Category Archives: Politics

An NSA News Sandwich

According to The Guardian, German Chancellor Angela Merkel compared the NSA’s snooping practices “with those of the Stasi, the ubiquitous and all-powerful secret police of the communist dictatorship in East Germany, where she grew up.” She is said to have done this during “an angry exchange with Barack Obama” on the phone in October. Edward Snowden had apparently revealed that the NSA was listening in on Merkel’s private cell phone conversations. She also is reported to have said that the NSA cannot be trusted with private information, as evidenced by the fact that Snowden was able to escape with so much of it.

My question for Merkel is: what if Snowden hadn’t been able to escape with that data? Would she say that ignorance is bliss? Even if Merkel is a little confused about whether to cheer the Snowden leaks, I am glad to be able to live vicariously through her having “an angry exchange” with our president.

Those who, like me, disapprove of the NSA’s spying activities will be dismayed to learn that a recent White House-sponsored review of the NSA’s activities has resulted in a recommendation that the NSA continue its programs essentially unchanged. For example, the report is said to recommend continuing the bulk data collection of Americans’ telephone metadata, without probable cause or particularized suspicion, with the only changes being (1) the level of suspicion required to conduct a search on the ginormous database, and (2) the nominal collector and storer of the data would be the telephone companies. I agree with Jim Harper of Cato that requiring the phone companies collect and store the data makes no substantial difference and, in fact, may be worse than the existing program. “Is secretly violating Americans’ communications privacy really rewarded by a policy requiring the violation of Americans’ communications privacy?” he asked.

Harper and other privacy advocates were heartened this week by a federal district judge who ruled that the NSA spying programs were likely unconstitutional. The Guardian provides access to the full text of the ruling, which is long and addresses issues of jurisdiction and standing, but I focused on the part that most interested me: the section pertaining to the third-party doctrine. The judge was conservative, as is appropriate for a district court ruling. He did not say we should get rid of the third-party doctrine, much less the “reasonable expectation of privacy” test, as I do in my recent PJ Media piece and forthcoming law review article. But he did say that he doubted whether the 1978 Supreme Court decision, Smith v. Maryland, a staple of third-party doctrine jurisprudence, could sanction the legality of the NSA’s bulk collection of telephone metadata. Cell phone use today isn’t comparable to the use of the telephone in the 1970s, and so the fact that one might not have had a “reasonable expectation of privacy” in phone metadata in the 1970s doesn’t say anything about whether one has such an expectation today.

While I wish the judge had gone further, it’s a great start and it invites judges on appeal to take a closer look at the third-party doctrine.

 

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An Executive Power News Sandwich

Speaking before the Committee on the Judiciary in the House of Representatives earlier this month, liberal law professor Jonathan Turley testified that President Barack Obama “has transformed the executive into ‘what many once called an imperial presidency model of largely unchecked authority.'” Writing for the Washington Times, James Richard Edwards describes three types of abuses about which Turley testified.

First, Obama gave a “Non-Defense Order,” refusing to defend the Defense of Marriage Act in court. Apparently this was the first time in 40 years that a president has signed such an order. Second, Turley testified, not only has President Obama contradicted his prior opposition to presidential “signing statements,” he has also used these statements in an unprecedented way. Typically, writes Edwards, the statements, which are not supposed to be binding anyway, have been used by presidents to “direct agencies how to execute and interpret the law.” Obama has, in addition, “direct[ed] agencies NOT to enforce a law or certain parts of laws.” Finally, testified Turley, Obama has expanded the use of non-enforcement orders in an unprecedented way: “Obama’s main problem,” explained Turley, “is that he does not refuse to enforce laws because he believes them to be unconstitutional. He has invoked a far broader authority to tailor laws based on his individual judgment and discretion.”

It is terrible that Obama has abused his executive authority. However, it is great to see a liberal legal academic speak out about these abuses. Let’s hope that Congress, after taking the time to hear testimony on these abuses, will finally do something about them.

While a liberal academic cautions us about Obama’s abuse of executive power, an allegedly conservative political commentator, David Brooks, writes a New York Times op-ed arguing that the executive branch doesn’t have enough power! Brooks laments that, given the gridlock in Washington, D.C., “[i]t’s possible that years will go by without the passage of a major piece of legislation.” You mean, another piece of legislation like Obamacare, Mr. Brooks? Thanks, but no thanks. Brooks says he’s also concerned that the executive lacks the “flexibility” to deal with “adjustments” that need to be made to legislation. You know, the type of legislation with pages numbering in the thousands, physically impossible for one human being to read before it’s time to vote. The lack of flexibility comes, says Brooks, because of what he calls “interest group capitalism”–lobbyists, as well as “activist groups and ideological enforcers” to which members of Congress are beholden. The way to address the problems of these “rentier groups,” as Brooks calls them, is to bypass them, by giving more power to the executive branch.

We don’t need bigger government. We need more unified authority. Take power away from the rentier groups who dominate the process. Allow people in those authorities to exercise discretion. Find a president who can both rally a majority, and execute a policy process.

But the alternative Brooks offers–Legislative stalemate vs. a stronger executive–is a false one. A third, superior option is limiting our government to its proper function: protecting individual rights–that is, protecting citizens from the initiation of physical force, and from fraud. If protecting rights was all government could do, there would not be “rentier groups” to which Congress was beholden, because Congress wouldn’t have the power to grant favors.

After reading an op-ed like that, from an alleged conservative columnist, I could use a little comic relief. Thankfully Saturday Night Live has been providing a good dose of that lately, with much of the humor being at Barack Obama’s expense. A few weeks ago, after it became clear that we would not be able to keep our plans, despite what Obama told us, SNL ran an ad for “Paxil: Second Term Strength…the antidepressant for presidents feeling low.” And last week they had a skit I particularly enjoyed, a mock panel discussion show called “How’s He Doing,” in which the “impartial” panelists made clear there was pretty much nothing Obama could do that would cause him to lose their support.

I enjoy seeing anyone do a great job mocking Obama, but it’s even more satisfying to see it done by a liberal media outlet like SNL.

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Two Spoonfuls of Sugar to Make The Budget Deal News Go Down

In my last News Sandwich, I said I was skeptical about what could be achieved, today, by convening legislators for an Article V Convention to amend the Constitution.

There is, nonetheless, a lot that state legislatures can do to protect their citizens from our rights-trampling federal government. South Carolina, for its part, is poised to end Obamacare in its state. The Daily Caller reports that the “South Carolina Freedom of Health Care Protection Act” has already passed in the South Carolina House of Representatives, and is likely to pass in the GOP-controlled state Senate in January. The legislation contains several key provisions designed to counteract all effects of Obamacare, including a state income tax credit for any Obamacare fine paid, as well as a provision prohibiting any insurance company receiving Obamacare subsidies from operating in the state. The Caller’s Bruce Parker speculates that, should the bill be enacted and upheld as within the state’s power, which seems likely, South Carolina could serve as an example for other states eager to protect their citizens from the onerous burden of this unpopular legislation. Read more here.

I think we’d best focus on the good news coming out of state legislatures for a while. It seems that the House GOP–which many of us had hoped would use its power of the purse to keep the growth of government and spending in check–has agreed to a deal that former OMB director David Stockman describes as “the final surrender of the House Republican leadership.” The House “leadership” apparently agreed with the rest of the statists in Washington that even the modest “sequester” spending cuts were too much for them to stomach. Instead, says the Washington Post, we’ll get “roughly $63 billion in other policies, including fee increases for airline travelers, cuts to federal-worker and military pensions and higher payments for federal insurance of private pensions,” etc. Senators Ted Cruz and Rand Paul have come out against the deal, and even Mitch McConnell–no doubt in a desperate effort to save his seat–has said he’d vote against it. But all of that is just showboating with a Democratic majority in the Senate. David Stockman says that what this budget agreement means, practically speaking, is that there won’t be another opportunity to significantly reduce spending until 2020.

After that depressing bit of news, we may all need a bit of retail therapy (assuming we can still afford it). A trip to the mall is normally the best way to get instant gratification, but that may change in the not-too-distant future. In an earlier News Sandwich I discussed Jeff Bezos’s plans to use drone technology to deliver Amazon.com orders in as little as 30 minutes. According to the Wall Street Journal, DHL is also testing its own version of a speedy drone delivery service, increasing the chances that we will eventually get to see, with our own eyes, little flying robots delivering packages to our door. Drone deliveries, however, as we learned from Bezos, won’t be a reality for at least a few years, thanks to our federal government prohibiting any for-profit use of drones until the FAA gets around to writing the “necessary regulations.”

In the meantime, the Wall Street Journal reports that some retailers (Home Depot, Amazon, and eBay among them) are planning to expand their offerings of same-day deliveries. No, not 30-minute deliveries, and no, not carried by cute flying robots, but deliveries of wanted and needed items within a matter of hours. I am often amazed and grateful that companies are continuing to find ways, even in this dreadful economy, to make money by improving their services (and our lives).

According to the Wall Street Journal piece some of these companies, along with FedEx and UPS, are betting that, once you have same-day delivery service available, there won’t be much value added by offering a 30-minute delivery service. My advice to them: ignore the flying-robot-cuteness-factor at your peril.

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