Archive for the Freedom Category

Peter Berkowitz

Reconsidering the Arab Spring

President Obama entered the White House determined to overcome what he and his supporters regarded as the Bush administration’s poisonous legacy in the Middle East. And yet, though loath to acknowledge it, since the advent of the Arab Spring in Tunisia in December 2010 and January 2011 and its rapid spread throughout the region, the Obama administration has been struggling to formulate and implement its own version of the Bush Doctrine, according to which it is in the interest of the United States to promote freedom and democracy in the Arab world.

This unacknowledged reversal came at a time in which the president’s major policy initiatives in the Middle East were in disarray, in significant measure because they were ill-conceived and clumsily executed. Touting engagement with the Iranians, Obama’s smart diplomacy went nowhere. Tehran mocked him, flouting deadline after deadline set by the president for ensuring that Iran’s nuclear program was limited to civilian purposes by subjecting it to international supervision. And while the United States was reduced to silently observing the carnage, Iran brutally suppressed large public demonstrations against the corrupt presidential elections of June 2009. Having lost two years in fruitless efforts to sweet talk the Iranians, the Obama administration has over the last year expanded and intensified sanctions imposed by the Bush administration. By the president’s own secretary of defense’s estimates, Iran is on a path to developing the capacity to make a nuclear weapon within a year.

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Laura Huggins

The big brown trout I was fishing for yesterday on the Limay River in Patagonia was nowhere to be found but I did manage to come across an old hang out of Butch Cassidy.

Being from Montana, where the Hole-in-the-Wall Gang pulled off their last job—a holdup of a Union Pacific train—before fleeing to South America, I was happy with this historical catch.

Legend has it that Butch became friends with Jarred Jones who ventured down to Argentina from Texas in 1887 to make his fortune. Jones didn’t find gold but he did manage to open a general storeat the mouth of the Limay. The old store, which is now a friendly restaurant, still holds the shops books, old photos, and a frontier atmosphere of a century ago.

Jones earned enough money at the store to purchase two big ranches, which he fenced off with barbed wire—the first to be seen around these parts. Today, barbed wire is strung across much of the 98 million hectares of the Patagonian Steppe to enclose vast quantities of sheep.

Unfortunately, a flock of sheep can gobble up great expanses of native grasses, and in southern Argentina, they’re clearing some serious vegetation. In addition to vegetation loss, overgrazing equates to lost habitat for other animals, and damages waterways with runoff and silt from erosion, which affects the fish, which affects tourism.

Continue reading Laura Huggins…

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Richard Epstein

By now everyone knows that the Supreme Court will take up the watershed case of this century, when it examines the constitutionality of the Patient Protection and Affordable Care Act—the ACA or ObamaCare to both the friends and enemies of the Act. I have coauthored with Mario Loyola of the Texas Public Policy Foundation a brief that sets out our case against the constitutionality of the Act.  I have also written elsewhere about the complex historical evolution of the commerce clause.

I am relieved to learn, after all, that the case against the individual mandate is so trivial that three eminent legal authorities, Jeffrey ToobinLinda Greenhouse and Dahlia Lithwick, found it easy to put me out of my intellectual misery by announcing that the act is manifestly constitutional on the indubitable authority of Wickard v. Filburn, which in their view has become the constitutional pillar of a boundless federal power.  Indeed, their collective wisdom is such that the case for the constitutionality of ObamaCare is so self-evident that only dark political motives can account for the willingness to overturn a statute whose impeccable social credentials make it the culmination of a long overdue reform movement.

Let me confess to be one of the unpersuadables.  There is of course a powerful correlation between those who praise ObamaCare and embrace its constitutionality.  There is none of the typical posturing which says that we’ll leave it to Congress to deal with the wisdom of the laws while we merely determine their constitutionality.  However on this question, turnabout is fair play, for we should look at the wisdom of statutes, or their lack thereof,  in order to orient ourselves with respect to their constitutionality.

Start with Wickard, which in soothing terms had as its objective the “stabilization” of agricultural markets under the Agricultural Adjustment Acts, by allowing the government to even out prices during good times and bad.  All that is a polite way of saying that the government should get into the business of organizing agricultural cartels, which can then reduce output by burning excess crops or forcing land to remain idle in order to reduce supply. At the other end of these cartels lie consumers, who suffer manifestly from the high prices and reduced supply that made it all the harder for them to weather the 1930s depression.  Roscoe Filburn was a cartel-breaker because he sought to escape the regulation and increase supply by feeding his own grain to his own cows.

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Richard Epstein

This week, the United States Supreme Court has on its plate the defining legal issue of our time—the constitutionality of the Patient Protection and Affordable Care Act (ACA), which I have already commented on from a doctrinal and historical perspective. In this column, I will show how fatal defects in Obamacare’s structure undermine the constitutional case for key provisions found in Title I of the law (“Quality, Affordable Health Care for All Americans”), which regulates the private insurance market.

For openers, the ACA is subject to the law of unintended consequences. The law may proclaim that it protects patients when it in fact it restricts the health-care options of those it’s intended to protect. The ACA says that it will increase access to affordable care when in fact its endless mandates will drive up the cost of care. The false advertising of the ACA’s title conceals a wealth of difficulties with its internal design, which make its scheme unsustainable in the long run.

One unfortunate byproduct of the obsessive emphasis on the individual mandate—the requirement to have health-care insurance or pay a fine—is that it diverts attention away from the many other unsound provisions of the law. The Supreme Court need not fear that striking down Title I of the ACA will deny Americans needed health care. Rather, its implementation will have that effect.

Continue reading Richard Epstein…

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Stewart Baker

REAL ID-Back from the Dead?

I testified a few days ago at a House Judiciary subcommittee hearing on REAL ID implementation.  I expected to have harsh things to say about the way REAL ID has been handled by the National Governors Association and the Obama administration. And there was certainly plenty to criticize.  But what surprised me after a few years away from the issue is how much progress has been made, almost reluctantly, by all parties.  Much more secure identification is now within reach, though politics may delay the final steps much too long.  Here’s some of what I told the subcommittee:

Unfortunately, not everyone agrees with the need for better drivers’ license security. Opposition to REAL ID unites the nations’ governors and the ACLU. As a candidate, President Obama campaigned against REAL ID. And as a governor, Secretary Napolitano did the same. So it was no surprise that the Obama administration supported repeal of REAL ID and adoption of a softer approach, called PASS ID. Expecting PASS ID to be adopted, the administration soft-pedaled the states’ obligations under REAL ID.

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Richard Epstein

City Planners Run Amok

The Upper West Side (UWS) of New York City operates in a moral and political universe different from my own. Currently, its confident progressive worldview has precipitated a major land use controversy. On the urging of the UWS “community” and its elected officials, the City’s Department of Planning has endorsed this modest proposal “for new or expanding establishments” on Broadway, Columbus, and Amsterdam avenues. These are major commercial streets, yet the proposal seeks to limit store frontage on them to forty feet for general retail and twenty-five feet for banks.

The proposal earns its “modest” label, because, as the Planning Department confidently notes, the rule would not limit the overall size of the business, the configuration of its interior space, or its kind of operations. Still, many businesses and banks currently exceed the proposal’s limit, often by multiples of four and five.

The locals insist that this regulation is needed to preserve the distinctive character of the neighborhood from large banks and major retail chains, which gobble up valuable frontage in ways that drive out small local businesses. The UWS is said to be “largely unique” because the space available for commercial use is limited relative to the population density, driving rents up. The supporters of the bill are determined to protect the “mom-and-pop” stores from unapologetic corporate behemoths. The local community board has unanimously approved this proposal over the vocal opposition of the City’s commercial real estate interests and passage now awaits approval by the City Council and then the Mayor. Let’s hope it doesn’t happen.

Continue reading Richard Epstein…

(photo credit: India Amos)

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Thomas Sowell

Race and Rhetoric

One of the things that turned up, during a long-overdue cleanup of my office, was an old yellowed copy of the New York Times dated July 24, 1992. One of the front-page headlines said: "White-Black Disparity in Income Narrowed in 80′s, Census Shows."

The 1980s? Wasn’t that the years of the Reagan administration, the "decade of greed," the era of "neglect" of the poor and minorities, if not "covert racism"?

More recently, during the administration of America’s first black president, a 2011 report from the Pew Research Center has the headline, "Wealth Gaps Rise to Record Highs Between Whites, Blacks and Hispanics."

While the median net worth of whites was ten times the median net worth of blacks in 1988, the last year of the Reagan administration, the ratio was nineteen to one in 2009, the first year of the Obama administration. With Hispanics, the ratio was eight to one in 1988 and fifteen to one in 2009.

Race is just one of the areas in which the rhetoric and the reality often go in opposite directions. Political rhetoric is intended to do one thing — win votes. Whether the policies that accompany that rhetoric make people better off or worse off is far less of a concern to politicians, if any concern at all.

Democrats receive the overwhelming bulk of the black vote by rhetoric and by presenting what they have done as the big reason that blacks have advanced. So long as most blacks and whites alike mistake rhetoric for reality, this political game can go on.

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Jack Goldsmith

Fire When Ready

Instead of convincing critics, Attorney General Holder’s defense of the Obama administration’s targeted killing policy earlier this month seems to have emboldened them. "The idea that the executive branch can be judge, jury, and executioner … totally undoes the system of checks and balances," charged American Civil Liberties Union (ACLU) Executive Director Anthony Romero after Holder’s talk at Northwestern University’s law school. Romero and others have been especially scathing about the lawlessness of last fall’s drone killing in Yemen of U.S. citizen and al Qaeda affiliate leader Anwar al-Awlaki.

In this new age of drone warfare, probing the constitutional legitimacy of targeted killings has never been more vital. The Obama administration has carried out well over 200 drone strikes in its first three years, and the practice promises to ramp up even more in the next few years as the United States decreases its footprint in Afghanistan and relies even more heavily on special operations and covert actions centered around the use of drones. There are contested legal issues surrounding drone strikes, and — in contrast to issues like military detention and military commissions — courts have not pushed back against the presidency on this issue. But judicial review is not the only constitutional check on the presidency, especially during war. Awlaki’s killing and others like it have solid legal support and are embedded in an unprecedentedly robust system of legal and political accountability that includes courts but also includes other institutions and actors as well.

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Fouad Ajami

Fouad Ajami on CNN

The relevant portion begins at about the 4:15 mark.

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