Archive | Growth of Government

Steven Teles on “Kludgeocracy” and the Role of Government in Society

In the fall issue of National Affairs, Johns Hopkins political scientist Steven Teles has an interesting article on what he dubs the problem of “kludgeocracy” in American government:

In recent decades, American politics has been dominated, at least rhetorically, by a battle over the size of government. But that is not what the next few decades of our politics will be about. With the frontiers of the state roughly fixed, the issues that will define our major debates will concern the complexity of government, rather than its sheer scope.

With that complexity has also come incoherence. Conservatives over the last few years have increasingly worried that America is, in Friedrich Hayek’s ominous terms, on the road to serfdom. But this concern ascribes vastly greater purpose and design to our approach to public policy than is truly warranted. If anything, we have arrived at a form of government with no ideological justification whatsoever.

The complexity and incoherence of our government often make it difficult for us to understand just what that government is doing, and among the practices it most frequently hides from view is the growing tendency of public policy to redistribute resources upward to the wealthy and the organized at the expense of the poorer and less organized. As we increasingly notice the consequences of that regressive redistribution, we will inevitably also come to pay greater attention to the daunting and self-defeating complexity of public policy across multiple, seemingly unrelated areas of American life, and so will need to start thinking differently about government.

Understanding, describing, and addressing this problem of complexity and incoherence is the next great American political challenge. But you cannot come to terms with such a problem until you can properly name it. While we can name the major questions that divide our politics

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Using NSA Surveillance Data in the War on Drugs

On Monday, Reuters reported that the Special Operations Division, a secretive unit of the Drug Enforcement Administration is using NSA electronic surveillance data in the War on Drugs, and then deceiving judges and defense lawyers about the source of the evidence when it is used in criminal trials. As various experts quoted by Reuters point out, such deception is a violation of elementary due process.

Julian Sanchez of the Cato Institute has a good post discussing some of the other risks of this kind of “mission creep”:

This should serve as a crucial reminder that you can’t build a massive architecture of surveillance “just for terrorism” and expect it to remain limited to that function: once the apparatus exists, there will inevitably be incredible pressure from other interests within government to expand its use. Once the data is already begin collected, after all, it seems a waste not to exploit its full potential. And indeed, we’ve seen again and again how—mostly because there just aren’t all that many terrorists out there—powers and programs justified by the need to fight the War on Terror end up getting coopted for the War on Drugs, from the Patriot Act’s “Sneak and Peek” searches (used almost exclusively in drug rather than terror investigations) to federally funded “fusion centers.”

Such expansive use of surveillance data beyond national security purposes has already occurred in France. In the United States, as Sanchez notes, the New York Times recently reported that many domestic agencies are clamoring to use NSA data for their own purposes:

The recent disclosures of agency activities by its former contractor Edward J. Snowden have led to widespread criticism that its surveillance operations go too far and have prompted lawmakers in Washington to talk of reining them in. But out of public view, the

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NY appellate court rules 5-0 against Bloomberg soda ban

The First Department of the Appellate Division of the New York Supreme Court has ruled 5-0 against NYC Mayor Michael Bloomberg’s soda ban, in the case of  In re New York Statewide Coalition of Hispanic Chambers of Commerce, et al. v. The New York City Department of Health and Mental Hygiene, et al. (The Hispanic Chambers opinion begins on page 22, following two other opinions released the same day.)

In New York State, the trial courts of general jurisdiction are the Supreme Court. The intermediate courts of appeal are the Appellate Division, which are divided into four geographic Departments, similar to the U.S. Circuit Courts of Appeal. The highest court is the Court of Appeals. Thus, Mayor Bloomberg has the option of trying to bring the case to the Court of Appeals.

The Appellate Division’s decision is quite straightforward: “[T]he Board [of Health] did not bring any scientific or health expertise to bear in creating the Portion Cap Rule. Indeed, the rule was drafted, written and proposed by the Office of the Mayor and submitted to the Board, which enacted it without substantive changes.” If the Board’s ban on the sale of sodas larger than 16 ounces were actually a health rule (similar, for example, to a ban on the sale of infected meat), there would not be so many exemptions for certain types of vendors.

The Appellate Division applied the four-part separation of powers test from Boreali v Axelrod, 71 NY2d 1 (1989). The Appellate Division summarized the four Boreali factors:

First, Boreali found the PHC [Public Health Council] had engaged in the balancing of competing concerns of public health and economic costs, “acting solely on [its] own ideas of sound public policy”. Second, the PHC did not engage in the “interstitial” rule making typical of administrative

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Canada Day

Since today is Canada Day, this is an appropriate time to thank that nation for giving us most of the greatest Boston Bruins players, including Bobby Orr, Phil Esposito, Ray Bourque, and Rick “Nifty” Middleton (my favorite player when I was little). I even rooted for Canada more than the US in the 1984 and ’87 Canada Cup tournaments, because Bourque and other Bruins stars were on the Canadian team (also because the US had no chance of winning).

On a (slightly) more serious note, Canada also deserves credit for surpassing the United States on both the Cato/Fraser Institute and Heritage economic freedom ranking. This is partly due to serious backsliding by the US over the last decade. But it is also the result of Canada’s impressive success in getting its government spending under control in the 1990s and early 2000s. Canadian-born economist David David R. Henderson tells the story of that achievement here. Hopefully, the United States can imitate Canada’s achievement in this field, though I’m not optimistic it will happen quickly.

Despite some ongoing problems and periodic secession crises, Canada is also a good example of the use of federalism to reduce ethnic conflict and empower ethnic minorities.

None of this will prevent me from hating the Montreal Canadiens when the next NHL season starts. But in the meantime, Happy Canada Day! [...]

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Dick Cheney Unintentionally Explains the Dangers of the NSA Surveillance Program

In this recent article, conservative columnist John Fund highlights some interesting comments by former Vice President Dick Cheney:

On Sunday, former vice president Dick Cheney addressed the dilemma many conservatives face in assessing the revelations about the National Security Agency’s data collection. On the one hand, they are suspicious of the federal government. On the other, they often mute such concerns when it comes to anything touching on national security.

Cheney captured the tension perfectly in defending the NSA’s activities. Fox News Sunday’s Chris Wallace first asked him: “What right do you think the American people have to know what the government is doing?” After a pause, Cheney said: “Well, they get to choose, they get to vote for senior officials, like the president of the United States or like the senior officials in Congress. And you have to have some trust in them….”

Later in the interview, Wallace asked Cheney for his opinion of President Obama. “I don’t think he has credibility,” he said. “I think one of the biggest problems we have is, we have got an important point where the president of the United States ought to be able to stand up and say, ‘This is a righteous program, it is a good program, it is saving American lives, and I support it.’ And the problem is the guy has failed to be forthright and honest and credible on things like Benghazi and the IRS. So he’s got no credibility.” If we are to rely on the people elected to high office not to abuse their authority, what do we do when they do exactly that — as Cheney thinks Obama has?

So Cheney’s view is that the NSA program is justified because we should trust “senior officials, like the president of the United States.” But [...]

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Public Ignorance About How Government Policy Works

NPR reports on an interesting recent article by psychologist Phil Fernbach and his coauthors, which finds that public ignorance about the details of policy has an important impact on voters’ political views:

Should the United States impose unilateral sanctions on Iran for its nuclear program? Should we raise the retirement age for Social Security? Should we institute a national flat tax? How about implementing merit-based pay for teachers? Or establishing a cap-and-trade system for carbon emissions?

Plenty of people have strong opinions about complex policy issues like these. But few people have the detailed knowledge of policy or economics that a solid understanding of the issues seems to require. Where do these opinions come from, if not from careful analysis and deep understanding?

A variety of uncharitable answers come to mind. Perhaps people just adopt the attitudes of their local community or favorite pundits. Perhaps people believe what they want to believe. Or perhaps people think they do understand the issues, at least well enough to support their own opinions.

A recent paper by psychologist Phil Fernbach of the Leeds School of Business at the University of Colorado and his collaborators, published this May in Psychological Science, provides some evidence for this final option: people overestimate how well they understand the mechanics of complex policies, and this sense of understanding helps bolster politically extreme positions…

Here’s how the study worked. People completed an online survey in which they first rated their agreement with several policies, such as sanctions on Iran and a cap-and-trade system for carbon emissions. They were then asked to estimate how well they felt they understood each policy and received an unexpected request: for two of the policies, they were told to “describe all the details” they knew about the impact of instituting that policy, “going from

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Obama Adviser Realizes that the Size of Government Matters After All

In his first Inaugural Address, President Obama famously said that we should not ask “whether our government is too big or too small, but whether it works.” I criticized this indifference to the size of government in one of my very first posts of the Obama Presidency. More recently, however, longtime Obama adviser David Axelrod recognized that the size of government does matter after all:

As the nation’s chief executive, President Obama is accountable for the IRS, State Department and Justice Department. His longtime adviser David Axelrod last week blamed a too-big government for the scandals: “Part of being president is that there’s so much beneath you that you can’t know because the government is so vast.” [HT: Don Boudreaux]

In my 2009 post on Obama’s Inaugural Address and in a forthcoming book, I explained that one of the dangers of big government is that rationally ignorant voters are unable to effectively monitor its activities. A closely related problem is that the modern federal government is also too large for the president to effectively monitor – even with the help of topnotch advisers like Axelrod.

Axelrod’s defense of Obama is actually very plausible. It is quite possible that Obama didn’t know about the IRS’ abusive targeting of conservative groups, and that if he had known he would have ordered them to stop – if only to forestall a scandal that might become a dangerous political liability. Yet Obama probably didn’t know because, as Axelrod puts it, “the government is so vast” that he could not possibly keep track of what it was doing.

In fairness to Obama, much of the government growth that makes his job so difficult occurred on his predecessor’s watch. The current administration is far from solely responsible for the overgrown size [...]

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Perils of Prosecutorial Discretion in a World Where Everyone is a Criminal

University of Tennessee lawprof Glenn Reynolds (AkA “Instapundit”) has an interesting short paper on the dangers of prosecutorial discretion in a world where the scope of criminal law has gotten so vast that almost anyone can be convicted of a crime if the prosecutor goes after them aggressively enough:

Attorney General (and later Supreme Court Justice) Robert Jackson once commented: “If the prosecutor is obliged to choose his cases, it follows he can choose his defendants…..“ Prosecutors could easily fall prey to the temptation of “picking the man and then searching the law books…. to pin some offense on him.” In short, prosecutors’ discretion to charge – or not to charge – individuals with crimes is a tremendous power, amplified by the huge number of laws on the books….

As Tim Wu recounted in 2007, a popular game in the U.S. Attorney’s office in the Southern District of New York was
to name a famous person – Mother Teresa, or John Lennon -­ and decide how they could be prosecuted….:

The trick and the skill lay in finding the more obscure offenses that fit the character of the celebrity and carried the toughest sentences. The, result, however, was inevitable: “prison time….”

The result of overcriminalization is that prosecutors no longer need to wait for obvious signs of a crime. Instead of finding Professor Plum dead in the conservatory and launching an investigation, authorities can instead start an investigation of Colonel Mustard as soon as someone has suggested he is a shady character. And since, as Wu’s game illustrates, everyone is a criminal if prosecutors look hard enough, they’re guaranteed to find something eventually.

Glenn goes on to note that, once prosecutors do go after a defendant, they can often force him to plead guilty even if he is innocent of [...]

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Does any government have the legitimate power to ban medical marijuana?

Ernst Freund was one of the Founding Fathers of progressive constitutionalism. His 1904 book The Police Power: Public Policy and Constitutional Rights argued for a vastly expanded understanding of the police power. (The police power, broadly defined, is a government’s power to regulate health, safety, welfare and morals. It is distinct from other government powers, such as the tax power, or the military power. In the U.S. system, the federal government does not have a police power, except as to federal territories, but the States do have a police power.)

Freund’s expansive view of the police power aimed to overthrow the then-prevailing (at least in theory) view, articulated by Christopher Tiedeman in his 1886  A Treatise on the Limitations of the Police Power in the United States, that the police power could only be used to prevent people from harming others or violating their rights. In the long run, Freund’s view became the mainstream.

So what would Freund, that great advocate for loosening the restraints on big government, have to say about laws which prohibit the medical use of marijuana? Here’s what he wrote about liquor prohibition:

All prohibitory laws make an exception in favor of sales for medical purposes. This is not a legislative indulgence but a constitutional necessity, since the state could not validly prohibit the use of valuable curative agencies on account of remote possibility of abuse. “[T]he power of the legislature to prohibit the prescription and sale of liquor to be used as medicine does not exist, and its exercise would be as purely arbitrary as the prohibition of its sale for religious purposes….” The right to an adequate supply of medicines cannot be cut off by the legislature, and when legal provisions would have such effect they must that extent be inoperative.

Freund, at [...]

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Public Opinion on the Role of Government

Commentators such as liberal E.J. Dionne and even libertarian David Harsanyi are claiming that the election results prove that Obama won a great referendum on the role of government in American society, achieving a mandate for expanded government intervention.

The CNN exit polls tell a very different story. 51 percent of voters said that government is doing “too much” that should be left to businesses and individuals, compared to 43% who believe that government should do “more” to solve problems. By far the biggest and most controversial new government program of the last four years was the Obama health care plan. The CNN poll shows that 49% would like to see it repealed in whole or in part, while 44% want to keep it as is or expand it. The latter number is particularly interesting in light of the fact that we just went through an election where the GOP nominee could not attack the individual health insurance mandate – the single most unpopular part of the law – because he enacted an individual mandate himself back when he was governor of Massachusetts.

Somewhat inconsistently, there is a 63-33 majority against the idea that taxes should be raised to help cut the deficit, but a 60-35 majority in favor of raising taxes on people earning over $250,000 per year. Either there is a huge number of people who want to raise taxes but not spend any of the money on paying down the deficit, or (more likely) the wording of the two questions has different framing effects.

I don’t fool myself into believing that the majority of the public are as libertarian as I am. Not even close. The vast bulk of the 51% who believe government is doing too much and and the 49% who would like to [...]

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“Failure: Why We Need It”

That was the provocative title of a seminar earlier this month organized by the Istituto Bruno Leoni, Italy’s free market think tank. The event was the IBL’s 9th annual Mises Seminar. As is common at multinational seminars in Europe, the event and the papers were in English, which is today’s lingua franca among well-educated Europeans.

My favorite paper was presented by Kaetana Leontjeva, who is a Senior Policy Analyst at the Lithuanian Free Market Institute. Her paper, Old-age state social insurance: may its failure be averted?, examines the history of old-age pension systems throughout Europe, with a special focus on the USSR, Lithuania and Georgia. She shows how these programs, initially of modest size, grew to an unustainable  level that is financed by borrowing. She argues that there are only two realistic alternatives:

1. Continuing the present systems, with only “technical” reforms. This will eventually lead to complete failure of the old-age pension system, as occurred in the USSR. ” This would lead to a sudden and dramatic change in conditions of the elderly, bringing about poverty and chronic insecurity.” OR

2. “managed failure.” This means starting to shrinking the existing pension systems, by requiring that they operate on a balanced budget. Young people should not be told to depend on the current system, but should be encouraged to start making plans for their own retirement, by setting aside some of their current income to provide for their retirement. “For the ‘managed failure’ approach to work, one generation has to concede and make a sacrifice by paying for the pensions of the current retirees and for their own. In the absence of such a consent and solidarity, the generation to make the sacrifice would emerge spontaneously, and the process of an unexpected old-age social insurance [...]

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Constitutional Separation of Powers vs. Parliamentary Government

In this interesting recent op ed in Canada’s National Post , my George Mason colleague Frank Buckley argues that parliamentary systems of government are less likely to become dysfunctional than separation of powers systems such as that of the United States:

Before Standard and Poor’s downgraded U.S. public debt, Barack Obama mused that the American system of separation of powers might not be all that it is cracked up to be. It results in gridlock, and had raised the specter that Congress would fail to raise the debt ceiling. “We did not have a AAA political system to match our AAA credit rating,” Obama noted….

By contrast, the Canadian system of government has never seemed more attractive, if one judges these things by their results. Notwithstanding its generous social-welfare safety net, Canada is ranked as economically more free than the United States by the conservatives at the Heritage Foundation in Washington, which puts Canada in sixth, and the U.S. in 10th place, in the group’s most recent international survey. On per capita government spending, the two countries are tied, and on corporate taxes Canada is way ahead. On public debt levels, it’s no contest….

Getting legislation passed or repealed in America is like waiting for three cherries to line up in a Las Vegas slot machine. Absent a supermajority in Congress to override a presidential veto, one needs the simultaneous concurrence of the president, Senate and House.

In a parliamentary system, however, one needs only one cherry. In Canada, neither the governor-general nor the senate has a veto power. All that matters is the House of Commons, dominated by the prime minister’s party.

An American separation of powers might nevertheless be thought better able to screen off bad laws, which might more easily be enacted in a parliamentary regime. The

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President Obama versus the Constitution

President Obama today fired his opening salvo in an unprecedented attack on the Constitution of the United States. Regarding the impending Supreme Court ruling on the health control law, the President said, “Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”

His factual claims are false. His principle is a direct assault on the Constitution’s creation of an independent judicial branch as a check on constitutional violations by the other two branches.

It is certainly not “unprecedented” for the Court to overturn a law passed by “a democratically elected Congress.” The Court has done so 165 times, as of 2010. (See p. 201 of this Congressional Research Service report.)

President Obama can call legislation enacted by a vote of 219 to 212 a “strong” majority if he wishes. But there is nothing in the Constitution suggesting that a bill which garners the votes of 50.3% of the House of Representatives has such a “strong” majority that it therefore becomes exempt from judicial review. To the contrary, almost all of the 165 federal statutes which the Court has ruled unconstitutional had much larger majorities, most of them attracted votes from both Democrats and Republicans, and some of them were enacted nearly unanimously.

That the Supreme Court would declare as unconstitutional congressional “laws” which illegally violated the Constitution was one of the benefits of the Constitution, which the Constitution’s advocates used to help convince the People to ratify the Constitution. In Federalist 78, Alexander Hamilton explained why unconstitutional actions of Congress are not real laws, and why the judiciary has a duty to say so:

There is no position which depends on clearer principles, than that every

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Nearing the end of the search for the non-existent limiting principles

With the Supreme Court probably voting on the constitutionality of Obamacare (a term the President proudly embraces) on Friday, the health control law’s academic friends are diligently attempting to do what the entire United States Department of Justice could not do after two years of litigation: articulate plausible limiting principles for the individual mandate. Over at Balkinization, Neil Siegel offers Five Limiting Principles. They are:

1. The Necessary and Proper Clause. “Unlike other purchase mandates, including every hypothetical at oral argument on Tuesday, the minimum coverage provision prevents the unraveling of a market that Congress has clear authority to regulate.” This is no limitation at all. Under modern doctrine, Congress has the authority to regulate almost every market. If Congress enacts regulations that are extremely harmful to that market, such as imposing price controls (a/k/a “community rating”) or requiring sellers to sell products at far below cost to some customers (e.g., “guaranteed issue”) then the market will probably “unravel” (that is, the companies will lose so much money that they go out of business). So to prevent the companies from being destroyed, Congress forces other consumers to buy products from those companies at vastly excessive prices (e.g., $5,000 for an individual policy for a health 35-year-old whose actuarial expenditures for health care of all sorts during a year is $845).

So Siegel’s argument is really an anti-limiting principle: if Congress imposes ruinous price controls on  a market, to help favored consumers, then Congress can try to save the market’s producers by mandating that disfavored consumers buy overpriced products from those producers.

2. The Commerce Clause. “The minimum coverage provision addresses economic problems, not merely social problems that do not involve markets.” This is true, and is, as Siegel points out, a distinction from Lopez (carrying guns) and Morrison (gender-related [...]

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