America’s Liberal Persian Gulf Friend: An Uneasy Kuwait Confronts Domestic Critics and Regional Threats
Kuwait City, Kuwait—Kuwait is a shrimp among whales in the Middle East. It lies among three much larger states, Iran, Iraq, and Saudi Arabia, all of which have the potential, noted one American diplomat, of swallowing the small Gulf kingdom. Indeed, Baghdad attempted to do precisely that in 1990.
Although more than two decades have passed, Kuwaitis remain grateful to the U.S. They know they would be the 19th province of Iraq absent American military support. The Sheraton, where I typically stay, includes photos of the damage wreaked by Iraqi invaders.
Today Iran looms as the larger threat, though Kuwaitis actually are less concerned about nuclear issues. When your neighbor holds a gun to your head, who cares how big it is, quipped one. With a heretofore well-integrated minority Shia population, most Kuwaitis actually worry more about the Shia-Sunni battle being fought especially vigorously by Iran and Saudi Arabia.
However, most Kuwaitis appear to back the Obama administration’s diplomatic approach. They know that military strikes are an alternative to negotiations, and war would be disastrous. Moreover, Kuwaitis hope future talks ultimately could ease tensions in other areas. Kuwait’s assent offers an important affirmation of Washington’s strategy.
Regional events, not just Iranian threats but the Arab Spring bust, have helped reduce domestic political tensions. Kuwait is among the Gulf’s most liberal societies, enjoying a powerful parliament, vigorous media, and independent population. However, in recent years the political process ran aground, putting both openness and stability at some risk.
In July, Kuwait held the third National Assembly poll in 17 months. Last year the opposition boycotted the election in protest over changed election rules. Demonstrations erupted, sparking a sharp government crackdown. Fractures in what remains a small political community seemed to widen dangerously.
However, the protests have stopped. Enthusiasm is difficult to sustain, while small political communities possess powerful tools to discourage active opposition. Moreover, noted one American observer, there appears to be increased fear of jeopardizing “this island of stability.” There’s a lot to complain about in the current system, but far more could be lost. Indeed, after Islamists won control of the National Assembly in February 2012, it was the hereditary monarch who blocked proposed legislation to base law on Sharia, bar construction of any new churches, and execute blasphemers.
Dr. Sami al-Faraj, a well-connected consultant who advises the royal family, among others, believes that creating a vibrant, opportunity-oriented private sector is the key to permanently easing political tensions. Abundant oil wealth has created a welfare society in which most everyone is dependent on the state, creating what one analyst calls “a transactional state.” The royal family’s control of so much wealth discourages measures to promote private entrepreneurship and democratic governance. As a result, al-Faraj says his country is “continually in a crisis management mode.”
The Middle East has dramatically demonstrated how democracy can become a minefield for liberal, tolerant societies. While Kuwait is not Washington’s most important ally in the region, it is America’s strongest Arab friend. And probably the Gulf’s most free society. Kuwaiti success in moving in a direction that is both liberal and democratic would offer an important model for its neighbors. We should wish the Kuwaitis well.
Christopher A. Preble
Rumors abound that budget negotiators are nearing a possible deal to reverse spending cuts required under the 2011 Budget Control Act (BCA).
Senate Republican Leader Mitch McConnell is hoping his colleagues will stand firm and reject any deal. He told reporters last week that it would be “a bad idea to revisit a law that’s actually working and reducing spending.” But he is competing with military spending advocates such as Reps. Buck McKeon and Mac Thornberry. They claim that the dangers confronting the United States today are graver than ever, that the costs to address these threats are rising and cannot be contained, and removing the defense spending caps is necessary to ensure the United States remains safe and secure.
They are wrong on all counts.
First, some context on spending: The Pentagon’s base budget, excluding the costs of the ongoing war in Afghanistan, remains 26 percent higher than in 2000, in inflation-adjusted dollars. Under the spending caps established by BCA, Pentagon spending would average around $528 billion per year from 2013 to 2021, over 18 percent higher than during a typical year in the Cold War.
This is curious considering the threats facing the United States were far greater then. The threats today are declining, not rising. In fact, all forms of violence, from cataclysmic great power wars, to civil wars and ethnic conflicts, have declined to historic lows.
To be sure, some insurance against potential threats is wise, in the unlikely event that current favorable trends are reversed, but we can maintain our safety while spending less because technological advances allow today’s military to address possible threats with fewer people and fewer platforms. U.S. naval vessels have far more striking power than the early 20th century dreadnaughts, just as precision-guided munitions have rendered today’s aircraft at least 10 times more capable of striking targets as their dumb-bomb-dropping precursors. To be sure, these new platforms are much more expensive, but the military services and their suppliers are more cost-conscious today than a decade ago, as when the Air Force recently killed a plan to outfit the next-generation bomber with a $300,000 kitchenette. Such excesses might be resurrected if BCA opponents succeed in changing the law.
The reforms extend well beyond procurement. In 2011, then-Chairman of the Joint Chiefs of Staff Mike Mullen admitted that the military hadn’t been forced “to make the hard choices” because they had all the money they requested, plus a little more. Today, the spending caps are forcing the services to prioritize.
For example, austerity has focused attention on the military’s antiquated compensation system. Today’s soldiers, sailors, airmen and Marines are better compensated than those who served during World War II or the Cold War. And they should be. A modern military must compete to attract and retain the best and the brightest, and that costs money.
The current trajectory of personnel costs is unsustainable, however. Pay and benefits are already eating into other Pentagon spending accounts, including procurement, operations and maintenance, and training. The net effect may impair military readiness. Now, even outspoken military spending advocates, such as Reps. Duncan Hunter and Adam Kinzinger, both veterans of the post-9/11 military, have endorsed changes, including expecting working-age retirees to pick up more of their health care costs.
There is, in fact, broad, bipartisan support for proposals that touch what were once thought of as the third-rails of Pentagon politics. In addition to compensation reform for active-duty military personnel, a letter signed by scholars from the American Enterprise Institute, the Center for American Progress, and the Brookings Institution, among others, also calls for shrinking the Pentagon’s sprawling civilian workforce and reducing overhead, including eliminating excess base capacity.
The most important piece of the military spending puzzle remains the United States’ hyperactive foreign policy. Even if we were to implement the sensible reforms made politically realistic by spending caps, we would still spend more than we need to keep Americans safe. That is because today’s military is mainly geared toward defending others. By discouraging our allies from doing more to defend themselves and their interests, U.S. policymakers have ensured that U.S. troops bear disproportionate burdens, and U.S. taxpayers pay disproportionate costs. If we are going to spend less on the military in the next ten years than we have over the last ten, we must ask our smaller, cheaper military to do less. And we must expect others to do more.
The Budget Control Act, for all its flaws, has managed to deliver something once thought impossible: actual spending cuts. Our military remains second to none, despite those cuts, and might be stronger in the future because of them. A deal to cancel or reverse those cuts threatens to derail sensible reform proposals that could deliver far larger savings to taxpayers in the future.
Sen. McConnell is right: Congress should stand firm.
Steve H. Hanke
With the announcement on Saturday night that Iran and the P5+1 group reached a tentative deal over the Iranian nuclear program, the Iranian rial appreciated 3.45% against the dollar on the black market. The rial jumped from 30000 IRR/USD on Saturday November 23rd to 29000 IRR/USD on Sunday November 24th. A daily appreciation of this magnitude is rare. In fact, it has occurred fewer than ten times since the beginning of 2013. Indeed, this indicates that the diplomatic breakthrough is having a positive effect on Iranian expectations.
Over a year ago, I uncovered the fact that Iran experienced a period of hyperinflation (in early October 2012), when its monthly inflation rate peaked at 62%. Since then, I have been actively monitoring and reporting on the IRR/USD black market exchange rates and calculating implied inflation rates for the country.
Since Hassan Rouhani took office, on August 3rd, Iranian expectations about the economy have turned less negative. Thus far, it appears Rouhani has been successful in ending the long period of economic volatility that has plagued Iran, since the US imposed sanctions in 2010. This has been reflected in the black-market IRR/USD exchange rate, which has held steady around 30,000 in recent weeks (see the accompanying chart).
There are three main factors at work here. The first is a concerted effort by the Rouhani administration and the central bank to curb Iran’s inflation. This stands in stark contrast to the previous regime, whose strategy was to simply deny that inflation was a problem.
The second is that that Iran’s economy has proved remarkably “elastic” – meaning that the country has ultimately adapted to the sanctions regime and has found ways to keep its economy afloat in spite of them.
The third factor in the rial’s recent stability is an improvement in Iranian economic expectations. This is where the P5+1 talks come into play. Iranians recognized that easing of the sanctions regime would be a bargaining chip in any nuclear negotiations. In consequence, their economic expectations improved as the talks progressed. Indeed, Saturday’s announcement gave these expectations a shot in the arm.
In light of the rial’s recent stability, I have delisted the rial from my list of “Troubled Currencies,” as tracked by the Troubled Currencies Project. For starters, the rial no longer appears to be in trouble. And, on a technical note, implied inflation calculations are less reliable during sustained periods of exchange rate stability.
That said, we must continue to pay the most careful and anxious attention to the black-market IRR/USD exchange rate in the coming months. Like the P5+1 agreement, Rouhani’s economic progress in Iran is tentative and likely quite fragile. Since the black-market IRR/USD is one of the only objective prices in the Iranian economy – and perhaps the most important one of all – it will continue to serve as an important weather vane, as the diplomatic process continues, and as Iran’s economy gradually moves into a post-sanctions era.
In the 19th Century, when railroads were being built across the West, the federal government granted significant land and benefits to railroad companies. The Great Railroad Right-of-Way Act of 1875 empowered the government to grant railroad companies right-of-way easements to build tracks across others’ land to facilitate the expansion of the nation’s railways – that is, railroads were granted a right to use sections of another’s property for railroad purposes without owning title to the land underneath. In 1976, the government sold the Brandt family a parcel of land in Wyoming which was crossed by one of these railroad easements.
In 2001, the railroad that owned the easement formally abandoned all claims to it. Typically, when this happens, the easement is simply extinguished and the owner of the land may then use the former easement however he or she wishes. But the federal government had different plans for the thin strip running through the Brandts’ land. In 2006, the government sued for title to the land lying under the former easement on the theory that it had retained a “reversionary interest” in the land when granting the railroad the right of way easement, even though it never actually set aside any interests when granting the easement. The government thus claimed that after the railroad abandoned the easement (after only ever owning an easement and never full title to the land), full title to the land “reverted” back to the federal government. The Brandts argue that under the basic principles of the common law of property, the government had no such right, and that even if any legislative act allowed the government to somehow acquire their land, such an act would require payment of just compensation under the Fifth Amendment’s Takings Clause.
Although this may seem like a small, unique problem, the scope of the Old West’s railway system was huge and those old easements criss-cross the land of thousands of property owners. In 1983, Congress amended the National Trails System Act to allow the government to take abandoned railroad easements and turn them into land for public recreation and “railroad banking.” Landowners have been fighting the taking of their property under the Trails Act ever since, claiming, as here, that the government’s original grant to the railroads contained no residual right of possession for the government.
After the trial court rejected the government’s radical claims, the U.S. Court of Appeals for the Tenth Circuit split with the Seventh and Federal Circuit courts (and ignored some of its own precedent on the way) and held that the government did indeed have a reversionary interest in the land, even though it never actually carved itself an exception, as the law requires. The Brandts, faced with the uncompensated government confiscation of a strip of land cutting their property in two, have now brought their case to the Supreme Court in an attempt to keep the government’s hands off their land and off the land of thousands of other landowners in their same position.
After supporting the Brandts’ request for Supreme Court review, Cato, along with four other groups and several property law professors – including Richard Epstein – has now filed a brief supporting the Brandts’ fight against the government’s poorly justified land-grab. We argue that the Tenth Circuit’s decision threatens to unsettle longstanding presumptions of property law because it willfully ignores basic differences between easements and “fee estates” in land and other basic principles of property law like the “strip and gore” doctrine (which holds, for example, that land under a right-of-way is split down the center and owned by those who own the land on either side of the easement).
This case is important, because there are many thousands of miles of old railroad rights-of-way crossing the countryside that would be potentially subject to uncompensated government confiscation if the Court were to follow the Tenth Circuit’s approach. In addition, some 3,000 to 4,000 miles of old railroad easements are abandoned every year. It’s not entirely surprising that the government would go full throttle on such a shoddy legal argument for the chance to be able to snatch this land back without having to pay for it. The surprising thing is that the Tenth Circuit green-lighted it. We urge the Supreme Court to switch tracks.
The Court will hear argument in Brandt v. United States on January 14.
Cato legal associate Julio Colombo co-authored this blogpost.
Today (Nov. 23) is Repudiation Day, a special holiday recognized by law in Frederick County, Maryland, where I live. In 1765, judges here “became the first to repudiate the British Stamp Act designed to maintain the costs of keeping British troops in America. [They] decided they were not going to charge the tax and refused to stamp the documents … The late Judge Edward Delaplaine called [them] the ‘12 immortal judges.’” More at the Wikipedia entry and in this 2006 column by Joe Volz at the Frederick News-Post (via Brian Griffiths, Red Maryland/Baltimore Sun).
Can you think of any other holiday that celebrates judicial resistance to overweening government and onerous taxation? I can’t.
The post-mortems today, after Harry Reid yesterday dropped the “nuclear option” on the Senate floor, then headed out of town, contain few surprises. As expected, the editorialists at the New York Times, headlining their thoughts with “Democracy Returns to the Senate,” called the 52-48 vote to end filibusters for appellate court nominees “long overdue.” The Times’ history goes back all of five years, conveniently ignoring the origins of the practice in the 108th Congress, when Democrats were in the Senate minority, as I outlined here and here yesterday. (See here for a detailed discussion of the period before that.)
At the Washington Post, however, one might be surprised to find not only the editors but two reliably liberal columnists, Dana Milbank and Ruth Marcus, on the other side. But in an effort to be even-handed, the editors, among other things, call the Republican rationale for recently filibustering three Obama nominees to the DC Circuit Court of Appeals—that the court’s workload does not justify adding new judges—a “pretext.” Yet as I outlined yesterday, the facts say otherwise, clearly, and do so far more than when Democrats used that rationale, successfully, in 2006.
Which brings me to a couple of little noted points in the reportage that has followed yesterday’s bombshell. Not only have the facts been too often little aired in much of that, when not outright misreported, but the “both-sides-have-been-guilty” meme has been uncritically prominent. It’s true, of course, that Republicans too have filibustered some of Obama’s appellate court picks. But the sequence matters—or, as parents concerned not simply with peace but with justice often ask, “Who hit first?” Turn-around is fair play, as we say. And that’s what galls so many about the events of yesterday. As many have noted, even those who oppose judicial filibusters, Reid was fine with Democratic filibusters of George W. Bush’s appellate court nominees. He couldn’t endure the turn-around.
It was Mr. Dooley who first reminded us that “politics ain’t beanbag,” which old-line Democratic pols like Tip O’Neill took to heart and practiced like an art. That analogy with sports—let’s stipulate that beanbag is “sports” of a sort—is instructive. We don’t give a guy hitting only .200 four strikes, or require a clearly superior team to gain 15 yards for a first down. So too in politics: Whatever the rules may be, they have to be followed equally or one side is playing a suckers game. I raise this issue because we’re already hearing Republican stirrings that, given pressure from the base, they “will be unable to resist using the same power” Democrats have now used. Where is Mr. Dooley when he’s needed?
But a second point, too little noted, concerns the implications from there being numerous “judicial emergencies” in the other circuits—vacancies in seriously overworked circuits for which the president hasn’t even named anyone. Judicial emergencies have increased 90 percent since 2006, and the vacancies with nominees have declined from 60 percent to 47 percent. Yet rather than attend to filling those vacancies, Obama and Reid are focused on adding three more judges to the already seriously underworked and overstaffed DC Circuit. That speaks volumes, of course, about what their agenda is. As I wrote yesterday, the DC Circuit’s docket is mostly about challenges to administrative decisions. Judges in such cases have considerable discretion about whether or not to defer to the judgment of those agencies. If you want to rule by executive diktat, as Obama plainly does, you’ll want “your people” on that court, deferring to “your people” at EPA, HHS, OSHA, the FEC, the IRS, and so on down the line. Let the folks out in the country wait a little longer to get justice. Washington needs to get to the business of “fundamentally changing America.”
Fareed Zakaria’s new column is titled (at least on the Washington Post website) “Why Americans Hate Their Government” or (in the paper) “Why We Hate our Government.” But some of the points he makes might better be seen as reasons not to keep on expanding a government that has grown beyond its competence.
Washington is having one of its odd debates as to whether the Obama administration’s rollout of HealthCare.gov was worse than the Bush administration’s response to Hurricane Katrina. But whatever the answer, if there is one, the real story is that both are examples of a major, and depressing, trend: the declining competence of the federal government. Paul Volcker, former chairman of the Federal Reserve, has been saying for years that most Americans believe their government can no longer act effectively and that this erosion of competence, and hence confidence, is a profound problem.
“The federal service is suffering its greatest crisis since it was founded in the first moments of the republic,” scholar Paul Light writes in his book “A Government Ill Executed.”
Over the past decade, the federal government has had several major challenges: Iraq, Afghanistan, a new homeland security system, Katrina and Obamacare. In almost every case, its performance has been plagued with mismanagement, massive cost overruns and long delays.
Zakaria argues that this was not always the case: “In the 1940s, ’50s and ’60s, federal agencies were often lean, well managed and surprisingly effective.” Maybe so, depending on your metric. But of course in those decades the federal government had not yet undertaken cradle-to-grave responsibilities. Maybe the lesson is that if you want competent government, you should limit it to manageable tasks.
On the other hand,
If you want the federal government to tax (and borrow) and transfer $3.6 trillion a year, if you want it to build housing for the poor and give special benefits to Alaska Natives, if you want it to supply Americans with health care and school lunches and retirement security and local bike paths, then you have to accept that such programs come with incentive problems, politicization, corruption, and waste.
In that case, this is the business you have chosen.
Elane Photography LLC v. Vanessa Willock is the case in which an Albuquerque, NM woman has (thus far successfully) sued husband-and-wife photographers under New Mexico’s “public accommodations” discrimination law for their reluctance to shoot photos of her commitment ceremony to a female partner. One of the most dismaying elements of the case is that the American Civil Liberties Union has taken the anti-liberty side. Adam Liptak in the NYT:
I asked Louise Melling, a lawyer at the American Civil Liberties Union, which has a distinguished history of championing free speech, how the group had evaluated the case.
Ms. Melling said the evaluation had required difficult choices. Photography is expression protected by the Constitution, she said, and Ms. [Elane] Huguenin acted from “heartfelt convictions.”
But the equal treatment of gay couples is more important than the free speech rights of commercial photographers, she said, explaining why the A.C.L.U. filed a brief in the New Mexico Supreme Court supporting the couple.
The ACLU of all groups should have no reason to see this as a “difficult choice” or as a conflict of constitutional values. Free speech and expression rights, which extend to the right not to engage in expression on behalf of a cause one deplores, are central constitutional values and the ACLU is the very first organization people turn to to defend them. Equal treatment of gay couples by private actors, on the other hand (as distinct from by the government itself) has no clear status as a constitutional value at all.
Shame on the ACLU for selling out civil liberties principle in favor of its current notions of civil rights. As Jacob Sullum points out, if it “cannot bring itself to stand up for Huguenin’s rights, it should at least have the decency to sit this one out.” In the mean time, it would do well to adopt some new and changed name on its letterhead, such as American Civil Rights Union.
I’m happy to say that Cato (with law professors Dale Carpenter and Eugene Volokh) filed an amicus brief supporting the photographers’ rights before the New Mexico Supreme Court, albeit unsuccessfully. Certiorari has now been sought at the U.S. Supreme Court.
Well Harry Reid went nuclear, as he’d threatened to do all week. And by a vote of 52-48, Senate Democrats did his bidding just a couple of hours ago. I wrote about his hypocrisy at NRO this morning. He’s the same Harry Reid who assured us only a few months ago that “We’re not talking about changing the filibuster rules that relates to nominations for judges” (Press Briefing, 7/11/13) and “We’re not touching judges. That’s what they were talking about. This is not judges.” (NBC’s “Meet The Press,” 7/14/13). Well we are talking about judges. And we’ll be talking about them quite a bit more, I’m afraid.
The Democratic hypocrisy on the subject boils down to this. After sitting on George W. Bush’s appellate court nominees during his first two years when they controlled the Senate—never even holding hearings—Democrats for the next two years, after losing the Senate in the 2002 midterm elections, conducted unprecedented filibusters of Bush’s appellate court picks—all of which ended only with the “Gang of 14” compromise in 2005. But now that the Republican minority has used that same practice—directed this session only at the latest D.C. Circuit nominees—Democrats have moved to strip it from them—and not by a two-thirds vote of the Senate, as Senate rules require, but by a simple majority. It’s heads I win, tails you lose.
But it doesn’t end there. After Obama’s nominee Sri Srinivasen was unanimously confirmed for the D.C. Circuit last May, Republicans have filibustered Obama’s three latest nominees for that circuit for practical reasons, not for the ideological reasons that drove Democratic filibusters. As I outlined in my NRO piece, there simply isn’t enough work in the D.C. Circuit to justify three more judges. For 17 straight years that court has had the lowest number of appeals filed and the lowest number of appeals terminated of all the circuits.
So what’s the upshot of Reid’s move? The most obvious one is this: If Harry Reid is willing to drop the nuclear bomb for these three nominees—given all that that implies about the sanctity of Senate rules—he must be expecting some return. It’s not for nothing that the D.C. Circuit Court is called the second most important court in the land. It’s the court that will be deciding challenges to the vast executive branch “lawmaking” by which the Obama administration today is ruling America, covering everything from health care to environmental regulations, labor arrangements, financial affairs, and so much more. With a divided Congress, Obama can’t get things done the constitutional way, so he rules by diktat—and hopes the courts will uphold his unilateral decisions. Given the docket of the D.C. Circuit, rule by executive order just got easier.
But Obama has three more years to name judges for the other circuits as well, and possibly for the Supreme Court, and that got easier for him too. And of course it’s now easier to change other Senate rules by a simple majority. But what goes around comes around. And the way the polls are going in the wake of the Obamacare debacle, the Senate itself, already in play, may be more so come next November. If it turns out that way, Republicans should have no scruples about playing by the rules the Democrats have seen fit first to employ, when in the minority, and then to remove, when in the majority. As is said, it couldn’t happen to a nicer bunch.
Christopher A. Preble
A loya jirga, an assembly of 3,000 or so Afghan leaders, is currently reviewing a draft bilateral security agreement that would allow U.S. and other foreign troops to remain in Afghanistan until 2024. Even if it passes with few substantive changes, the agreement is unlikely to please anyone.
Afghan President Hamid Karzai has said he will not sign it, and the few remaining hawks in the United States will point to some military leaders’ call for a much larger force to remain for a generation or more, and accuse President Obama of fecklessness.
Most Americans, however, are likely to have the opposite reaction: a force of 8,000 is too large, and ten years is too long. A senior administration official’s assertion to the New York Times that “there is no scenario in which those forces would stay in Afghanistan until anywhere near 2024,” isn’t likely to be very reassuring. We’ve heard before that open-ended missions wouldn’t be, or that U.S. troops would eventually come home.
The president’s supporters, including Secretary of State John Kerry, characterize the agreement as an acceptable compromise that ensures legal protections for Americans stationed in Afghanistan, while also granting the United States access for continued counterterrorism operations, including raids in Afghan homes, said to be one of the last sticking points of the negotiations.
The details must still be worked out, and it is possible that the loya jirga will alter the agreement, or vote it down. If the legal protections for American citizens are stripped out, or if there is no agreement, then the U.S. military mission should be withdrawn entirely from Afghanistan. As in the case in Iraq, when a democratically elected government refused the Obama administration’s reasonable request to shield U.S. troops from the vagaries of Iraqi justice, no deal should mean no troops. This story is far from over, and I will be watching as more details emerge.
This much is clear, however: The enthusiasm for quixotic nation-building crusades that swept through Washington a few years ago has been replaced by a welcome skepticism. Senior military officers dressed it up with a fancy name–COIN–but the public never bought what they were selling. Now even some scholars within the military establishment are pushing back. A force of 100,000 wasn’t nearly large enough to accomplish a nation-building mission, and, the Obama administration no longer even pretends that that is the true object. A mere 8,000 foreign troops will have trouble enough training an Afghan army beset by illiteracy, absenteeism, and corruption. Any pretense that the few U.S. troops who remain in Afghanistan after 2014 can write Afghan legal codes, build a functioning political system, put the country on the road to economic self-sufficiency, and protect the rights of women and religious and ethnic minorities is out the window.
But the critical constraint on any lingering nation-building fantasies is the American people who want this nation’s longest war to be over. They should be forgiven for believing that it would be by now, given that President Obama intoned repeatedly during last year’s campaign that he was committed to ending it.
He hasn’t yet.
Paul C. "Chip" Knappenberger
Tomorrow [today] Rep. Henry A. Waxman and Sen. Sheldon Whitehouse, co-chairs of the Bicameral Task Force on Climate Change, will host representatives from five of America’s major sports leagues, as well as the U.S. Olympic Committee (USOC), to discuss the effects of climate change on sporting activities and the work these organizations are doing to reduce their greenhouse gas (GHG) emissions. The group will meet for a closed-door discussion, followed by a press availability.
Now, admittedly, even as a climatologist, I do spend a fair amount of time discussing sports.
But I do so around the water cooler or at the local bar, not with Congressional task forces.
Your tax dollars are probably better served that way.
Ilya ShapiroThe Congressional Black Caucus has now explicitly attacked Republicans as racist for blocking President Obama’s latest judicial nominees. Not only are they racist, but if you scratch them, you find Confederate gray. Unbelievable. Do these elected officials really think that the filibustering of three D.C. Circuit nominees (one of whom is black) has more to do with race than either judicial philosophy or the ongoing battle over whether this underworked court actually needs more judges? Even after Indian-American Sri Srinivasen was confirmed to that same court unanimously in May after Caitlin Halligan (who’s white) was blocked for ideological reasons? Moreover, this is a pretty rich accusation for Democratic lawmakers to make after the filibustering of Janice Rogers Brown (since confirmed after the ‘Gang of 14’ deal) and Miguel Estrada (seven failed cloture votes ultimately leading to withdrawal) during the Bush years. And recall the infamous memo detailing how Estrada needed to be blocked because he’s Latino. This isn’t even about whether the Senate should use the “nuclear option” to end the filibustering of nominees – that’s a question of tactics rather than principles – but if Republicans had done that back in 2006, we wouldn’t still be trapped in this political gamesmanship. Regardless of what happens on that front, however, there should be a forceful response from folks named Cruz and Rubio – and Tim Scott, who was the only African-American senator until Cory Booker’s election. This is shameful – but alas of a piece with this administration’s racialization of everything from housing policy to Justice Department hiring to voter ID. It’s too bad that the CBC passes for leadership in the black community, distracting its constituents from real policy issues to engage in base calumny. I guess if all you have is a demagogic hammer, then everything is a racist nail.
Gerald P. O'Driscoll Jr.
The Senate Banking Committee just voted 14 to 8 to confirm Janet Yellen’s nomination to be the new Chair of the Federal Reserve. She will likely go on to be confirmed by the full Senate.
Much of the coverage has focused on Yellen as a person, when the real story is on the Fed as an institution. Sometimes individuals have profound influence on Fed policy, such as Paul Volcker in the late 1970s and 1980s. Over time, however, the institutional structure of the central bank and the incentives facing policymakers matter more.
The Federal Reserve famously has a dual mandate of promoting maximum employment and price stability. The Federal Open Market Committee, which sets monetary policy, has great discretion in weighting the two policy goals. As a practical matter, the vast majority of the time, full employment receives the greater weight. That is because the Fed is subject to similar pressures as are the members of Congress to which the Fed must report. In the short run, voters want to see more job creation. That is especially true today. The United States is experiencing weak growth with anemic job creation.
Never mind that the Fed is not capable of stimulating job creation, at least not in a sustained way over time. It has a jobs mandate and has created expectations that it can stimulate job growth with monetary policy. The Fed became an inflation-fighter under Volcker only when high inflation produced strong political currents to fight inflation even at the cost of recession and job creation.
The Federal Reserve claims political independence, but it has been so only comparatively rarely. Even Volcker could make tough decisions only because he was supported by President Carter, who appointed him, and President Reagan, who reappointed him. Conventionally defined inflation is low now, so the Fed under any likely Chair would continue its program of monetary stimulus. Perhaps Yellen is personally inclined to continue it longer than might some other candidates. But all possible Fed chiefs’ would face the same pressures to “do something” to enhance job growth, even if its policy tools are not effective.
The prolonged period of low interest rates has made the Fed the enabler of the federal government’s fiscal deficits. Low interest rates have kept down the government’s borrowing costs, at least compared to what they would have been under “normal” interest rates of 3-4 percent.
Congress and the president have been spared a fiscal crisis, and thus repeatedly punted on fiscal reform. They are likely to continue doing so until rising interest rates precipitate a crisis. How long that can be postponed remains an open question.
There’s been much ink spilled the past few days over U.S. Secretary of Education Arne Duncan’s defense of the Common Core, delivered as an obnoxious attack on white, suburban women. Proclaimed Duncan to a meeting of the Council of Chief State School Officers (one of the Core’s progenitors):
It’s fascinating to me that some of the pushback is coming from, sort of, white suburban moms who – all of a sudden – their child isn’t as brilliant as they thought they were and their school isn’t quite as good as they thought they were, and that’s pretty scary.
Much of the uproar over Duncan’s attack has been over his injecting race and sex into the Common Core debate, and that certainly was unnecessary. But much more concerning to me – and indicative of the fundamental problem with federally driven national standardization – is the clear message sent by Duncan’s denunciation of Jane Suburbia: average Americans are either too dull or too blinkered to do what’s best for their kids. The masses need their betters in government – politicians, bureaucrats – to control their lives.
Alas, this has been a subtext of almost the entire defense of the Core. Every time supporters decide to smear opponents primarily as “misinformed” or “conspiracy theorists,” they imply that people who are fighting for control of what their children will learn are either too ignorant, or too goofy, to matter.
Of course, there are some opponents who don’t get all the facts right about the Common Core, but supporters ignore that many of these people are just finding out about the Core. Unlike major Core supporters, many opponents – often parents and plain ol’ concerned citizens – haven’t been working on the Core for years. And even when opponents use such regretably over-the-top rhetoric as calling the Common Core “Commie Core,” they are ultimately making a legitimate point: the federally driven Core is intended to make the learning outcomes of all public schools the same – “common” is in the name, for crying out loud! – and in so doing, nationalize learning. At the very least, that’s not a move in the libertarian direction.
Every once in a while, Core supporters will openly air their basic distrust of average Americans. If you go to the 53:10 mark of our Common Core “Great Debate,” you’ll catch just such an admission by Chester Finn, president of the Core-championing Thomas B. Fordham Institute. In response to an explanation of how free markets enable average people to smartly consume things about which they are not experts, Finn declares that most parents won’t do even easy work to make informed choices. Then he asks, “is that a way to run a society?”
And there it is: In the end, Common Core, and all the government power behind it, is ultimately about experts running society rather than letting free people govern themselves. Why? Because parents – “the people” – are either thought incapable, or unwilling, of caring for their children themselves.
This attitude if fundamentally at odds with maintaining a free society. It declares that government must control what children learn, and in so doing gives government – not free people – the power over what the next generation of Americans will think. This is not to say that the Common Core is intended to inculcate values and attitudes – most supporters probably just want to better furnish skills – but it will nevertheless couple power over what the schools teach with an attitude that is fundamentally corrupting: I know what is best, and must make you do it. And if your betters think you can’t be trusted to teach your child about something as unthreatening as the ABCs, imagine what they may eventually require – or forbid – in teaching about religion, or guns, or climate change?
As has been the case in the past, Secretary Duncan has actually done Common Core opponents a huge favor in an effort to take them down. But this may be his most important contribution yet, revealing the supremely threatening contempt in which he seems to hold the average parent, and which drives the Common Core.
My new study on the Transportation Security Administration mainly focuses on the agency’s poor management and performance. The TSA has a near monopoly on security screening at U.S. airports, and monopoly organizations usually end up being bloated, inefficient, and providing low-quality services.
The study proposes contracting out or “privatizing” airport screening, which is the structure of aviation security used successfully in Canada and many European countries.
I briefly discuss some of the civil liberties problems surrounding TSA. Note that Cato’s Jim Harper also addresses those issues in his work, as does Robert Poole of Reason Foundation. I noticed this recent blog post by Poole that nicely summarizes some of the realities of TSA, terrorism, and civil liberties:
A couple of years ago Jonathan Corbett, a tech entrepreneur from Miami, posted videos online showing him successfully passing through TSA airport body scanners with a metal box concealed under his clothing, seeking to demonstrate that the scanners are an ineffective replacement for walk-through metal detectors for primary screening. In 2010 he filed a lawsuit contending that body-scanning and pat-downs are both unreasonable searches that violate the Fourth Amendment.
As part of the discovery process, TSA provided Corbett with 4,000 pages of documents, many of them classified. He was allowed to produce two versions of his brief, one containing extracts of classified material, and available only to the court, and a heavily redacted version which could be made public. But as several news sites reported last month, a clerk in the US Court of Appeals (11th District) mistakenly posted the classified version online, and it was quickly noticed and reproduced on various websites. Although the court issued a gag order prohibiting Corbett from talking about the classified material, there was no way to stop others from doing so.
Among the things we’ve learned from TSA Civil Aviation Threat Assessments that Corbett cited in his brief are the following:
- “As of mid-2011, terrorist threat groups present in the Homeland are not known to be actively plotting against civil aviation targets or airports; instead, their focus is on fund-raising, recruiting, and propagandizing.”
- No terrorist has attempted to bring explosives onto an aircraft via a U.S. airport in 35 years, and even worldwide, the use of explosives on aircraft is “extremely rare.”
- There have been no attempted domestic hijackings of any kind since 9/11.
- The government concedes that it would be difficult to repeat a 9/11-type attack due to strengthened cockpit doors and passengers’ willingness to challenge would-be hijackers.
Based on these points, Corbett argues that primary-screening searches via body-scanners or pat-downs are unreasonable under the Fourth Amendment. He agrees that although those searches have not turned up any would-be terrorists, they have detected illegal drugs. But that is irrelevant to aviation security, which is the only purported rationale for such intrusive searches without prior probable cause.
Corbett does not directly address whether the whole array of TSA airport screening measures may have deterred attacks that might have happened without those measures in place. But that is the kind of question that can be—and has been—assessed quantitatively by security experts such as Mark Stewart and John Mueller, whose work I have cited several times in previous issues of this newsletter. And those assessments suggest that body scanners and Federal Air Marshals, among other measures, cost vastly more than they are worth.
Whatever the outcome of Corbett’s suit—and I hope he prevails—Congress needs to take a hard look at the cost-effectiveness of much of what TSA is doing, in light of the revelations inadvertently made public by this case.”
Poole has done superb work over the years, not only on airport screening, but also on airport and air traffic control privatization. Bob’s work can be found here, and our joint article on airports and ATC is here.
Hans Riegel recently died at age 90. He changed the world for the better. He brought us the treat known as gummi bears.
Politicians routinely crusade against wealth and inequality, but that occurs naturally when people create products and offer services benefiting the rest of us.
Today people live on their cell phones. Once we didn’t even have telephones. Thank Alexander Graham Bell, born in Edinburgh, Scotland.
The internal combustion engine auto came from Karl Benz. He was a design engineer who in 1886 won a patent for a “motor car.”
In 1903, Clarence Crane created the hard fruit candy known as Life Savers.
Helen Greiner, a fan of Star Wars’ R2D2, came up with the Roomba vacuum cleaner robot in 2002.
John Mauchly and John Eckert created the first computer in 1946—the Electronic Integrator and Computer, or ENIAC.
Thomas Edison gave us working light bulbs in 1879. Joseph Swan might have beaten Edison, but the latter bought Swan’s patent.
The 3-D printer was created in 1983 by Chuck Hall. His first creation: a tea cup.
General Electric engineer James Wright attempted to make artificial rubber during World War II. He failed, but ad man Peter Hodgson later discovered the malleable material and began selling Silly Putty.
While developing magnetrons for radar in World War II, Percy Spencer noticed that a candy bar in his pocket melted. The result was the microwave oven.
Credit for television goes to Russian émigré Vladimir Zworykin. In 1920 he developed an iconoscope, or television transmission tube, and kinescope, a television receiver.
That same year Austrian Eduard Hass developed the peppermint candy, “pfefferminz” in German, known as PEZ.
The Scottish Charles Macintosh came up with the waterproof Mackintosh Raincoat. A store clerk turned chemist, in 1823 he figured out how to make waterproof fabric.
Infections once were common killers. But in 1928 another Scot, Alexander Fleming, discovered penicillin.
Edward Binney and Harold Smith owned an industrial pigment company and in 1903 combined industrial pigments with paraffin wax. By 1996, 100 billion crayons had been produced.
In 1935, Frederick McKinley Jones developed portable air-conditioning for trucks. Jones became the first African-American elected to the American Society of Refrigeration Engineers.
John Pemberton, an Atlanta pharmacist, developed Coca Cola’s original formula in 1885, in response to a ban on the sale of his wine-coca “patent medicine.”
Canadian-born James Naismith studied theology and worked at a Massachusetts YMCA. In 1891, he relied on a childhood game to develop basketball as a sport to be played indoors in the winter.
In 1884, Lewis Waterman developed the fountain pen. He took ten years to perfect his invention.
Arthur Fry gave the world the “Post-It Note” in 1974. He was both a chemist at 3M and wanted a bookmark that would cling to church hymnal pages. He thought of a failed glue created by a colleague.
Ruth Wakefield, regionally famous for her cooking, ran out of baker’s chocolate while making cookies and in 1930 substituted chunks of semi-sweet chocolate. Her recipe increased chocolate sales and became known to Nestle, which consequently created chocolate chips.
In 1964, while seeking a new synthetic fiber, Stephanie Kwolek came up with the well-nigh indestructible Kevlar—commonly part of bullet-proof vests.
John Harvey Kellogg was a vegetarian who headed a Michigan sanitarium. Faced with wheat gone stale, in 1894 he processed it into dough anyway and ended up with flakes.
These are just a few of the inventions which surround and enrich us. Human creativity and ingenuity—punctuated with a mix of luck and hard work—constantly transform our lives.
As I pointed out in my latest Forbes online column:
Few things better illustrate Adam Smith’s axiom that people can simultaneously benefit the rest of us while pursuing their own interest. Of course people should do good. But they often do best while trying to advance themselves.
Some inventors just love to create. Others hope for money, glory, or something else. Whatever their motives, the rest of us gain.
Like being able to enjoy gummi bears. Hans Riegel, RIP!
Last week I noted that it was “long past time for the U.S. Department of Justice to drop its embarrassing lawsuit which would keep black kids in failing schools.” The Louisiana Department of Education released a study that completely undermined the DOJ’s case against the state’s school voucher program, showing that the program increased racial integration in most of the schools under federal desegregation orders and had a miniscule impact in the remainder.
Today, Michael Warren of the Weekly Standard reports that the DOJ has dropped part of its fight against school choice in Louisiana:
The Obama administration’s Justice Department has dropped a lawsuit aiming to stop a school voucher program in the state of Louisiana. A ruling Friday by a United States district court judge revealed that the federal government has “abandoned” its pursuit of an injunction against the Louisiana Scholarship Program, a state-funded voucher program designed to give students in failing public schools the opportunity to attend better performing public or private schools.
“We are pleased that the Obama Administration has given up its attempt to end the Louisiana Scholarship Program with this absurd lawsuit,” said Louisiana governor Bobby Jindal, a Republican, in a statement. “It is great the Department of Justice has realized, at least for the time being, it has no authority to end equal opportunity of education for Louisiana children.”
The move may have resulted from the bad press or a sudden acceptance of common sense, but more likely it was a simply legal maneuver to prevent the Black Alliance for Educational Options and the Goldwater Institute, representing parents of voucher recipients, from intervening in the lawsuit as defendants. As Warren reports:
On Friday, Judge Ivan Lemelle of the U.S. district court of the Eastern District of Louisiana ruled the parents could not intervene in the case because the feds are “no longer seeking injunctive relief at this time.” Lemelle explained that in the intervening months since the Justice Department filed suit, it had made clear both in a supplemental filing and in its opposition to the parent group’s motion to intervene that it was not seeking in its suit to end the voucher program or take away vouchers from students.
Lemelle continued: “The Court reads these two statements as the United States abandoning its previous request that the Court ‘permanently enjoin the State from issuing any future voucher awards to students unless and until it obtains authorization from the federal court overseeing the applicable desegregation case.’”
Lemelle will hold an oral hearing on Friday, November 22, during which Justice will make its case for the federal review process of the voucher program. In his statement on Friday’s ruling, Jindal criticized the federal government’s efforts.
“The centerpiece of the Department of Justice’s ‘process’ is a requirement that the state may not tell parents, for 45 days, that their child has been awarded a scholarship while the department decides whether to object to the scholarship award. The obvious purpose of this gag order would be to prevent parents from learning that the Department of Justice might try to take their child’s scholarship away if it decides that the child is the wrong race,” said Jindal. “The updated Department of Justice request reeks of federal government intrusion that would put a tremendous burden on the state, along with parents and teachers who want to participate in school choice.”
In other words, the DOJ is still seeking the legal authority to prevent low-income kids from escaping failing public schools if the feds say they have the wrong skin color.
Last week, A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case was released, of which I am proud to be the editor. The book compiles the discussions and debates about the Affordable Care Act that occurred on the legal blog the Volokh Conspiracy, supplemented with new material. The posts are stitched together into a narrative structure. As a result, you can see the constitutional arguments against the Affordable Care Act develop in real time, from before the law was passed all the way to the Supreme Court.
The book documents a bellwether moment in the history of legal academia: A legal academic blog influencing major Supreme Court litigation. And not just major Supreme Court litigation, but a case that went from a much derided challenge to the biggest and most watched case in decades. As former Solicitor General Paul D. Clement, who expertly argued the case before the Court, kindly wrote in the foreword, “The Constitution had its Federalist Papers, and the challenge to the Affordable Care Act had the Volokh Conspiracy.”
In the introduction, I discuss the constitutional arguments against the law in a more abstract way, as well as describe how the law is destined to fail due to poor design. We are seeing the beginning of those failures now, but I fear we ain’t seen nothin’ yet.
It was not much commented on at the time–the administration and the law’s supporters were too busy spiking the ball–but the Supreme Court’s decision will speed up the law’s inevitable failures. As I describe in the introduction:
Due to the chief justice’s unpredictable opinion, we are now likely stuck with a law that I fear will seriously damage the health of Americans. What’s more, attempts to further centralize power will not stop at the individual mandate. When the law fails, as I predict it will, it will be said that the federal government lacked enough power to make it work. The chief justice’s opinion gives people a real choice whether to comply with the requirement to purchase insurance or pay a “tax.” Many people will not, and as the price of insurance goes up, more and more people will choose to remain uninsured. This will certainly be called a “loophole.” Similarly, the Court also gave states a choice about whether to comply with the Affordable Care Act’s Medicaid expansion. Another “loophole.” Finally, the states that don’t create health care exchanges will also throw wrenches in the law’s overall scheme. “Loopholes” all around. Having freedom of choice in deeply personal health care decisions, however, is not a loophole.
When the time comes to revisit the Affordable Care Act, those choices by free, sovereign entities (citizens and states) will be blamed for the law’s dysfunctions. To paraphrase philosopher Robert Nozick, liberty disrupts patterns. Free choice inevitably upsets the carefully crafted plans of Washington.
As a solution to the law’s problems, more power will be proposed. A few voices, such as many who write for the Volokh Conspiracy and those of us at the Cato Institute, will strenuously argue that the problem is not a lack of power but a lack of freedom. I am not optimistic, however, that very many entrenched bureaucrats and politicians will locate the problem in the mirror rather than in the freedoms of the American people.
If the Affordable Care Act keeps going south at this rate, we may need to prepare to have that debate sooner than we expected.
The Federalist Society came into being in 1982 after a small group of conservatives and libertarians, concerned about the state of the law and the legal academy in particular, gathered for a modest conference at the Yale Law School, after which two law-student chapters were formed at Yale and at the University of Chicago. Quickly thereafter chapters sprung up at other law schools across the country. And in 1986 those students, now lawyers, started forming lawyer chapters in the cities where they practiced. Today the Federalist Society is more than 55,000 strong, its membership drawn from all corners of the law and beyond.
Toward the end of this past week many of those members gathered in Washington for the society’s 27th annual National Lawyers Convention, highlighted on Thursday evening by a gala black tie dinner at the conclusion of which Judge Diane Sykes of Seventh Circuit Court of Appeals treated the audience to a wide-ranging interview of Justice Clarence Thomas. The convention sessions, concluding late Saturday, have now been posted at the Federalist Society’s website. As a look at the various panels and programs will show, this year’s theme, “Textualism and the Role of Judges,” was addressed in a wide variety of domains.
Concerning the role of judges, classical liberals and libertarians, who have long urged judges to be more engaged than many conservatives have thought proper, will find several panels of particular interest. Our own Walter Olson spoke about the new age of litigation financing, for example, while Nick Rosenkranz addressed textualism and the Bill of Rights – a panel that also included the spirited remarks of Cato adjunct scholar Richard Epstein. See also Epstein’s discussion of intellectual property on another panel that first day.
Then too you won’t want to miss senior fellow Randy Barnett’s treatment of textualism and constitutional interpretation the next day, especially as he spars with two opponents on the left, or his Saturday debate against Judge J. Harvie Wilkinson III of the Fourth Circuit Court of Appeals, where the proposition before the two was “Resolved: Courts are Too Deferential to the Legislature.” And finally, our own Trevor Burrus was on hand for a book signing: The book he edited, A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case, has just come out and is must reading for those who want to see how the issue of the day, and many days to come, was teed up, legally, by a dedicated band of libertarians before it reached the Supreme Court.
Last week, the big news in the trade agreement arena was the leak of a draft text on intellectual property (IP) in the Trans Pacific Partnership (TPP) talks. Tim Lee of the Washington Post (and formerly a Cato adjunct scholar) explains what’s in it:
The leaked draft is 95 pages long, and includes provisions on everything from copyright damages to rules for marketing pharmaceuticals. Several proposed items are drawn from Hollywood’s wish list. The United States wants all signatories to extend their copyright terms to the life of the author plus 70 years for individual authors, and 95 years for corporate-owned works. The treaty includes a long section, proposed by the United States, requiring the creation of legal penalties for circumventing copy-protection schemes such as those that prevent copying of DVDs and Kindle books.
The United States has also pushed for a wide variety of provisions that would benefit the U.S. pharmaceutical and medical device industries. The Obama administration wants to require the extension of patent protection to plants, animals, and medical procedures. It wants to require countries to offer longer terms of patent protection to compensate for delays in the patent application process. The United States also wants to bar the manufacturers of generic drugs from relying on safety and efficacy information that was previously submitted by a brand-name drug maker — a step that would make it harder for generic manufacturers to enter the pharmaceutical market and could raise drug prices.
While the critics pounced, defenders defended. Here’s the MPAA:
What the text does show … is that despite much hyperbole from free trade opponents, the U.S. has put forth no proposals that are inconsistent with U.S. law.
In response to this statement, it is worth noting two things. First, many of the critics of this IP text are not “free trade opponents.” They simply oppose overly strong IP protections. Many of them are actually for free trade, or at least not actively against it. Second, while these proposals may not be inconsistent with U.S. law, that doesn’t make them good policy.
I have a feeling that the IP aspect of the TPP talks is going to be very important for the future of IP in trade agreements. IP was kind of slipped into trade agreements quietly back in the early 1990s. But the recent backlash has been strong. How the TPP fares politically here in the U.S. – if and when negotiations are completed – could tell us a lot about what the future holds for IP in trade agreements.