that spending and debt rise, the more of our freedom and prosperity are destroyed.
During brief periods to fight justified wars, it is reasonable to hand over more resources to the government. But the following two charts show that spending and debt are already at remarkably high levels for peacetime, and CBO projections to 2050 show the situation getting much worse.
Figure 1, below the jump, shows federal debt held by the public as a share of GDP from 1790 to 2050. The data for past years are from CBO analyses here and here. The projection is CBO’s new extended baseline.
Before the current spike, federal debt never rose above 48 percent of GDP during peacetime. Right now debt is 73 percent of GDP and CBO projects that it will rise to 129 percent by 2050 without reforms.
In the past, debt peaked during wars (the War of 1812, Civil War, WWI, and WWII), but afterwards there were always long periods of fiscal retrenchment. Indeed, for the nation’s first 140 years, the Jeffersonian dislike of government debt held sway among policymakers. The rise of Keynesianism in the 1930s started to soften views about debt, but the recent political acceptance of peacetime debt at near-WWII levels is very disturbing.
High debt is caused by high spending. Figure 2 shows total federal outlays over the same 260-year period. Spending data for the first 110 years are from the Census, while GDP data are from CBO. Data since 1900 are from OMB and CBO, and the projection to 2050 is CBO’s extended baseline.
The wartime spending spikes in Figure 2 match the debt spikes in Figure 1. But since the 1930s, the welfare state has grown dramatically, and federal spending has gobbled up an increasing share of the economy during both peacetime and wartime.
Wars tend to ratchet up spending even after the shooting stops, but before WWII this didn’t seem to be a severe problem. From 1790 to the War of 1812, federal spending averaged 1.5 percent of GDP. From after the War of 1812 to the Civil War, spending also averaged 1.5 percent. From the end of the Civil War to WWI, spending averaged 2.6 percent. During the 1920s, spending averaged 4.1 percent.
But after that point, Figure 2 shows a sharp upward trend from 1930 to about 1980. Spending rose from 4 percent to 21 percent of GDP—a quintupling of the federal government’s grab of the nation’s income. The federal share has gyrated around 20 percent since then, but CBO’s projection of spending to 2050 shows spending climbing to 29 percent. If we have more wars, there will be spikes in future spending and debt that make CBO’s scary projections even worse.
Regarding the current budget battle, the effort to remove Obamacare funding from this year’s appropriations is laudable. Not only will the health care law add distortions to our health care system, it will also spend a lot of money. Repealing the law would reduce federal spending by about half a percentage point of GDP annually within a decade.
However, much more needs to be done to ward off the tidal wave of spending and debt shown in the CBO projections. History shows that policymakers should be cutting spending and debt during periods when we are at peace and the economy is growing—like right now. Let’s hope that we don’t enter any more foreign wars, but we do need a domestic war on government spending and debt.
Immigration reform, once the top priority in Washington coming out of the 2012 presidential election, has stalled. This is unfortunate because the current system is a shambles. Some 11 million people live in the U.S. illegally. But attempting to fence off the country is no answer.
Immigration benefits the United States. Many immigrants are natural entrepreneurs. Well-educated foreign workers are inventive and productive. Expanded work forces increase economic specialization and business flexibility.
Immigration may depress some wages in the short-term; however, the work force is not fixed. Immigration makes a more innovative and productive economy, with new and better jobs.
Nevertheless, the public is skeptical of immigration. To move forward, Congress should separate employment from citizenship. Legislators should expand work visas for individuals. Immigration auctions or tariffs would be innovative alternatives. Congress also should regularize the status of those currently in America illegally by granting residence and employment permits. However, Congress should set aside debate over turning illegal aliens into citizens. In fact, Rep. Bob Goodlatte (R-Va.), chairman of the House Judiciary Committee, asked: “Are there options that we should consider between the extremes of mass deportation and a pathway to citizenship?”
Some immigration opponents complain that this approach would reward illegal behavior. However, the undocumented broke the law to improve their lives and the lives of their families, not to hurt others. Their presence also benefits the rest of us. Moreover, most Americans won’t support rounding up millions of people who have become part of U.S. society. Additional employment controls and sanctions would undermine domestic liberties.
Immigration supporters are also critical of this approach. A blogger harkened back to the slave era, writing that the immigrants’ “status would be akin to the freedmen who were denied citizenship under the notorious Supreme Court decision in Dred Scott.” Cristina Jimenez of the organization United We Dream called the idea “un-American.”
However, in Dred Scott the court ruled that people who had been kidnapped and brought to America were not citizens. In contrast, today’s undocumented came voluntarily without any expectation of becoming citizens. Moreover, there is nothing “un-American” about not allowing those who entered the country illegally to jump the citizenship queue.
[F]or immigrants seeking economic opportunity—which typifies the undocumented—legal residency and employment are more important than political participation. With the former two they would enjoy most of the benefits of American society. Naturalization would result in some additional “rights,” but regularization even without citizenship would dramatically improve the status of today’s illegal immigrants.
Indeed, when the 1986 Simpson-Mazzoli Act provided a path to citizenship for illegal immigrants who entered the country before 1982, only 40 percent of eligibles subsequently became naturalized. Two-thirds of the 5.4 million immigrants eligible for citizenship have still not done so.
Under this proposal, newly legalized residents who desire to become citizens could still apply for citizenship under existing rules. Yet critics of this idea worry about creating a permanent “underclass.” Actually, that’s the case today. Legalizing the undocumented and improving their economic opportunities would empower them. They would resemble expatriate workers around the world.
Congress also should address the issue of “birthright” citizenship. Today everyone born in America, even babies born to non-citizens who are merely visiting the United States, become citizens under a provision of the 14th Amendment. The amendment was drafted to constitutionalize the citizenship of the freedmen after the Civil War, not set immigration policy. There is no policy reason to automatically grant citizenship to the children of foreigners in America legally but with no significant connection to the country—or to the children of those here illegally.
A few years ago, when my former Cato colleague Will Wilkinson wrote of this idea (link here, though there seems to be a problem with the site), Mother Jones blogger Kevin Drum responded that changing citizenship rules would create “a large, permanent class of resentful noncitizens is something nobody should be pining for.” But kids would benefit along with their parents from legalizing their status. Resentment is far more likely in response to impaired educational opportunities, poor job prospects, and arbitrary threats of deportation than to an inability to vote and run for office.
Americans would greatly benefit from expanded immigration. To spur reform, Congress should allow more people to live and work legally in America. But legislators should reconsider who should be welcomed as fellow citizens.
Paul C. "Chip" Knappenberger
Falling back on tired scare tactics, U.S. Environmental Protection Agency administrator Gina McCarthy today announced carbon dioxide emissions limits for new power plants as part of the President Obama’s Climate Action Plan. From McCarthy:
The overwhelming judgment of science tells us that climate change is real, human activities are fueling that change, and we must take action to avoid the most devastating consequences. We know this is not just about melting glaciers. Climate change—caused by carbon pollution—is one of the most significant public health threats of our time. That’s why E.P.A. has been called to action. And that’s why today’s action is so important for us to talk about.
I humbly disagree both as to the “public health threat” of carbon dioxide emissions from human activities, as well as with the idea that the EPA can do anything to alleviate whatever climate change may result.
What the new emissions limits do is to basically force the administration’s preference for natural gas over coal as the fossil fuel source for our nation’s electricity production going forward, perpetuating the administration’s seeming “War on Coal.” It does this by setting the carbon dioxide emissions limits for new power plants such that they are impossible to meet by burning coal, but can be met readily by burning natural gas. The reason for this is simple chemistry: the act of burning coal releases nearly twice the amount of carbon dioxide as does burning natural gas per unit of energy released.
The funny thing is, the market was already moving in that direction. Cheap natural gas is displacing coal for generating electricity, which in turn is reducing our national carbon dioxide emissions.
So there was no need for the administration to get involved. Government intervention in the markets does not have a particularly positive track record, so there is no reason to have optimism that this government meddling in the energy market will have a positive outcome—especially when the science does not support the need for action in the first place. I have detailed all of this before.
Today’s announcement from the EPA is not a welcomed one for free markets, and undoubtedly it will be vigorously challenged.
What I wrote previously about this sort of action is worth repeating:
Taken together, declining U.S. greenhouse gas emissions and declining estimates of climate change should have been enough to convince the president that things were already on the proper track—no government intervention necessary.
But this administration is characterized by intervening where it is not necessary. The president’s Climate Action Plan is more of the same.
Paul C. "Chip" Knappenberger
It has now been five years since TransCanada made its first permit application to the U.S. State Department to build the Keystone XL. Under the permit, the firm would construct a cross-border pipeline to carry about 830,000 barrels of Canada-produced oil per day down to refineries along the U.S. Gulf Coast. Most of that oil would be mined from the tar sands of Alberta.
No decision has been reached on the current permit application—or rather, no decision has been announced. It’s fate is still guarded by the State Department and President Obama.
In 2009, the U.S. permit for a similar pipeline, Enbridge’s Alberta Clipper, was issued just over two years after the initial application. Then (just four years ago), the State Department spoke in glowing terms of the project, praising it for advancing “strategic interests” and being a “positive economic signal” and further adding that “reduction of greenhouse gas emissions are best addressed through each country’s robust domestic policies.” Here is a taste of the State Department’s press release announcing the pipeline’s approval:
The Department found that the addition of crude oil pipeline capacity between Canada and the United States will advance a number of strategic interests of the United States. These included increasing the diversity of available supplies among the United States’ worldwide crude oil sources in a time of considerable political tension in other major oil producing countries and regions; shortening the transportation pathway for crude oil supplies; and increasing crude oil supplies from a major non-Organization of Petroleum Exporting Countries producer. Canada is a stable and reliable ally and trading partner of the United States, with which we have free trade agreements which augment the security of this energy supply.
Approval of the permit sends a positive economic signal, in a difficult economic period, about the future reliability and availability of a portion of United States’ energy imports, and in the immediate term, this shovel-ready project will provide construction jobs for workers in the United States.
The National Interest Determination took many factors into account, including greenhouse gas emissions. The administration believes the reduction of greenhouse gas emissions are best addressed through each country’s robust domestic policies and a strong international agreement.
Oh how times have changed.
Well, actually, no.
Today, the Keystone XL pipeline will affect the U.S. “strategic interests” in the same manner as the Alberta Clipper pipeline. The Keystone XL pipeline will “send a positive economic signal in a difficult economic period” just as the Alberta pipeline. And the State Department took into account “greenhouse gas emissions” of the Keystone XL pipeline just as it did the Alberta Clipper pipeline, and found them to be minimal.
If the primary facts haven’t changed in the four years since Alberta Clipper’s approval, then what has?
Apparently how some people “feel” about Canadian tar oil, greenhouse gases, and their role in climate change.
Now, all manner of protests over the “dirty oil” coming from the Canadian tar sands are being held, with protesters supergluing their hands together in a human chain in TransCanada’s corporate offices, getting arrested in front of the White House, marching on Washington, and all number of other attention-grabbing stunts. A prominent slogan is that the Keystone XL’s approval would mean “game over for climate change.”
This is overblown hype.
But apparently it has President Obama’s attention. He even went out of his way to mention the Keystone XL pipeline in his speech this summer laying out his Climate Action Plan.
Judging from this week’s 5th anniversary, inaction on the Keystone XL pipeline is part of that Action Plan.
And why not? While the decision is delayed, the protests over the pipeline continue and serve to keep climate change in in the public’s eye—just what the president wants. The delay also buys time for economic recovery, lessening the relative impact of the pipeline. And it allows more time for the Canadian oil to find its way into the United States through other means, again lessening the impact of the pipeline.
All of that leads down the path of the president continuing to delay the decision as long as possible, and then ultimately denying the permit. It would be just one more thing for his critics to gripe about, but it would give a spiritual uplift to all those people who feel good just to be “doing something” about climate change.
That that “something” quite possibly has negative actual ramifications is beside the point.
Science and economics has already spoken on the issue; spirituality is all that is left.
And feeling good about ourselves is what matters most, right?
Daniel J. Mitchell
As we get closer to the debt limit, the big spenders in Washington are becoming increasingly hysterical about the supposed possibility of default if politicians lose the ability to borrow more money.
I testified yesterday to the Joint Economic Committee on “The Economic Costs of Debt-Ceiling Brinkmanship” and I explained (reiterating points I made back in 2011) that there is zero chance of default.
Why? Because, as I outline beginning about the 3:10 mark of the video, annual interest payments are about $230 billion and annual tax collections are approaching $3 trillion.Dan Mitchell Testifying to the Joint Economic Committee about the Debt Ceiling
I actually made five points in my testimony. The first three should be quite familiar to regular readers.
Second, you achieve good fiscal policy by following “Mitchell’s Golden Rule” so that government grows slower than private sector economic output.
Third, we’ve made some progress in the last two years thanks to genuine fiscal restraint, and we can balance the budget in a very short period of time if lawmakers impose a very modest bit of spending discipline in the future.
The fourth point, which I already discussed above, is that there’s no risk of default - unless the Obama Administration deliberately wants that to happen. But that’s simply not a realistic possibility.
My fifth and final point deserves a bit of extra discussion. I explained that Greece is now suffering through a very deep recession, with record unemployment and harsh economic conditions. I asked the Committee a rhetorical question: Wouldn’t it have been preferable if there was some sort of mechanism, say, 15 years ago that would have enabled some lawmakers to throw sand in the gears so that the government couldn’t issue any more debt?
I closed by drawing an analogy to the situation in Washington. We know we’re on an unsustainable path. Do we want to wait until we hit a crisis before we address the over-spending crisis? Or do we want to take prudent and modest steps today - such as genuine entitlement reform and spending caps - to ensure prosperity and long-run growth.
Seems like the answer should be simple…at least if you’re not trying to get reelected by bribing voters with their own money.
P.S. My argument for short-term fighting today to avoid fiscal crisis in the future was advanced in greater detail by a Wall Street expert back in 2011.
In a long dreaded move, the U.S. Department of Labor has issued a final rule requiring that time-and-a-half overtime be paid to at-home attendants who put in more than 40 hours a week caring for a disabled or elderly person. “Many home health aides provide live-in services, and overnight and weekend hours could result in their receiving substantial amounts of overtime pay,” notes Steve Miller at the Society for Human Resource Management. Families employing such attendants will also be required to keep records of time worked. There are a few narrow, hard-to-use exceptions. The rule also brings attendants under minimum wage laws, but it’s the overtime provision that has raised the most fear.
This is a terrible rule. The fear and anger it has stirred is coming not just from commercial employment agencies, as some careless media accounts might leave you to think, but above all from elderly and disabled persons and their families and loved ones, who know that home attendant services are often the only alternative to institutional or nursing home care.
Even if you’ve followed this issue you probably had no idea that in April, ADAPT, a well-known disability-rights group, staged a demonstration in Washington, D.C. to protest the proposed overtime rule and even blocked all the entrances to the Department of Labor to make its point. That was hardly reported at all in the media; I learned about it through Prof. Samuel Bagenstos’s blog on disability rights law.
The rules are likely to bite especially in California, which has a distinctively generous statewide arrangement (IHSS, or In-Home Supportive Services) favorable to home-based care. According to comments filed in March by DREDF (Disability Rights Education & Defense Fund), another leading disabled-rights group, it’s “highly unrealistic to assume that the state and local governments would be willing to pay [overtime]. It is far more likely that IHSS would simply cap individual workers’ hours at 40 hours/week.”
At present, for more than 28,000 mostly low-income Californians, the liberal state program is willing to pay for up to 65 hours a week of companion care carried out by family members themselves. Whatever the pluses and minuses of paying people to care for their own loved ones, the program is unlikely to survive in its current form if an overtime entitlement that cannot be waived by mutual consent is overlaid onto it. Pointing out that 40 years ago “the vast majority of PWD [persons with disabilities] with high PA [personal attendance] needs were institutionalized,” DREDF wrote that “we cannot support the proposed rule change because of the possible unintended consequences to PWD and their families” both publicly or privately paid.
Don’t assume that companions themselves will benefit, even assuming they manage to stay employed. Many will simply see their hours cut back. (Cutting employees’ hours as an adaptation to new law? Who could have seen that coming in the era of ObamaCare?) So instead of 12 hours x 6 days at one home spent playing gin rummy between client naps and making sure no health emergency is gathering, the work week will be reshuffled to constitute, say, 36-hour weeks for two different clients, resulting in twice the commuting and job search hassle, twice the handoffs to other attendants (always a time of elevated safety risk, as the medical world has learned to its regret before) and, for the disabled person, twice the number of unfamiliar faces cycling through the house.
If Congress can muster the will to stand up to the backers of the plan – notably unions, organized employment lawyers, and cause groups in the liberal foundation orbit – it could still move to block the rules before the effective date of January 2015.
Reforming low-skilled guest worker visas is a vitally important part of immigration reform. It will substantially reduce unauthorized immigration by providing a lawful pathway to enter and reenter the U.S. To that specific end, an effective guest worker visa has to be designed to address how migrant and guest workers actually behave. Allowing a guest worker visa to be renewed multiple times for each worker, assuming the worker follows the law when in the U.S., will decrease the incentives to migrate unlawfully. For each theory of migrant movement, allowing a guest worker visa to be renewed multiple times is compatible with migrant actions and will decrease unauthorized immigration. Here are the theories:
Target Income Theory
Under the target income theory, migrants come to the U.S. to meet a specific monetary or life goal, like starting a business or buying a house back home, that they would be unable to meet in their home country. Upon reaching the monetary threshold for that goal, they return home. According to this theory, a recession in the U.S. would cause migrants to stay longer until they meet their targeted goal, while higher migrant wages or an economic boom would make them return sooner.
If a migrant behaves according to this theory, he will work until the goal is met. Let’s say a guest worker visa allows a migrant to work in the U.S. for 10 years but no longer. If, at the end of that period, the migrant requires 2 more years of work to reach his income goal, the migrant will be tempted to overstay and work illegally until the goal is met. In this case, allowing the guest worker to legally stay longer and meet his goal will decrease the incentive to overstay on the visa. If the target income theory explains migrant behavior, allowing many visa renewals will help decrease unauthorized immigration. Renewable visas will allow immigrants to satisfy their income goal and return home.
According to this theory, migrants return home if the economic conditions in the U.S. are less favorable than they imagined, or if the economic conditions in their home country improve. Migrants would prefer to return when conditions improve, at least temporarily, but many stay in the U.S. longer because it is difficult for them to reenter should they ever want to. The depth of migrant social networks in their home and destination countries greatly influence this effect.
Guest worker visas that could be renewed multiple times will incentivize migrants to return home when conditions there improve because they will not fear being stuck there if they deteriorate.
Circular Migration Theory
To distinguish circular migration from the disappointment theory above, migrants come to the U.S. for seasonal or yearly work but move back and forth as labor demand for their occupations changes. Beginning in 1986, this circular movement between Mexico and the U.S. was interrupted with expanded border security that increased the length of time that unauthorized migrants stayed here, which in turn increased the likelihood that they would settle permanently. Because migrants suddenly faced the possibility of being stuck in Mexico if they ever left, they decided to stay and work.
If those migrants had a lawful way to cross the border, many would have returned to Mexico just as they did when the Bracero Program offered a visa to do just that. Renewable guest worker visas will allow some legal migrants to move back and forth for seasonal labor, lessening the incentive to illegally stay once here.
Migrants come for different reasons. Migrant actions might exhibit some or all of these theories, or enter the U.S. with one in mind and then switch to another during their stay. No matter which theory provides a better explanation of why migrants come, making the visa renewable as many times as possible will substantially decrease the incentive to migrate illegally or overstay a visa.
Creating a guest worker visa that can be renewed multiple times will allow migrants to legally work in the U.S., leave while preserving the possibility of legal return, and thus reduce unlawful entry and visa overstays. A flexible and numerically large guest worker visa program will substantially reduce the supply of unauthorized immigrants by channeling them into the legal market. The more times that such a visa can be removed, the more effective it will be at decreasing unauthorized immigration.
Since the election of relative moderate Hassan Rouhani to Iran’s presidency, there’s been a wave of events producing a newfound optimism about the prospects for a peaceful resolution of the dispute over Iran’s nuclear program. President Obama sent a letter congratulating Rouhani on his victory and mentioning other, unspecified issues, and Rouhani reciprocated. Obama told Telemundo he saw Rouhani as “somebody who is looking to open a dialogue with the West, and with the United States, in a way we haven’t seen in the past. And so we should test it.”
Iran’s Supreme Leader, Ali Khamenei, got into the act, reiterating an earlier call for “heroic leniency” in diplomacy over the nuclear program. Khamenei also told the radical and anti-American Islamic Revolutionary Guards Corps to butt out of Iran’s politics. At this time of writing, there are reports Tehran has released a number of political prisoners in Iran.
It all adds up to a period of positive trends in relations between the two countries. But it’s important not to overlook the fact that while atmospherics may help bring about talks, the countries are miles apart on the substantive issues surrounding Iran’s nuclear program. Too much attention has been spent on getting to talks, and too little on bridging the chasm dividing the parties.
A central, if not the central, problem is that the American foreign policy community has failed to lay out any conceivable way Iran could satisfy Washington other than immediate suspension of all uranium enrichment with no serious sanctions relief in return, which nearly everyone agrees isn’t going to happen. Congress seems to have two speeds on Iran policy these days: sanctions and asleep. Congress regularly piles on more sanctions to Iran, some painful, some symbolic, because it’s the easy thing to do politically, and no one seems willing to spend the political capital to provide Iran with a realistic offramp by which Tehran could lessen the pain and save face. Unfortunately, Congress’ actions and rhetoric have given the Iranians good reason to fear that our real policy in Iran is regime change, which can’t augur well for a deal.
Adding to the problems, Israeli Prime Minister Benjamin Netanyahu recently reiterated his own ultimatum to Iran, which is certain to fail. Netanyahu, whose hawkish id commands more influence in Washington than one might hope, demands zero enrichment in Iran—a formula no one believes is achievable. This formula puts Israel, and likely the United States, on a path to war with Iran.
So would Sen. Lindsey Graham, who last weekend reiterated his call for Congress to pass a war resolution allowing the Obama administration to bomb Iran when it determines bombing would be appropriate.
To be fair, however, the Washington debate has moved decidedly in the direction of common sense since the Iran nuclear issue first heated up in 2006. The intelligence community, in 2007 and 2011, concluded that Iran has not yet taken the decision to push for a nuclear weapon, and that Iran’s calculus on this matter was responsive to external events, including U.S. policy.
And mainstream commentary has inched away from assertions that suicidal mullahs would launch unprovoked nuclear strikes at Israel. Claims that Iran would give nuclear weapons to terrorists have faded. And the argument that a nuclear Iran would precipitate a cascade of nuclear proliferation has faced steady opposition from academic researchers and now a sharp blow from the Center for a New American Security, an establishment think tank.
Iran might be lying, but it looks more inclined to say yes to a reasonable nuclear deal than it has in the past 10 years. If U.S. political leaders care as much about the Iran problem as they say they do, and if they’re really looking to avoid another counterproliferation war, that fact should push Washington to swallow its pride and offer a more realistic deal than it has been inclined to do until now.