14 May 2010

Today’s Tabbloid
PERSONAL NEWS FOR lgn@limitedgovernmentnetwork.com

FISCALLY CONSERVATIVE BLOG FEEDS anyone disagreeing with that.

Kerry-Lieberman Look to Concerning both the welfare state and terrorism, Jason points to
“remedies” at the far end of the problem. He writes, for example, that our
Revisit Energy Tax and Cap- welfare state is going broke anyway, and “compared to the damage being
done by native-born U.S. citizens and their cursedly long lifespans, the
and-Trade Scheme [Americans immigrants’ overall effects are quite small.” (I won’t take that “cursedly
long lifespan” point personally.) True, but in places where the welfare
for Tax Reform] state issues are concentrated, like border-state emergency rooms and
MAY 13, 2010 04:22P.M. schools, that long-term national perspective isn’t the issue. Yes, getting
the government out of health care and education might ameliorate those
Americans for Tax Reform opposes Sens. John Kerry (D-Mass.) and Joe localized problems (that question’s for another day), but we can’t always
Lieberman’s (I-Conn.) energy bill, The American Power Act, which looks wait for more remote problems to be solved before we address more
to curb greenhouse gas emissions by implementing an ... immediate ones.

And that goes for Jason’s terrorism point, too. He writes: “Without the
black market in drugs, we’d have a lot less to fear from terrorists,
FISCALLY CONSERVATIVE BLOG FEEDS particularly on our southern border.” I’m all for legalizing recreational
drugs. But I was alluding to Islamic terrorists, not narco-terrorists, when
Immigration II: On the I spoke of getting control of our borders. Legalizing drugs (again, a more
remote remedy) might have some effect on the coffers of Islamic
Substance of the Matter [Cato at terrorists, but it would hardly solve the terrorism problem. As long as
that problem exists, we need border control. Let’s remember, for
Liberty] example, that it was an alert border agent who thwarted the would-be
MAY 13, 2010 03:43P.M. LAX bomber.

By Roger Pilon

Responding to my immigration post this morning, my colleagues Dan FISCALLY CONSERVATIVE BLOG FEEDS
Griswold and Jason Kuznicki have focused on the single short paragraph
that touched on the substance of the matter. (The question before me, South Carolina Pledge Breakers
posed by Politico Arena, concerned mainly the political implications of
the new Arizona law, given the latest Pew Research Center poll on the Override Sanford’s Veto
issue.) I quite agree with both that we’ve never had full control of our
southern border (or any border, for that matter), but as Dan has noted [Americans for Tax Reform]
elsewhere, when we had a guest-worker program in place, illegal MAY 13, 2010 01:59P.M.
immigration dropped by 95 percent – no small drop. And illegal, not
legal, immigration is the issue before us. And Dan is right too that we’ve Yesterday the South Carolina House overrode Governor Sanford’s veto
thrown a lot of enforcement at the problem in recent years, to limited on House Bill 3584, legislation which would increase the tax on
avail, so it’s not true that Congress hasn’t done anything. What it has cigarettes by more than 700%. Sanford’s veto was over...
done, however, hasn’t addressed the real problem, the underlying
substantive law, as Dan has often written.

I’m struck, though, by Jason’s unqualified comment that he can’t say he

shares my views on immigration.” Really? I did say, I believe, that
Congress needs to address the problem, including with a guest-worker
program. And I also said that “It hardly needs saying that a welfare state,
in the age of terrorism, cannot have open borders.” I can’t imagine

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Today’s Tabbloid PERSONAL NEWS FOR lgn@limitedgovernmentnetwork.com 14 May 2010

FISCALLY CONSERVATIVE BLOG FEEDS FISCALLY CONSERVATIVE BLOG FEEDS

The Path to Prosperity: Tonight Ask Kagan about ObamaCare

On The Kudlow Report [Larry [Cato at Liberty]
MAY 13, 2010 12:57P.M.
Kudlow’s Money Politic$]
MAY 13, 2010 01:27P.M. By Michael F. Cannon

Senate Judiciary Committee members should be sure to ask Solicitor

General and Supreme Court nominee Elena Kagan, during her upcoming
confirmation hearings, whether she or her office played any part in
crafting ObamaCare or the administration’s defense to the lawsuits
challenging that law. If Kagan helped to craft either, that would present a
conflict of interest: when those lawsuits reach the Supreme Court, she
would be sitting in judgment over a case in which she had already taken
sides.

Though the Solicitor General deals with appellate matters, it is certainly

possible that Kagan was consulted during the drafting of the law or the
Tonight at 7pm ET: administration’s legal strategy for defending it.

Please join us this evening as we welcome two wise men from Wall Street
... Home Depot co-founder Ken Langone and former New York Stock
Exchange chairman Dick Grasso.
Topics will include the government’s assault on banks, the fiscal
breakdown, gold rally, taxes, mid-term elections (is political regime
change coming?) and what really went wrong during last week’s stock
market drop.
Please join us. The Kudlow Report. 7pm ET. CNBC.
FISCALLY CONSERVATIVE BLOG FEEDS
The FCC: Your Cell Phone
Nanny [Americans for Tax
Reform]
MAY 13, 2010 12:59P.M.
In the government’s latest effort to emulate the European Union and
maternally cradle individuals to the greatest extent possible, the Federal
Communications Commission wants to mandate that ce...
The Senate Democrats who drafted ObamaCare took pains to protect it
from a constitutional challenge. The law contains several pages of
findings designed to show that the Constitution’s commerce clause
authorizes congress to force Americans to purchase health insurance. It
would have been prudent for Senate Democrats to ask the government’s
top appellate lawyer, who belongs to the same political party, whether
they had done all they could to protect the “individual mandate” from a
constitutional challenge.
Opponents began filing legal challenges to ObamaCare just minutes after
President Obama signed it into law, and seven weeks before he
announced Kagan’s nomination. On Tuesday, the Obama administration
filed its first response, to a private lawsuit. According to the Associated
Press, that filing “is to be followed in coming weeks and months by
federal government court responses to lawsuits filed by many states.”
Regarding the case filed by 13 (soon to be 20) state attorneys
general, The New York Times reports, “Some legal scholars, including
some who normally lean to the left, believe the states have identified the
law’s weak spot and devised a credible theory for eviscerating it.” It is not
certain, but it is certainly possible that the Office of the Solicitor General
was consulted on the government’s response to lawsuits that would likely
reach the Supreme Court.
If Kagan played a role in drafting ObamaCare or formulating the
administration’s legal defense, and is confirmed by the Senate, propriety
would dictate that she recuse herself from any challenges to that law that
reach the high court. Supporters and opponents alike should be
interested to know whether the Court will judge ObamaCare with nine
justices on the bench, or eight.

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FISCALLY CONSERVATIVE BLOG FEEDS
The Wall Street Journal’s
Surveillance Fantasies [Cato at
Liberty]
MAY 13, 2010 12:55P.M.
By Julian Sanchez
There are too few periodical venues for good short fiction these days, so
I’d normally be enthusiastic about the Wall Street Journal’s decision to
print works of fantasy. Unfortunately, they’ve opted to do so on their
editorial page—starting with a long farrago of hypotheticals concerning
the putative role of the Foreign Intelligence Surveillance Court in
hindering the detection and apprehension of failed Times Square
bomber Faisal Shahzad. In fairness to the editors, they acknowledge near
the end of the piece that much of it is unvarnished speculation, but their
flights of creative fancy extend to many claims presented as fact.
Let’s begin with the acknowledged fiction. The Journal editors wonder
whether Shahzad might have been under surveillance before his botched
Times Square attack, and posit that the NSA might have intercepted
communications from “Waziristan Taliban talking about ‘our American
brother Faisal,’ which could have been cross-referenced against Karachi
flight manifests,” or “maybe Shahzad traded seemingly innocuous emails
with Pakistani terrorists, and minimization precluded analysts from
detecting a pattern.” Anything is possible. But it’s a leap to make this
inference merely because investigators appear to have had fairly specific
knowledge about his contacts with terrorists after he had already been
identified. They would not have needed to “retroactively to reconstruct
his activities from other already-gathered foreign wiretaps:” Once they
had zeroed in on Shahzad, his calling patterns could have been
reconstructed from phone company calling records whether or not he or
his confederates were being targeted at the time the communications
occurred, and indeed, those records could have been obtained by means
of a National Security Letter without any oversight from the FISA Court.
This is part of a more general strategy we often see deployed by
advocates of expanded surveillance powers. After the fact, one can
always tell a story about how a known terrorist might have been detected
by means of more unfettered spying authority, just as one can always tell
a story about how any particular calamity would have been averted if the
right sort of regulation were in place. Sometimes the story is even
plausible. But if we look at the history of recent intelligence failures, it’s
almost invariably the case that the real problem was the inability to
connect the right set of data points from the flood of data already
obtained, not insufficient ability to collect. The problem is that it’s easy
and satisfying to call for legislation lifting the restraints on
surveillance—and lifting still more when intelligence agencies fail to
exhibit perfect clairvoyance—but difficult if not impossible, certainly for
those of us without high-level clearances, to say anything useful about
the internal process reforms that might help make better use of existing
data. The pundit in me empathizes, but these just-so stories are a poor
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14 May 2010
rationale for further diluting civil liberties protections.
Let’s move on to the unacknowledged fictions, of which there are many.
Perhaps most stunning is the claim that “U.S. intelligence-gathering
capability has been substantially curtailed in stages over the last decade.”
They mean, one supposes, that Congress ultimately imposed a patina of
judicial oversight on the lawless program of warrantless wiretapping and
data program authorized by the Bush administration in the aftermath of
the 9/11 attacks. But the claim that somehow intelligence gathering is
more constrained now than it was in 2000 just doesn’t pass the straight
face test. In addition to the radical expansion of the aforementioned
National Security Letter authorities, Congress approved roving wiretaps
for domestic intelligence, broad FISA orders for the production of “any
tangible thing,” so-called “sneak and peek” searches, looser restraints on
existing FISA wiretap powers, and finally, with the FISA Amendments
Act of 2008, executive power to authorize broad “programs” of
surveillance without specified targets. In a handful of cases, legislators
have rolled back slightly their initial grants of power or imposed some
restraints on powers the executive arrogated to itself, but it is ludicrous
to deny that the net trend over the decade has been toward more, rather
than less, intelligence-gathering capability.
Speaking of executive arrogation of power, here’s how the Journal
describes Bush’s warrantless Stellar Wind program:
Via executive order after 9/11, the Bush Administration
created the covert Terrorist Surveillance Program. TSP
allowed the National Security Agency to monitor the traffic
and content of terrorist electronic communications overseas,
unencumbered by FISA warrants even if one of the parties
was in the U.S.
This is misleading. There was no such thing as the “Terrorist
Surveillance Program.” That was a marketing term concocted after the
fact to allow administration officials to narrowly discuss the components
of Stellar Wind initially disclosed by the New York Times. It allowed
Alberto Gonzales to claim that there had been no serious internal dissent
about the legality of “the program” by arbitrarily redefining it to exclude
the parts that had caused the most controversy, such as the vast data
mining effort that went far beyond suspected terrorists. It was this aspect
of Stellar Wind, and not the monitoring of overseas communication, that
occasioned the now-infamous confrontation at Attorney General John
Ashcroft’s hospital bed described in the editorial’s subsequent
paragraph. We continue:
In addition to excessive delays, the anonymous FISA judges
demanded warrants even for foreign-to-foreign calls that
were routed through U.S. switching networks. FISA was
written in an analog era and meant to apply to domestic
wiretaps in the context of the Cold War, not to limit what
wiretaps were ever allowed.
Forgive me if I’m a broken record on this, but the persistence of the
claim in that first sentence above is truly maddening. It is false that
“FISA judges demanded warrants even for foreign-to-foreign calls that
Today’s Tabbloid PERSONAL NEWS FOR lgn@limitedgovernmentnetwork.com
were routed through U.S. switching networks.” Anyone remotely familiar
with the FISA law would have known it was false when it was first
bandied about, and a Justice Department official confirmed that it was
false two years ago. FISA has never required a warrant for foreign-to-
foreign wire communications, wherever intercepted, though there was a
narrower problem with some e-mail traffic. To repeat the canard at this
late date betrays either dishonesty or disqualifying ignorance of
elementary facts. Further, while it’s true that a great deal of surveillance
has always, by design, remained beyond the scope of FISA, it is clearly
false that it was “meant to apply to domestic wiretaps” if by this we mean
only “wiretaps where all parties to the communication are within the
United States.” The plain text and legislative history of the law make it
clear beyond any possible doubt that Congress meant to impose
restraints on the acquisition of all U.S.-to-foreign wire communications,
as well as radio communications targeting U.S. persons. (The legislative
history further suggests that they had hoped to tighten up the restraints
on radio communications, though technical considerations made it
difficult to craft functional rules.) We continue:
The 2008 FISA law mandates “minimization” procedures to
avoid targeting the communications of U.S. citizens or those
that take place entirely within the U.S. As the NSA dragnet
searches emails, mobile phone calls and the like, often it will
pick up domestic information. Intelligence officials can
analyze, retain and act on true smoking guns. But domestic
intercepts must be effectively destroyed within 72 hours
unless they indicate “a threat of death or serious bodily harm
to any person” or constitute “evidence of a crime which has
been, is being, or is about to be committed and that is to be
retained or disseminated for law enforcement purposes.”
This means that potentially useful information must be
discarded if it is too vague to obtain a traditional judicial
warrant. Minimization is the FISA equivalent of a fishing
license that requires throwing back catches that don’t meet
the legal limit. Yet the nature of intelligence analysis is
connecting small, suggestive and often scattered clues.
The kernel of truth here is that the FISA Amendments Act did impose
some new constraints on the surveillance of Americans abroad. But the
implication that “minimization” is some novel invention is just false.
Minimization rules have always been part of FISA, and they exist
precisely because the initial scope of FISA acquisition is so incredibly
broad. And those minimization rules give investigators enormous
latitude. As the FISA Court itself explained in a rare published ruling:
Minimization is required only if the information “could not
be” foreign intelligence. Thus, it is obvious that the standard
for retention of FISA-acquired information is weighted
heavily in favor of the government.
Similarly, the redaction of identifying information about U.S. persons is
not required when that information is needed to properly interpret the
intelligence, so the idea that analysts would have scrubbed mention of
“our American brother Faisal” from an intercept of Taliban
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14 May 2010
communications cannot be taken too seriously. It’s not entirely clear
what the editors are referring to when they say “domestic intercepts
must be effectively destroyed within 72 hours:” Do they mean
“inadvertent” intercepts of entirely domestic communications, or one-
end domestic communications legitimately acquired under the FAA, or
what? Either way, that’s not really consistent with what we know about
FISA minimization in practice: At least as of 2005, it appears that
“minimized” communications were at least sometimes retained in
ultimately retrievable form, though not logged. In any event, if I’m
reading them correctly, the Journal is suggesting that NSA should be
broadly sweeping up and retaining even the apparently innocent
domestic communications of Americans, on the off chance that they
might later prove useful? I can imagine being that consumed by terror,
but I think I would be ashamed to admit it in public. Moving on:
Meanwhile, the FISA court reported in April that the number
of warrant applications fell to 1,376 in 2009, the lowest level
since 2003. A change in quantity doesn’t necessarily mean a
change in intelligence quality—though it might.
As it happens, I covered this in a post just the other day. As a Justice
Department official explained to the bloggers at Main Justice, the
numerical decline is “due to significant changes in the legal authorities
that govern FISA surveillance — specifically, the enactment of the FISA
Amendments Act in 2008 — and shifting operational demands, but the
fluctuation in the number of applications does not in any way reflect a
change in coverage.” Finally:
These constraints are being imposed at the same time that
domestic terror plots linked to, or inspired by, foreigners are
increasing. Our spooks did manage to pre-empt Najibullah
Zazi and his co-conspirators in a plot to bomb New York
subways, but they missed Shahzad and Nidal Hasan, as well
as Umar Farouk Abdulmutallab’s attempt to bring down
Flight 253 on Christmas Day.
Abdulmutallab was a non-U.S. person who didn’t set foot in the country
until after setting his underpants aflame; there is no reason whatever to
believe that FISA restrictions would have posed an obstacle to
monitoring him. As for Nidal Hasan, investigators did intercept his e-
mails with radical cleric Anwar al Awlaki. While it seems clear in
retrospect that the decision not to investigate further was an error in
judgment, they were obviously not destroyed after the fact, since they
were later quoted in various press accounts. Maybe those exchanges
really did seem legitimately related to Hasan’s research at the time, or
maybe investigators missed some red flags. Either way, the part of the
process the Journal is wringing its hands about worked: The intercepts
were retained and disseminated to the Joint Terrorism Task Force,
which concluded that Hasan was “not involved in terrorist activities or
terrorist planning” and, along with Army officials, declined to open an
investigation. Rending already gossamer-thin minimization
requirements is not going to avoid errors of that sort.
The Journal closes out their fantasy by melodramatically asking
“whether FISA is in practice giving jihadists a license to kill.” But the
Today’s Tabbloid PERSONAL NEWS FOR lgn@limitedgovernmentnetwork.com
only “license” I see here is of the “creative” variety; should they revisit
the topic in the future, the editors might consider taking less of it.
FISCALLY CONSERVATIVE BLOG FEEDS
A Response to Jonathan Gruber
on ObamaCare & Health Care
Costs [Cato at Liberty]
MAY 13, 2010 12:25P.M.
By Michael F. Cannon
In this week’s New England Journal of Medicine, MIT health economist
and Obama administration consultant Jonathan Gruber responds to
claims that ObamaCare will increase health care costs. Gruber
acknowledges the Obama administration’s estimates that ObamaCare
will increase health care spending, but compares that to the
administration’s estimate that 34 million otherwise uninsured U.S.
residents will obtain coverage under the law:
[B]y 2019, the United States will be spending $46 billion
more on medical care than we do today. In 2010 dollars, this
amounts to only $800 per newly insured person —
quite a low cost as compared (for example) with the $5,000
average single premium for employer-sponsored insurance.
What a bargain! Of course, Gruber is being sneaky. The cost per newly
insured person is not $800. It will be higher than $5,000. But only $800
of that cost will appear as new health care spending. The rest of that cost
will be borne largely by people who already had coverage, but find their
access to care reduced. These include Medicare enrollees who will
receive fewer benefits through (or who will be ousted from) their private
Medicare plans; Medicare enrollees who will have a harder time
accessing care because some hospitals, skilled nursing facilities, home
health agencies and other providers “might end their participation in the
program,” according to the Obama administration; and maybe even
some (currently) privately insured people who find themselves in
Medicaid. (The administration itself says it is “probable” that
ObamaCare “could result…in some of this demand being unsatisfied.”)
Other costs include the economic growth and opportunity that is
destroyed by ObamaCare’s tax increases, and the costs associated with
trapping workers in low-wage jobs.
And that’s if everything goes as planned. Gruber remains convinced that
future Congresses will not undo ObamaCare’s tax increases or downward
adjustments to Medicare’s price controls, as Congress has consistently
undone scheduled reductions in the prices that Medicare pays
physicians. Gruber’s sometime employer — the Obama administration —
itself contradicts his argument when it writes that the bulk of those
reductions in Medicare spending are “doubtful” and “unrealistic.”
Gruber inadvertently shows why critics are right to be skeptical about the
5
14 May 2010
tax increases and spending reductions when he writes:
The cuts in spending and increases in taxes are
actually “back-loaded,” with the revenue increases
rising faster over time than the spending increases,
so that this legislation improves our nation’s fiscal health
more and more over time.
The fact that the austerity measures had to be backloaded is a sign of
their implausibility. If they were popular, they could take full effect
tomorrow. But their implementation had to be delayed to head off
significant political resistance — resistance that will express itself
between now and when those austerity measures take effect.
On the broader issue of reducing the growth of health care spending,
Gruber claims that ObamaCare “cautiously pursue[s] many different
approaches toward cost control and stud[ies] them to see which ones
work best.” Yet each approach is all but guaranteed to fail. The tax on
high-cost health plans? Unlikely to survive. (But at least Gruber now
admits it is a tax.) The rationing board designed to curtail each
congresscritter’s ability to keep the money flowing to health care
providers in their districts? Also unlikely to survive, for obvious reasons.
Pilot programs experimenting with different government price and
exchange controls? Even successful pilot programs get nixed.
Comparative-effectiveness research? A pipe dream that fails every time
the government tries it.
To the extent that these spending cuts fail to materialize, health care
spending will rise, and deficits will deepen. Congress will need to impose
additional tax increases, and/or find sneakier ways to ration medical
care curb health care spending. Gruber’s Massachusetts enacted
ObamaCare four years ago, and that’s exactly what state officials are
doing.
Since President Obama signed this law, the Congressional Budget Office
has announced that its cost, including the so-called “doc fix”
and spending subject to appropriations, is already about $200 billion
higher than previously believed. As I’ve written elsewhere:
ObamaCare would create new constituencies for government
spending, hook existing constituencies on even more
government spending, and promise implausible cuts in
existing subsidies to constituencies that are highly organized
and vocal.
Gruber gets chutzpah points for arguing that the same law would actually
contain health care costs.
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FISCALLY CONSERVATIVE BLOG FEEDS FISCALLY CONSERVATIVE BLOG FEEDS

England Is the New France My First Appearance on The

[Cato at Liberty] Daily Show [Cato at Liberty]
MAY 13, 2010 12:11P.M. MAY 13, 2010 11:48A.M.

By Daniel J. Mitchell By Michael F. Cannon

The chart below shows everything you need to know about why the It’s about 3:43 into this Louis Black segment. I think my expression is …
United Kingdom is a fiscal disaster. Over the past 10 years, the burden of appropriate.
government spending has skyrocketed from 36.6 percent of GDP to more
than 53 percent of GDP. Taxes, meanwhile, have remained largely The Daily Show With Jon Stewart Mon – Thurs 11p / 10c Back in Black
unchanged, averaging about 40 percent of GDP. – Glenn Beck’s Nazi Tourette’s www.thedailyshow.com Daily Show
Full Episodes Political Humor Tea Party
Since the OECD numbers show that the fiscal crisis in the U.K. is solely
the result of a bloated public sector, the obvious solution is … you
guessed it, higher taxes.
FISCALLY CONSERVATIVE BLOG FEEDS
David Cameron’s new coalition government has announced support for a
higher capital gains tax and is signalling that this will be followed by an Club PAC: On Refunds, Crist
increase in the value-added tax.
“Even Worse Than Specter”
There are some proposals to curtail the growth of spending, including
some pay cuts for Prime Minster Cameron and other political figures, but [The Club for Growth“Even
I will be very surprised if those amount to more than window dressing.
The United Kingdom, I fear, has gone past the point of no return in the Worse Than Specter”]
journey toward becoming indistinguishable from the decrepit welfare MAY 13, 2010 11:40A.M.
states so common in the rest of Europe.
WASHINGTON S COMMITTEE. 202-955-5500.

FISCALLY CONSERVATIVE BLOG FEEDS

Bob Bennett Can’t Handle the

Truth [The Club for Growth]
MAY 13, 2010 11:32A.M.

Over at The Corner, Robert Costa recounts an interview with soon-to-be-

ex Utah Senator Bob Bennett. ll be one less come January.

6
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FISCALLY CONSERVATIVE BLOG FEEDS
Now International Curriculum
Standards? [Cato at Liberty]
MAY 13, 2010 11:23A.M.
By Neal McCluskey
Mark Schneider, a former National Center for Education Statistics
commissioner and current American Enterprise Institute scholar, has
put together a very insightful — and disturbing — four-part blog series
on the oft-cited Programme for International Student Assessment (PISA)
and its creator, the Organization for Economic Cooperation and
Development. Basically, Schneider writes, the much-hyped PISA figures
very prominently in the “international benchmarking” of coming
national curriculum standards — which the Obama Administration
is coercing states to adopt — despite the paucity of meaningful evidence
that doing well on PISA actually translates into desirable educational
outcomes.
Now, Schneider throws out some debatable stuff himself. For instance,
he emphasizes early-grade progress on the federal, National
Asessessment of Educational Progress while ignoring utterly flat results
for 17-year-olds. He also reiterates several things that I have already
pointed out in “Behind the Curtain: Assessing the Case for National
Curiculum Standards.” Still, his points overall are generally very fresh,
and very important. It is also heartening to see growing critiques, even if
somewhat oblique, of the national standards that many on the left and
right are hoping to impose on us in the coming months.
FISCALLY CONSERVATIVE BLOG FEEDS
Let’s Get Serious about
Immigration Reform [Cato at
Liberty]
MAY 13, 2010 11:12A.M.
By Daniel Griswold
The controversy over America’s immigration policy does not allow for
easy answers, as the post below by Roger Pilon demonstrates. Even
among those of us who advocate limited government and free markets,
there is room for debate about what our immigration policy should be
and the order in which needed reforms should be pursued.
Roger gives a welcome nod to the argument for “a serious guest-worker
program,” which I’ve argued is essential to any successful reform effort.
He also acknowledges that its implementation should be in concert with
serious enforcement rather than delayed indefinitely by demands that we
“control the border first.”
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14 May 2010
One place where I differ with my dear colleague is in his assertion that:
“We no longer control our southern border, and Congress seems unable
or unwilling to do anything about it.”
I’m not sure there ever was a time, at least in recent decades, that the
U.S. government exerted “control” over the southern border in the sense
that illegal entry was largely prevented. Sealing a 2,000-mile border
remains a daunting challenge to those who advocate it.
If anything, our border with Mexico is more under control today than at
any time in recent years. According to estimates by the Pew Hispanic
Center and the Department of Homeland Security, the number of people
living in the United States illegally has dropped by more than 1 million in
the past two years. That strongly implies that the net inflow of illegal
immigrants across the border has declined sharply.
The main reason for the drop in net illegal immigration is probably the
recession, but increased enforcement has arguably played a role as well.
According to a recent paper by Dr. Raul Hinojosa-Ojeda of UCLA, the
federal government has dramatically increased the resources it spends to
“control the border.”
Consider: The U.S. Border Patrol’s annual budget has shot up by 714
percent since 1992, from $326 million to $2.7 billion. During the same
period, the number of Border Patrol agents stationed along the
southwest border has grown from 3,555 to 17,415. Hundreds of miles of
fencing has been constructed along the border, much of it across private
property.
If this is the mark of a government “unwilling to do anything,” I would
shudder at the cost and intrusion of a more concerted effort.
The bottom line is that our “enforcement only” approach to controlling
the border has failed, and it will continue to fail until we create a legal
alternative to illegal immigration.
Today’s Tabbloid PERSONAL NEWS FOR lgn@limitedgovernmentnetwork.com
FISCALLY CONSERVATIVE BLOG FEEDS
Pork is the “Kiss of Death” [The
Club for Growth]
MAY 13, 2010 10:56A.M.
Conventional wisdom used to be that are misfiring this year.
FISCALLY CONSERVATIVE BLOG FEEDS
Another View on Immigration
[Cato at Liberty]
MAY 13, 2010 10:46A.M.
By Jason Kuznicki
With all due respect to my colleague Roger Pilon, I can’t say I share his
views on immigration. This is an old, old argument among libertarians,
so it should come as no surprise that someone takes the opposing view
here. Roger writes,
We no longer control our southern border, and Congress
seems unable or unwilling to do anything about it. It hardly
needs saying that a welfare state, in the age of terrorism,
cannot have open borders.
It’s never really been the case, though, that we did control that southern
border. Passage has always been relatively easy, at least aside from the
natural dangers. This may be a good thing or a bad thing, but it’s a
matter of historical fact. We can certainly change that, but it will only be
by doing something relatively new.
As to the welfare state, don’t expect me to shed any tears. Our welfare
state is already well on the path to bankruptcy, with or without illegal
immigrants. Compared to the damage being done by native-born U.S.
citizens and their cursedly long lifespans, the immigrants’ overall effects
are quite small. It would be unkind of us to set up such an ill-considered
system and then pin its inevitable demise on others.
And as to terrorism, there are measures we could take that would both
combat it and increase individual liberty — like legalizing recreational
drugs. Without the black market in drugs, we’d have a lot less to fear
from terrorists, particularly on our southern border. I can’t say I favor a
liberty-restricting policy to quash terrorism when a liberty-increasing
policy seems to do even better.
8
14 May 2010
FISCALLY CONSERVATIVE BLOG FEEDS
Did Kagan Have a “Disparate
Impact” on Military Recruiters?
[Cato at Liberty“Disparate
Impact” on Military
Recruiters?]
MAY 13, 2010 10:17A.M.
By Julian Sanchez
Perhaps you remember the case of Ricci v. DiStefano, so much discussed
during Sonia Sotomayor’s confirmation process? To recap briefly: The
city of New Haven had used a written test to determine which of its local
firefighters would be considered for promotions. When the tests came
back, it turned out that the high scorers were overwhelmingly Caucasian,
and so the city—fearing a lawsuit from black and Latino firefighters who
hadn’t made the cut—scrapped the results. Not, mind you, because the
test was in any way discriminatory on its face, but because federal law
frowns on any test that has a “disparate impact” on minority groups
unless it can be shown to be both closely related to the requirements of
the job and less uneven in its effects than comparable alternatives. A
number of the white firefighters then sued, claiming that it was
discriminatory to discard the test after the fact just because the high
scorers were too pale. Bracket the question of how Sotomayor, as a
circuit court judge, should have ruled. Clearly as a policy question, most
conservatives seemed disposed to side with the firefighters, and in
general conservatives have been highly skeptical of “disparate impact”
standards. If the standards are facially neutral, and were not chosen with
any pernicious intent (the argument runs), we should let the chips fall
where they may. Sounds fairly compelling to me.
So it’s a little odd to see folks like Weekly Standard editor Bill Kristol
casually talk about Elena Kagan’s “discrimination against the military”
during her tenure as dean of Harvard Law School. All Kagan did, after
all, was enforce Harvard’s preexisting rule requiring firms wishing to
recruit through the school’s Office of Career Services to certify that they
did not discriminate by sexual orientation. (This is not the same,
incidentally, as “banning recruiters from campus”—the military did
continue to recruit on campus via a student group.) It was a neutral rule
that applied to any company that wished to avail itself of the Office of
Career Service’s assistance, from which the military would have required
a special exemption. Kristol clearly didn’t think much of the logic of
“disparate impact” in the Ricci case, so why is he so quick to adopt it
here? There are many good reasons to be worried about Kagan, not least
her apparent fondness for an expansive conception of executive power,
but a commitment to even-handed application of the rules is not among
them.
Today’s Tabbloid PERSONAL NEWS FOR lgn@limitedgovernmentnetwork.com 14 May 2010

FISCALLY CONSERVATIVE BLOG FEEDS FISCALLY CONSERVATIVE BLOG FEEDS

Stopping and Searching [Cato at Getting Serious about

Liberty] Immigration [Cato at Liberty]
MAY 13, 2010 10:15A.M. MAY 13, 2010 09:29A.M.

By Tim Lynch By Roger Pilon

Police in New York City conducted 575,000 “stops” in 2009. The actual
number could be higher–depending on the number of stops the police
decided not to record on paper. The ’stop and search’ is a legally dubious
tactic that persists largely because white, middle-class people are mostly
unaffected by it. It is bad enough when the officers are in uniform, but
gets worse when the police are in plain clothes and approach people
rapidly. The police “target” may have only seconds to determine whether
he/she is facing a mugging or a police stop. More here.
FISCALLY CONSERVATIVE BLOG FEEDS
ATR Urges Senators to Oppose
Durbin Swipe Fee Amendment
to Dodd Bill [Americans for Tax
Reform]
MAY 13, 2010 10:10A.M.
[PDF DOCUMENT] Today, Americans for Tax Reform (ATR) urged all
Senators to oppose Senate Majority Whip Richard Durbin’s (D-IL) new
amendment (#3932) – which merges the main provisio...
Today Politico Arena asks:
Does the level of support for Arizona’s immigration law
demonstrate that immigration can be a potent
campaign issue in the 2010 midterms?
My response:
Few national issues produce more heat and less light than immigration,
as the reaction to Arizona’s recent legislation on the subject
demonstrates. And with nearly three-quarters of Americans now saying
they approve of allowing police to ask for documents, according to the
latest Pew Research Center poll, and the Arizona law’s approval-
disapproval rating at nearly 2 to 1, it’s hard to imagine that immigration
will not be a factor in the coming elections.
The issues surrounding the immigration debate — criminal, economic,
social — are often complex, and not always clear. But the underlying
issue is clear: We no longer control our southern border, and Congress
seems unable or unwilling to do anything about it. It hardly needs saying
that a welfare state, in the age of terrorism, cannot have open borders. If
the failure to control is partly a function of our substantive law — the
absence of a serious guest-worker program, for example — then that
needs to be corrected. But it needs to be done in concert with serious
enforcement.

Yet what was President Obama’s response to the Arizona law, which at
bottom was a call to Washington to do something? It was to ask the
FISCALLY CONSERVATIVE BLOG FEEDS Justice Department to look for any legal problems in the law and to
respond accordingly. It was to play the presumed political card, that
Dems’ energy policy: If you is, rather than to address the underlying issue, which he’d promised to
do during his campaign for the presidency. Well if the Pew numbers are
can’t beat ‘em, force it on ‘em any indication, this “master politician” may have once again, as with
ObamaCare, misread his mandate and the public mood. For a growing
[Americans for Tax Reform‘em, number of Americans, as recent elections have shown, November can’t
come soon enough.
force it on ‘em]
MAY 13, 2010 10:08A.M.

The following was originally published at www.dailycaller.com With the

“cash-for-caulkers” bill, the Home Star Energy Retrofit Act (HR 5019),
passing the House and making its w...

9
Today’s Tabbloid PERSONAL NEWS FOR lgn@limitedgovernmentnetwork.com
FISCALLY CONSERVATIVE BLOG FEEDS
Are You Substituting Worst-
Case Thinking for Reason?
[Cato at Liberty]
MAY 13, 2010 09:05A.M.
By Jim Harper
Bruce Schneier has a typically good essay on the use of “worst-cases” as a
substitute for real analysis. I noticed conspicuous use of “worst-case” in
early reporting on the oil spill in the Gulf. It conveniently gins up
attention for media outlets keen on getting audience.
There’s a certain blindness that comes from worst-case
thinking. An extension of the precautionary principle, it
involves imagining the worst possible outcome and then
acting as if it were a certainty. It substitutes imagination for
thinking, speculation for risk analysis and fear for reason. It
fosters powerlessness and vulnerability and magnifies social
paralysis. And it makes us more vulnerable to the effects of
terrorism.
Worst-case thinking—the failure to manage risk through analysis of costs
and benefits—is what makes airline security such an
expensive nightmare, for example. Schneier concludes:
When someone is proposing a change, the onus should be on
them to justify it over the status quo. But worst case thinking
is a way of looking at the world that exaggerates the rare and
unusual and gives the rare much more credence than it
deserves. It isn’t really a principle; it’s a cheap trick to justify
what you already believe. It lets lazy or biased people make
what seem to be cogent arguments without understanding
the whole issue.
It’s not too long for you to read the whole thing.
10
14 May 2010
FISCALLY CONSERVATIVE BLOG FEEDS
GM Ads and the FTC: Fred
Smith Responds [Cato at
Liberty]
MAY 13, 2010 08:41A.M.
By Walter Olson
Last week in this space I criticized my friends at the Competitive
Enterprise Institute for siccing the Federal Trade Commission on
General Motors over its misleading “we repaid our bailout money” ads.
Now CEI founder/president (and old friend) Fred Smith gives his side of
the story in a lengthy response. And a new report from Fox News covers
the whole controversy.
FISCALLY CONSERVATIVE BLOG FEEDS
Jury Acquits Tonya Craft [Cato
at Liberty]
MAY 13, 2010 08:40A.M.
By Tim Lynch
A Georgia jury has acquitted Tonya Craft of 22 criminal charges relating
to child abuse and child molestation. A remarkable outcome given the
awful rulings of the judge during the trial. Previous coverage here and
here.
When so many charges are leveled, the pressure to enter into a plea
bargain intensifies–even if the accused is innocent. The defense attorney
will say something like, “Look, some kids are going to say you did
something awful. That’s going to happen. We might persuade the jury to
acquit on most of the charges, but there’s still a chance they will convict
you on a few counts. That could mean several years in jail. Might be
better to plead guilty to one charge, serve six months, and then get on
with your life.” Some people breezily proclaim that they would never
plead guilty to a crime they did not commit, but when your own freedom
is really on the line, the decision is not so easy.
More on plea bargaining here (pdf).