Hillary's Secret War

Andrew P. Napolitano*

Judge Napolitano

Judge Napolitano

In the course of my work at Fox News, I am often asked by colleagues to review and explain documents and statutes. Recently, in conjunction with my colleagues Catherine Herridge, our chief intelligence correspondent, and Pamela Browne, our senior executive producer, I read the transcripts of an interview Browne did with a man named Marc Turi, and Herridge asked me to review emails to and from State Department and congressional officials during the years when Hillary Clinton was the secretary of state.

What I saw has persuaded me beyond a reasonable doubt and to a moral certainty that Clinton provided material assistance to terrorists and lied to Congress in a venue where the law required her to be truthful. Here is the backstory.

Turi is a lawfully licensed American arms dealer. In 2011, he applied to the Departments of State and Treasury for approvals to sell arms to the government of Qatar. Qatar is a small Middle Eastern country whose government is so entwined with the U.S. government that it almost always will do what American government officials ask of it.

In its efforts to keep arms from countries and groups that might harm Americans and American interests, Congress has authorized the Departments of State and Treasury to be arms gatekeepers. They can declare a country or group to be a terrorist organization, in which case selling or facilitating the sale of arms to them is a felony. They also can license dealers to sell.

Turi sold hundreds of millions of dollars’ worth of arms to the government of Qatar, which then, at the request of American government officials, were sold, bartered or given to rebel groups in Libya and Syria. Some of the groups that received the arms were on the U.S. terror list. Thus, the same State and Treasury Departments that licensed the sales also prohibited them.

How could that be?

That’s where Clinton’s secret State Department and her secret war come in. Because Clinton used her husband’s computer server for all of her email traffic while she was the Secretary of State, a violation of three federal laws, few in the State Department outside her inner circle knew what she was up to.

Now we know.

She obtained permission from President Obama and consent from congressional leaders in both houses of Congress and in both parties to arm rebels in Syria and Libya in an effort to overthrow the governments of those countries.

Many of the rebels Clinton armed, using the weapons lawfully sold to Qatar by Turi and others, were terrorist groups who are our sworn enemies. There was no congressional declaration of war, no congressional vote, no congressional knowledge beyond fewer than a dozen members, and no federal statute that authorized this.

When Sen. Rand Paul, R-Ky., asked Clinton at a public hearing of the Senate Armed Services Committee on Jan. 23, 2013, whether she knew about American arms shipped to the Middle East, to Turkey or to any other country, she denied any knowledge. It is unclear whether she was under oath at the time, but that is legally irrelevant. The obligation to tell the truth, the whole truth and nothing but the truth to Congress pertains to all witnesses who testify before congressional committees, whether an oath has been administered or not. (Just ask Roger Clemens, who was twice prosecuted for misleading Congress about the contents of his urine while not under oath. He was acquitted.)

Here is her relevant testimony.

Paul: My question is … is the U.S. involved with any procuring of weapons, transfer of weapons … buying, selling … anyhow transferring weapons to Turkey … out of Libya?

Clinton: To Turkey? ... I will have to take that question for the record. Nobody’s ever raised that with me. I, I…

Paul: It’s been in news reports that ships have been leaving from Libya and that they may have weapons … and what I’d like to know is … the (Benghazi) annex that was close by… Were they involved with procuring, buying, selling, obtaining weapons … and were any of these weapons transferred to other countries … any countries, Turkey included?

Clinton: Senator, you will have to direct that question to the agency that ran the (Benghazi) annex. And I will see what information is available and … ahhhh…

Paul: You are saying you don’t know…

Clinton: I do not know. I don’t have any information on that.

At the time that Clinton denied knowledge of the arms shipments, she and her State Department political designee Andrew Shapiro had authorized thousands of shipments of billions of dollars’ worth of arms to U.S. enemies to fight her secret war. Among the casualties of her war were U.S. Ambassador to Libya Chris Stevens and three colleagues, who were assassinated at the American consulate in Benghazi, Libya, by rebels Clinton armed with American military hardware in violation of American law.

This secret war and the criminal behavior that animated it was the product of conspirators in the White House, the State Department, the Treasury Department, the Justice Department, the CIA and a tight-knit group of members of Congress. Their conspiracy has now unraveled. Where is the outrage among the balance of Congress?

Hillary Clinton lied to Congress, gave arms to terrorists and destroyed her emails. How much longer can she hide the truth? How much longer can her lawlessness go unchallenged and unprosecuted? Does she really think the American voters will overlook her criminal behavior and put her in the White House where she can pardon herself?

*Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution.

Hard Questions on Same-Sex Marriage

Richard Epstein*

Richard Epstein

Richard Epstein

It doesn’t take a weatherman to tell which way public opinion blows. The huge uptick of support for same-sex marriage has beendescribed as swift and broad, to which we can add, in all likelihood, lasting.

In my view, every time the defenders of the traditional view of marriage speak in public on behalf of a ban, they lose the support of neutral third parties. The problem is that they are trying to tell other people how they should lead their own lives, and are using the power of the state to do it. Their justifications are far from compelling. They talk about the need for procreation in marriage, though many straight married couples use contraceptives. They talk about the risks to parenting, when there is no evidence that suggests that gay and lesbian couples are worse parents, especially when compared to dysfunctional couples in traditional marriages or single parents of limited financial means. Their arguments against same-sex marriage thus fall flat to modern ears, so that the basic support for same-sex marriage only grows.

The transformation of public opinion dovetails nicely with the recent Supreme Court decision in Obergefell v. Hodges, in which Justice Anthony Kennedy’s Olympian opinion echoed the social tidal wave in favor of same-sex marriage. Kennedy did not bother to articulate what standard of scrutiny, high or low, controls the case. In his mind, the case for an inclusive definition of marriage is so strong that the ban on same-sex marriage cannot survive under any standard of review. Analytically, however, he provided only weak answers to an even more fundamental question: What judgments should be left to democratic processes and what judgments should be insulated against majoritarian politics?

This problem has special urgency here because of the unbroken historical record that defines marriage as a union between a man and a woman. Justinian’s Institutes of the sixth century AD, for example, apply the rules of marriage only to human beings, but treat them as part of “that law which nature teaches to all animals.” That code of law states: “Marriage, or matrimony, is a binding together of a man and woman to live in an indivisible union.”

The defense of the traditional understanding of marriage that was raised forcefully by Judge Jeffrey Sutton in the Sixth Circuit(and picked up by Chief Justice John Roberts in his pointed dissent in Obergefell) raises the question of how can the Court read the Constitution to invalidate the universal definition of marriage as between a man and a woman? Tradition is a legitimate ground on which to defend social legislation elsewhere, so why not here?

The best way to go is to try to understand why the traditional definition of marriage was universal. The defenders of traditional marriage claim that the purpose of marriage is procreation, which is impossible with same-sex couples. Kennedy denies that there is any good fit between marriage and procreation: After all, many men and women wish to marry when they do not or cannot have children, so the state could never condition a marriage license on couple’s commitment to have children.

Nonetheless, this response underestimates the role of procreation in defining marriage. Historically, procreation was widely regarded as the essential purpose of marriage. Indeed, the words in Genesis 1:28, “be fruitful and multiply and fill the earth and subdue it,” read as much like a command as a blessing. Within this framework, same-sex relationships are different: They can never add offspring to society, but they can reduce them by taking both men and women out of the reproductive market, and thus undercut that social imperative. The preservation of society through reproduction is strongly tied to traditional marriage, but not to same-sex marriage. So why condemn the traditional view as arbitrary when it tends to advance a desirable societal end?

Historically, this point found a constitutional home. Even though the traditional “morals” head of the police power is nowhere mentioned, it had long been used to give the state extraordinary leeway in regulating all sorts of sexual relations, as was detailed in Justice Byron White’s now-widely-reviled 1986 opinion in Bowers v. Hardwick, whose historical accuracy remains unquestioned. As late as 1961, all 50 states outlawed all forms of sodomy, even though many bans fell into desuetude. But throughout it all, no one, anywhere, has suggested that it would fall in the power of the state to abolish the traditional institution of marriage altogether. The overall consequences for child rearing would be disastrous.

It is fair to respond, as Kennedy does, that the advocates of same-sex marriage do not wish to ban marriage but to partake in it, so that there is nothing to fear from the decision except the fuzzy sentiments of individuals opposed to the practice. That is a good reason to ask the legislature to change the definition. But it is less clear that it is a good reason to allow courts to preempt the democratic process. On this point, the Kennedy response is to say that there has already been “far more deliberation” than the Sutton opinion acknowledges in every conceivable forum. In Kennedy’s view, the endless discussion has led to an “enhanced understanding” of the issue—namely his—which displaces the vote as a way to resolve the debate. The dignitary interests of these couples is so strong that it is “demeaning to lock same-sex couples” out of marriage.

Yet at no point does he ask whether the criminalization of polygamous marriages under the Supreme Court’s 1878 decision inReynolds v. United States—an uncommonly ugly invocation of the morals head of the police power—should be overturned given how it demeans and punishes polygamous families. His blinkered view of autonomy lets him attack the restriction of marriage to persons of opposite sexes, but not its limitation to two people.

The Scalia dissent scores big points in attacking Kennedy for judicial hubris, by insisting that the whole point of democracy is not just to inform the justices but to let the people decide on the issue. So Kennedy, like everyone else, must explain why a nationally consequential decision on same-sex marriage should be taken out of the democratic process. His answer is that it involves the assertion of a “fundamental right,” a term that he nowhere defines. Thus, when the fundamental rights of persons are violated, “the Constitution,” he writes, “requires redress by the courts, notwithstanding the more general value of democratic decisionmaking.”

At this point, his analysis turns wobbly. Kennedy eagerly talks about the “dignity” of the individual in two-person marriages. And he lauds the Court’s 1967 decision in Loving v. Virginia for striking down the ban of interracial marriage between a man and a woman, on the combined strength of the Due Process and the Equal Protection Clauses of the Fourteenth Amendment. The libertarian foundations of Loving are also evident.

But why stop there when the concept of liberty goes a lot further? In particular, Kennedy never explains why his notions of dignity and autonomy do not require the Supreme Court to revisit its 1878 decision in Reynolds upholding criminal punishment for polygamy, which is still on the books. Nor does he ask whether the dignity of workers could, and should, be used as a reason to strike down the full range of labor regulations on both wages and hours that make it flatly illegal for two individuals to enter into a simple employment contract on mutually agreeable terms.

To his credit, Chief Justice Roberts—no libertarian—sees the connection, and thus uses his condemnation of the 1905 Supreme Court decision, Lochner v. New York, for striking down a maximum hours law, as a cudgel to explain why the Constitution has nothing to say about same-sex marriage. Unfortunately, Roberts lurches too far in the opposite direction. Historically, the case for economic liberties is far stronger than that for same-sex marriage because labor never got entangled with the morals head of the police power. Indeed, much recent scholarship, especially by David Bernstein, shows the dubious special interest, anticompetitive politics that Lochner helped thwart. It would be a lot easier to accept the Kennedy position if he were prepared to embrace a concept of liberty for all by overturning Reynolds and restoring Lochner. But on those areas, inexplicably he flips back to the democratic side, without ever defining the state interest in squashing the operation of competitive labor markets.

It gets worse because in the wake of Obergefell, we have to ask what the next step in the struggle over same-sex marriage will be. By insisting that same-sex marriage is a fundamental right, Kennedy has consciously introduced an equivalence between race and sexual orientation. How far is he prepared to go? In the 1983 case of Bob Jones University v. United States, the Supreme Court upheld an IRS decision to deny tax-exempt status to schools engaging in racial discrimination. The Court acknowledged that it could not outlaw the Church’s practices, which were protected as a free exercise of religion. But the differential tax treatment was fine because “the Government has a fundamental, overriding interest in eradicating racial discrimination in education.”

Can the IRS now deny tax exemption to the Roman Catholic Church on the ground that it rejects, on religious grounds, same-sex marriage? If so, that judicial notion of “fundamental interests” works effortlessly both to expand and contract state power. It can insulate the exercise of some liberties from state control, but allow other liberties to be burdened by differential treatment of other liberties, including those expressly embedded in the Constitution.

The point here is not idle speculation. Here are three data points. In Martinez v. Christian Legal Foundation (2010), a five-to-four majority with Justice Kennedy concurring, held that it was perfectly proper for Hastings Law School, a public institution, to deny the tiny Christian Legal Foundation the full benefit of school facilities largely because of its opposition to same-sex marriage. The government can offer its subsidies to some groups but not to others, and in so doing, force small isolated groups to subsidize powerful gay rights organizations. Religious intolerance best describes that outcome.

Since then, the situation has only gotten worse. Last year there was public outrage at the Supreme Court’s decision in Burwell v. Hobby Lobby, which upheld claims under the Religious Freedom Restoration Act that a closely held company did not have to supply contraceptives to its female employees in a fashion inconsistent with its owners’ religious beliefs. And more recently, claims for religious autonomy have been crushed in state court decisions that have fined individuals who have refused on religious grounds to make wedding cakes for same sex couples. No one seems to be concerned with the autonomy and dignity of those under the state’s thumb. They will have to abandon their chosen profession to honor their religious beliefs. I see no evidence that gay and lesbian rights advocates are prepared to back off of these statist claims.

The hard question is how Justice Kennedy—now the swing vote on all matters “fundamental”—thinks about this issue. Here the evidence is decidedly mixed. To be sure, his opinion in Obergefell talks about the importance of letting religions “teach” the central principles of their faith. But as Justice Thomas’s dissent points out, a religion that is allowed to teach its beliefs may be forced to give up its tax-exempt status if it puts those beliefs into practice, and its adherents can be hounded by the state if they decide to run their personal lives in accordance with their religion. We thus face a serious risk in the aftermath of Obergefell: liberty in gay rights will turn out to be a one-way street. Some liberties will be guaranteed for some people while other liberties will be squashed for others. As I write, the gay rights movement is gearing up to expand the scope of the antidiscrimination laws in housing and labor markets.

No one says that democratic theory is easy to understand. But there is nothing in the Kennedy opinion that offers any assurance that the religious beliefs and practices of the shrinking religious minority who are opposed to same-sex marriage will be respected by the Supreme Court. As a libertarian, I support same-sex marriage. As a libertarian, I fear the totalitarian overtones sounding from the next round of gay rights initiatives.

*Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects.

Protecting Hatred Preserves Freedom

Andrew P. Napolitano*

Judge Napolitano

Judge Napolitano

The tragedy of a mass murder in Charleston, S.C., last week, obviously motivated by racial hatred, has raised anew the issue of the lawfulness of the State expressing an opinion by flying a Confederate flag at the Statehouse, and the constitutionality of the use of the First Amendment to protect hate speech and hate groups. The State has no business expressing opinions on anything, and it is required to protect hate. Here is the law.

Let’s start with the proposition that hatred of persons is a profound disorder, and it is no doubt motivated by far deeper errors of thought and judgment than admiration for a flag. I recognize that to some in our society, the Confederate flag represents resistance to federal authority enforced by military aggression; while to others, it represents racial oppression under color of law bringing about the worst violations of the natural rights of born persons in American history -- namely slavery. To me, it represents both. Yet, the government has no business flying it.

In a lawsuit brought against the State of Texas seeking to compel Texas to offer automobile license plates bearing the Confederate flag, the Supreme Court in dismissing the suit ruled just two weeks ago that the government enjoys the same freedom of speech as do persons. This is a novel and dangerous idea. It places government -- an artificial creature based on temporary consensus and a monopoly of force -- on the same plane as human beings, who are natural creatures with immortal souls endowed by our Creator with natural rights.

Natural rights, foremost among which after life itself is freedom of expression, are gifts from God. They are not manmade and hence cannot be transferred to a manmade entity. They are as natural to us as are the fingers on our hands. We don’t need a government permission slip in order to exercise them.

In the case of speech, it is especially dangerous to accord the natural rights of persons to the government because the state can use its monopoly of force to silence, drown out or intimidate the speech of any persons it hates and fears. When the state speaks, its expressions have an aura of legitimacy and can be used for narrow, sectarian, even hateful purposes. But the whole purpose of the First Amendment is to keep the government out of the business of speech.

If I were in the South Carolina legislature, I'd vote to remove the Confederate flag from the Statehouse because I'd silence all government speech except that which is universally accepted (like the American flag), utterly innocuous (like the library is closed on Sundays) or absolutely necessary for governance (like speed limits on state roads). Otherwise, who cares what the government thinks?

The First Amendment to the Constitution also protects the rights of every person to embrace hatred. It guarantees all persons the freedom of thought, expression and association. Thought and association are guaranteed unconditionally. Imagine the dangers of the government telling us how to think.

The rule on speech is that all innocuous speech is absolutely protected, and all speech is innocuous when there is time for more speech to address it before the violence it suggests may come about. Stated differently, the First Amendment absolutely bars the government from interference with a person’s thoughts or associations, and permits interference with a person’s expressions only if necessary to prevent immediate lawless violence when there is no time for more expression to do so first.

But the government may never, consistent with the First Amendment, interfere with expression because it despises or fears the views animating the expressions. This temptation is another danger of according the government the freedom of speech.

Hatred, though invariably destructive to those it animates, is a protected mode of thought and expression and may form the basis for association. Groups may be formed based on hate, and the government may not interfere with them because it hates and fears their hatred. Some hate groups are merely a vessel for folklore and group comfort; some are willing to use violence to advance their nefarious beliefs.

But the willingness alone to use violence is not criminal; it is only the actual use of violence that is. Thus, it is the manifestation of hatred as lawless violence that may be prosecuted, but the manifestation of hatred as a unifying idea is protected and may not be prosecuted.

The remedy for hatred is reason. Hatred of persons is always unreasonable. It takes a characteristic of birth -- color, ethnicity, religion, for example -- and unreasonably ascribes mythological and unitary traits to it. Those ascribed traits usually appeal to the base fears and biases of the hater, feed his weaknesses, and provide him with a mental haven for his failings. Yet, reason and overwhelming opinion to the contrary can dilute hatred.

Hatred sometimes provides a dark place of comfort for the weak, and it can be addictive. We must guard against its allurements. Lord Byron in “Don Juan” warned of hatred’s irony:

             Now hatred is by far

             The longest pleasure.

             Men love in haste, but they

             Detest at leisure.

Yet, God, too, hates. He hates sin, and we, as well, must hate sin. But like the families of those murdered in Charleston, we must imitate our Creator: We must love the sinner and the hater.

*Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution.

SUPREME COURT RULES AGAINST PLAINTIFFS ON ACA SUBSIDIES

The Supreme Court decided, in a 6-3 decision by Chief Justice Roberts, that federal subsidies are available on exchanges set up by the federal government, despite potentially conflicting statutory language. The Chief Justice's decision was joined by Justices Kennedy, Ginsburg, Breyer, Kagan, and Sotomayor. 

The Chief Justice's majority opinion noted: "Petitioners’ arguments about the plain meaning of Section 36B are strong. But while the meaning of the phrase “an Exchange established by the State under [42 U. S. C. §18031]” may seem plain “when viewed in isolation,” such a reading turns out to be “untenable in light of [the statute] as a whole.” Later, the Chief Justice added:

After telling each State to establish an Exchange, Section 18031 provides that all Exchanges “shall make available qualified health plans to qualified individuals.” 42 U. S. C. §18031(d)(2)(A). Section 18032 then defines the term “qualified individual” in part as an individual who “resides in the State that established the Exchange.” §18032(f)(1)(A). And that’s a problem: If we give the phrase “the State that established the Exchange” its most natural meaning, there would be no “qualified individuals” on Federal Exchanges. But the Act clearly contemplates that there will be qualified individuals on every Exchange. Cite as: 576 U. S. ____ (2015) 11 Opinion of the Court. As we just mentioned, the Act requires all Exchanges to “make available qualified health plans to qualified individuals”—something an Exchange could not do if there were no such individuals. §18031(d)(2)(A). And the Act tells the Exchange, in deciding which health plans to offer, to consider “the interests of qualified individuals . . . in the State or States in which such Exchange operates”—again, something the Exchange could not do if qualified individuals did not exist. §18031(e)(1)(B). This problem arises repeatedly throughout the Act. See, e.g., §18031(b)(2) (allowing a State to create “one Exchange . . . for providing . . . services to both qualified individuals and qualified small employers,” rather than creating separate Exchanges for those two groups).1 These provisions suggest that the Act may not always use the phrase “established by the State” in its most natural sense. Thus, the meaning of that phrase may not be as clear as it appears when read out of context.

The Chief Justice's opinion concluded that, "Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter. Section 36B can fairly be read consistent with what we see as Congress’s plan, and that is the reading we adopt."

Justice Scalia's dissent, joined by Justices Thomas and Alito, was blistering. The second most senior Justice wrote: 

"Words no longer have meaning if an Exchange that is not established by a State is “established by the State.” It is hard to come up with a clearer way to limit tax credits to state Exchanges than to use the words “established by the State.” And it is hard to come up with a reason to include the words “by the State” other than the purpose of limiting credits to state Exchanges. “[T]he plain, obvious, and rational meaning of a statute is always to be preferred to any curious, narrow, hidden sense that nothing but the exigency of a hard case and the ingenuity and study of an acute and powerful intellect would discover.” Lynch v. Alworth-Stephens Co., 267 U. S. 364, 370 (1925) (internal quotation marks omitted). Under all the usual rules of interpretation, in short, the Government should lose this case. But normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved."

In perhaps the most memorable line, he expressed frustration as he wrote "Having transformed two major parts of the law, the Court today has turned its attention to a third. The Act that Congress passed makes tax credits available only on an 'Exchange established by the State.' This Court, however, concludes that this limitation would prevent the rest of the Act from working as well as hoped. So it rewrites the law to make tax credits available everywhere. We should start calling this law SCOTUScare." 

The decision marks the second decision in three years to uphold the law from a potentially fatal attack. In 2012, the Supreme Court ruled in NFIB v. Sebelius that the individual mandate was constitutional not under the Commerce Clause of the Constitution, but rather as a tax. 

Hillary Clinton vs. Free Trade

Richard Epstein*

Richard Epstein

Richard Epstein

The Trans-Pacific Partnership (“TPP”), which is designed to reduce various trade barriers between the United States and eleven Pacific Rim nations—Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, and Vietnam—hangs by a thread in the United States Congress. The immediate question is not the ratification of any future treaty. Rather, it is over whether the President should receive “fast-track” authority to negotiate a treaty on behalf of the United States, over which the Congress can exercise only an up-or-down vote, with no amendments allowed, after a maximum of 20 hours of debate.

Passing the fast-track measure, which is supported by the Republicans and President Obama, would be a win for free trade. But anti-trade forces, including Hillary Clinton and Nancy Pelosi, are conspiring against it.

From a game theory approach, fast-track is a good solution to a complex two-stage bargaining game. At stage one, the President and his trading partners are well aware of the prospect that the Congress could turn down a trade treaty if it is perceived, no questions asked, to put the United States in a worse position. So Congress will agree to a treaty that is better than the status quo ante for the U.S., but not so one-sided that it will drive our potential trading partners away. Hence, a stage one agreement will leave everyone better off.

The great advantage of fast-track authority is that it ensures that sensible agreements at stage one will not be rejected at stage two, in the hopes that the United States (or indeed any of our trading partners) can then strategically hold out for better terms.

Such strategic behavior is indispensible for negotiating multi-lateral treaties. This is why the anti-trade forces in the United States have pulled out all the stops to derail a process that they know is likely to pave the way to agreements that leave everyone better off. Two key interest groups, labor and environmental, are staunchly opposed to such agreements.

These negotiation dynamics have set up an alliance of strange bedfellows. President Obama, to his credit, has perceived that either the United States must join the TPP or risk being shut out of trading opportunities with some of the most dynamic and emerging economies in the world. It’s not clear today how Congress will come out on this issue, but it’s worth looking at the intellectual mindset that has given rise to the debate.

The key to international trade arrangements lies in understanding the simpler dynamics of domestic economic systems. In domestic markets, the ideal state provides a neutral platform on which competitive markets can flourish to maximize gains from trade. That competitive outcome depends in large measure on strong property rights and one’s ability to voluntarily contract for both goods and services. It also requires public infrastructure over which trade can take place. Finally, it establishes rates for natural monopolies—chiefly common carriers and public utilities—that cannot be broken up, and uses the antitrust law to respond to the monopoly and cartel arrangements of ordinary firms.

In a complex federal system like that of the United States, a wide number of nondiscrimination rules—each state can only subject out-of-state people to regulations and taxes it imposes on its own citizens and firms—are necessary to prevent each state from showering unearned favors on its own citizens and firms. In essence, these rules forge a national union out of its state subunits. The driving force behind this model is that an open market where all parties can freely trade benefits all the participants in the system. To be sure, disappointed competitors abound, but so long as people can enter and exit markets multiple times, the larger the pie will be for more and more people. Indeed, no society that has ever prospered has done so in wholesale deviation from these rules.

Sadly, labor unions reject this model and claim that workers will be exploited if there are no strong pro-union laws. In reality, these laws establish an artificially high wage structure, which then has to be protected from competitive pressures, both domestic and foreign. This worldview then translates into tariff and tax barriers against the entry of foreign goods and workers.

Environmental groups also reject this model. They do not stop with the enforcement of anti-nuisance laws, i.e. property rights, to address pollution and other emissions. Instead, under the guise of the “precautionary principle,” they demand excessive control of minor risks, and then go on to conscript, without compensation, private property to protect wetlands and endangered species.

Within the domestic sphere, these groups have enjoyed extensive successes. But they are rightly afraid that their successes will come under assault if low-priced goods and services can be imported. Hence both groups oppose free trade agreements that cut tariff and tax barriers to foreign goods and services, because such free trade measures undercut these groups’ domestic victories.

Unfortunately, their shortsighted position ignores the benefits to those nations whose goods and services are sold in the United States. Similarly, they disregard the domestic benefits to individuals and firms who use the lower prices and superior quality of imported goods to get a better deal for themselves. The gains here are not confined, moreover, to domestic markets. Incorporating cheaper foreign goods and services into American goods improves our position in export markets. The logic that drives domestic markets also works internationally: there are mutual gains from trade, which is why most independent analysts start with a strong presumption in favor of free trade.

Ironically, this unvarnished position is not, right now, saleable in the United States. A quick look at the position staked out by the United States Trade Representative on the TPP shows the substantial concessions that the Obama administration and the Republicans are prepared to make to labor and environmental groups to keep the deal alive. Here are some key items:

  • “The TPP will support Made-in-America exports”; “The TPP will help American small businesses benefit from trade.” These two propositions contain a built-in ambiguity. TPP is certainly correct to seek to remove trade barriers to those growing markets where we would like to enter. But it would be a mistake to countenance any government subsidy for any firms, big or small, in the export market. All subsidies distort domestic markets by encouraging overproduction of the subsidized goods, and the relative underproduction of the overtaxed goods and services. It will require constant vigilance to keep the TPP on target.
  • “The TPP will enforce fundamental labor rights.” More concretely, this means that: “The TPP will level the playing field for American workers and businesses by building strong and enforceable labor standards.” Big mistake. The essence of international competition is to allow each nation to decide what level of labor protection it wants to give its own workers, knowing that those protections that raise costs without providing offsetting benefits will make local businesses less competitive in global markets. Indeed, oftentimes strong unions, a high minimum wage, or too many safety regulations in developing nations will hamper the transition from lower to higher levels of productivity. The point here is not that the United States should tell other nations not to have labor laws because they are inconsistent with the principles of laissez-faire. It is to let sovereign nations decide for themselves, so that a trade agreement does not contain its own obstacles to free trade. These international pressures will threaten unions all over. But the short term decline in union wages will be overcome when gains in productivity will lead to sustainable higher wages without any artificial government protection.
  • “The TPP will promote strong environmental protection.” Again, there are two cases. The first is that nations in the free trade bloc will pollute across international borders, which is frankly a low-risk for the signatories to the Trans-Pacific Region. But for these actions, one nation should have recourse against another whether or not there is a free trade agreement in place. So the real point here is that the United States is seeking to make other nations choose a level of internalenvironmental protection that suits our needs rather than theirs. In general, as prosperity increases, domestic demand for environmental regulation gets more intense. By helping trade grow, we facilitate that process. But by imposing extrinsic standards, we actually thwart competition and block that economic progress.

There are two other gaps in our trade policy that should be noted. The first is that we insist that the trade agreement be accompanied by trade adjustment assistance—a provision for retraining domestic workers whose jobs are said to be lost to foreign competition. It is just this linkage between worker-aid bills and free trade that has complicated passage of the legislation. Traditionally, Republicans have swallowed their pride to vote for both measures, even though trade adjustment assistance makes no more sense in the international context than it would in the domestic context. Competition always produces discrete losers, who then become the poster children for government support. These programs have a checkered history at best. But it is best to keep them rather than lose the TPP.

The second mistake is rhetorical. There is in these discussions a peculiar silence about the gains from trades that are supplied to our trading partners. These are in fact of enormous importance. At one level, more prosperous nations are more stable socially and stronger militarily. They will have a greater demand for American goods and services. In addition, they are more likely to be better disposed to us at a time when we need all the allies we can garner in this uncertain world.

And, from a moral perspective the lives and happiness of citizens of other nations is worth encouraging for simple humanitarian reasons. The old utilitarian maxim that “each person counts for one and only one” applies in international affairs as well as domestic ones. The unsavory jingoism of organized labor discounts an individual’s utility simply because he speaks a different language or has a different skin color.

When American politicians like Hillary Clinton and Nancy Pelosi, and groups like Public Citizen start speaking of the need to extract a better deal for American workers, we should expose this indefensible chauvinism for what it is. An imperfect trade deal is far better for everyone than no trade bill at all. Yet progressives violate their own conception of universal justice by lining up against the TPP.

*Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects.

What If They Are Hiding the Truth?

Andrew P. Napolitano*

Judge Napolitano

Judge Napolitano

What if President Obama secretly agreed with others in the government in 2011 to provide arms to rebels in Libya and Syria? What if the scheme called for American arms merchants to sell serious American military hardware to the government of Qatar, which would and did transfer it to rebel groups? What if the U.S. Department of State and the U.S. Department of the Treasury approved those sales?

What if the approvals were kept secret because some of those rebel groups were characterized by the same Departments of State and Treasury as terrorist organizations? What if the ultimate recipients of those arms were the militants and monsters in al-Qaida and ISIS who have slain and tortured innocents?

What if this scheme is defined in federal law as providing material assistance to terrorist organizations? What if that’s a felony? What if that’s the same felony for which the U.S Department of Justice has prosecuted dozens of persons merely for attempting? What if this scheme was not a mere attempt, but an actual arming of terrorists?

What if this scheme was approved not only by the president, but also by Secretary of State Hillary Clinton? What if the idea of doing this was hers? What if congressional leaders in both houses of Congress and from both parties signed off on this? What if the remaining members of Congress and the American people were kept in the dark about this scheme? What if those who agreed to permit this scheme knew that the arms were destined for terrorist organizations and they were flirting with a criminal conspiracy to violate federal law?

What if Clinton was asked by senators while under oath about the delivery of arms made by American manufacturers to ports in the Middle East and she denied knowing anything about it? What if she knew she had personally approved the deliveries but falsely claimed she had no knowledge?

What if this arms-to-terrorists scheme began to unravel? What if the rebels were really bad guys? What if there are many rebel/terrorist groups with varying degrees of hatred for the United States? What if some of the groups that received American arms are so hateful of the U.S. that they will bite the hands that fed them?

What if Clinton’s job was to prevent American arms from slipping into the hands of terrorists? What if she secretly did the opposite of what her job required? What if she and the president and the other conspirators viewed themselves as being above the law? What if they thought the terrorist groups they were arming would overthrow the Gadhafi government in Libya and the Assad government in Syria? What if they believed those revolutions would be greeted with cheers in the West? What if they hoped the cheers would be for them?

What if their goal of regime change succeeded in Libya, and yet the result was chaos? What if under Col. Gadhafi Libya had been a stable U.S. ally? What if today there is no central government in Libya and it is ruled by gangs and tribes and militias?

What if the American assistance to Syrian rebels became known to the Russians? What if that knowledge prompted Russian President Putin to help his ally, President Assad of Syria? What if the American and Russian introduction of heavy military hardware into the Syrian civil war has resulted in prolonged war and more deaths of innocents and destruction of property, not less?

What if one of the terrorist groups that received American arms from this scheme attacked the American consulate in Benghazi, Libya, because it wanted more arms from the U.S. and it knew arms were stored there? What if that attack killed U.S. Ambassador to Libya Chris Stevens and three of his colleagues? What if this was a nightmare scenario for the conspirators? What if the conspirators now fear that the truth of their plot will become known?

What if the tragedy at Benghazi was unwelcome but not unforeseen? What if the conspirators knew of the risks to innocent lives attendant upon breaking the law by giving arms to madmen? What if members of Congress who were kept in the dark about the arms-to-terrorists scheme were outraged over Benghazi? What if leaders of the House of Representatives, some of whom were conspirators, formed a committee to investigate how the murder of Stevens came about?

What if some members of that committee already know that Stevens and the others were murdered with U.S. weapons illegally given to U.S. enemies secretly by U.S. government officials? What if the stated purpose of the committee -- to seek the truth about Benghazi -- is not the true purpose? What if the real purpose of that committee is to suppress the truth so that the president and Clinton and the other conspirators do not get indicted? What if the truth is the last thing the conspirators want to see come out?

What do we do about lawless government by secrecy? What do we do about government officials who act as if they are above the law? What do we do if one of them lives in the White House and controls all federal prosecutions? What do we do if another of them is presently on her way there?

*Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution.

The Battle Over Jerusalem

Richard Epstein*

Richard Epstein

Richard Epstein

Some of the largest legal battles that make their way to the Supreme Court turn on a single word. That is surely true of the recent case of Zivotofsky v. Kerry, where the Court had to decide whether Menachem Zivotofsky’s parents could insist that their son’s American passport list “Jerusalem, Israel,” as his place of birth, instead of just “Jerusalem.” To add “Israel” would have required the State Department to acknowledge to the world that Jerusalem is that country’s capital.

In a sharp split of opinion, Justice Kennedy, joined by the four liberal justices (Ginsburg. Breyer, Kagan, and Sotomayor) plus Justice Thomas, (writing for himself) held that Congress could not require the President, through the State Department, to add “Israel” at the Zivotofsky’s request. The remaining three conservative justices (Roberts, Scalia, and Alito) all thought that this decision ultimately fell to Congress.

This case raises some interesting questions. First, why all of the fuss over a single word, “Israel,” being added to someone’s passport? Second, why did most of the conservative justices defer to Congress on this decision, rather than delegate the power to the president? Conservatives, after all, tend to favor broad presidential powers in foreign affairs.

The historical story starts in 1948 when President Harry Truman first provisionally recognized Israel as a separate sovereign nation. In January 1949, the White House recognized Israel on a de jure basis. On both occasions, Truman refused to recognize Jerusalem as Israel’s capital. Instead, he insisted that “the status of Jerusalem . . . should be decided not unilaterally but in consultation with all concerned.”

It is inconceivable that any voluntary settlement of the Israeli/Palestinian conflict would require that the Israelis cede Jerusalem to the Palestinians. Similarly, if a settlement were reached, it is inconceivable that the Israelis would be precluded from setting up their capital in that part of Jerusalem that has remained under its control. Be that as it may, Truman’s decision has been the unbroken executive branch position on the topic, through Republican and Democratic administrations alike. At no point did Congress take any formal role in the recognition process.

By 2003, the executive branch’s guarded position did not sit well with the Congress, which included in the “Foreign Relations Authorization Act, Fiscal Year 2003” a proviso that stated that for “purposes of the registration of birth, certification of nationality, or issuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel.” President George W. Bush signed the bill subject to a signing statement that challenged Congress’s effort to encroach on his powers over foreign affairs. Who prevails in this test of wills?

First, this arcane debate is not and should not be construed as a debate over the proper U.S. stance toward Israel. The question up for grabs is the distribution of powers between the executive and legislative branches. The same constitutional quandary would have arisen if the President had wanted to let American citizens write “Jerusalem, Israel,” on their passport, and Congress had passed legislation to block it.

The basic techniques of constitutional interpretation always look to the text, structure, and practice to resolve disputes. Unfortunately, any fair-minded reading of the available constitutional texts quickly reveals that neither Congress nor the President has any clear textual warrant to discharge a function, issuing passports, that one of them of necessity must control for the government to function. In Zivotofsky, Justice Kennedy accepted Secretary of State Kerry’s position that the President’s power to “receive ambassadors” necessarily carried with it the power to decide which nations could send them, and thus grants the President control over the entire process of recognizing foreign nations. That textual argument is a large stretch. In his short but pithy dissent, Chief Justice Roberts quotes Alexander Hamilton, who noted that the relevant clause imposes a duty on the President that “is more a matter of dignity than of authority.”

Indeed, presumably receiving ambassadors could be subject to some bilateral treaty under which Article II, Section 2, of the Constitution does not give the President sole control over the matter. Quite the opposite, it provides: “The President . . . shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur.”

The Senate, but not the Congress, has an explicit check on the President that is inconsistent with any extensive claim that the President has exclusive and preclusive control over foreign affairs. Take it one step further: close to half of the enumerated powers of Congress in Article I, Section 3, relate to foreign affairs and military operations, including those that limit the President in his role as “commander-in-chief.” Article II of the Constitution instructs the President to “take care that the Laws be faithfully executed,” which speaks more to his subservience to Congress than it does to his independence.

Unfortunately, the textual arguments on behalf of Congressional power are every bit as tenuous. Just where is that power found? Justice Scalia acknowledged that Congress does not have plenary power to pass whatever legislation meets its fancy. He therefore sought to identify its textual source of power over passports. One candidate is the power of Congress “to regulate commerce with foreign nations.” Unfortunately, passport control for American citizens has a lot less to do with foreign commerce than with tariffs and trade. Nor does passport control relate to Congress’s power of naturalization, which deals with making aliens citizens, not granting passports to American citizens.

All textual arguments fail, so it is on to constitutional structure. But once again, the arguments on both sides are weak. One common trope is that the President has to be able to act with dispatch and to speak with a unitary voice on behalf of the nation in international affairs. Thus any official statement about what counts as the capital of Israel could necessarily complicate negotiations with foreign nations on matters of matters of trade, war, and peace. Indeed, in United States v. Curtiss-Wright Export Corp., decided in 1936, Justice Sutherland, in unnecessary dicta, went to great lengths to insist that the President of the United States received his powers directly from the King of Great Britain, and need not brook any interference at all.

Nonetheless, the pesky treaty power and Congress’s power to declare war undermine this extravagant claim. Indeed, during the Korean War in Youngstown Sheet & Tube v. Sawyer, President Truman was rebuffed by the Supreme Court when he unilaterally sought to seize steel mills that he regarded as essential to the war effort when their production was threatened by labor disputes. Justice Jackson’s three-part test on presidential power is widely cited. It puts presidential power at its highest when Congressional authorization backs his position. The scope of that power is uncertain whenever Congress is silent on any particular matter. But it is at “its lowest ebb” when the President bucks a Congressional prohibition.

On this view, the President had the right to move in the field that Congress had left unoccupied in order to have the United States participate in foreign affairs. But once Congress speaks, checks and balances stymie unilateral presidential action. Justice Scalia elaborated on this argument by appealing to the original constitutional structure of divided power, which controlled before it was undercut by the New Deal’s expansion of the administrative state.

Justice Kennedy, however, took the view that past practice dominated any uncertain inferences from structure. Recall that Truman ran the entire recognition proceedings over Israel out of the White House. Consistently, every president from both parties had asserted strong control over foreign affairs. So Kennedy and his liberal colleagues used past practice to give the nod to a consistent President over a wavering Congress.

It is very hard to reach clear results whenever constitutional structure is at war with historical practice. The point is of real urgency because the acceptance of judicial supremacy in constitutional interpretation is based solely on practice, for the text is reasonably clear, in line with the historical understanding of the time, that all federal branches are equal and coordinate on matters of constitutional interpretation. It is equally clear that the Supreme Court’s decisions trump those of any and all state supreme court’s, as in the historical fight over segregation in the south. Dare we switch course after over two hundred years of practice that runs in the opposite direction?

One way to attack this question is to ask whether a reversal of the past practice would throw a serious monkey wrench into this nation’s structure. Getting rid of judicial supremacy over Congress, the President, and the states is too risky generally. But the stakes are not nearly as high with passport recognition. Justice Breyer wrote a one-paragraph opinion, in which he announced that he continued to believe that the whole matter was a political question that the courts should stay out of. The problem with that position is it gives no way to break the logjam if the President just chooses to disregard the congressional command. Is there any bargain that can be reached between the two parties that can resolve the impasse?

Regrettably, once we leave the political question doctrine behind, the constitutional trade-offs do not admit to an easy answer. The need for dispatch in foreign affairs is evident, but if the president is tyrannical or erratic, vesting large chunks of power in him is highly dysfunctional. Alternatively, what if Congress is divided, dilatory, and confused? The question then is which of these vices is greater? On balance, I would reluctantly side with the liberals (plus Justice Thomas) given the strength of the past practices.

Yet this conclusion does not go down easily. When the matter comes to waging wars and conducting diplomatic negotiations, the sad truth is that Congress wishes to lay low and let the President take all the blame when matters go wrong. In these cases, expedition of action seems to be preferable, so that the ideal response in general is to give broad authorizations to the President to deal with these conflicts. Yet these generalizations are dangerous. President Obama is the master of vacillation on foreign affairs, given his utter inability to formulate a coherent policy to deal with ISIS, Iran, and Iraq, not to mention the Israel-Palestine conflict.

So it is easy to see in Zivotofsky why the constitutional split emerged. All institutional choices involve either explicit or implicit tradeoffs. In dealing with most matters of domestic import, it is usually possible to develop a coherent theory of government powers and structure. The Framers did just fine when on individual rights they stressed the importance of limited government, strong property rights, and constrained powers of taxation and regulation, all within a federalist system marked by enumerated and divided powers in the national government.

But there are no easy global institutional judgments about foreign affairs, where discrete decisions count as much as general policies. In foreign affairs, structural constraints operate fitfully at best. James Madison rightly feared factions in Federalist No. 10. While it may be possible to write constitutional protections against debtor relief legislation, it is a lot harder to anticipate constitutionally the best structure for preventing nuclear proliferation or transnational cyber terrorism.

On foreign affairs, the gaps in the Constitution require some measure of cooperation between the Congress and the President to avoid costly and lengthy confrontations that do the nation little or no good. No amount of constitutional theory or interpretation can fill the void created by weak leadership at both the presidential and congressional level. 

*Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects.

Lies the Government is Telling You

Andrew P. Napolitano*

Judge Napolitano

Judge Napolitano

Last week, Republicans and Democrats in Congress joined President Barack Obama in congratulating themselves for taming the National Security Agency’s voracious appetite for spying. By permitting one section of the Patriot Act to expire and by replacing it with the USA Freedom Act, the federal government is taking credit for taming beasts of its own creation.

In reality, nothing substantial has changed.

Under the Patriot Act, the NSA had access to and possessed digital versions of the content of all telephone conversations, emails and text messages sent between and among all people in America since 2009. Under the USA Freedom Act, it has the same. The USA Freedom Act changes slightly the mechanisms for acquiring this bulk data, but it does not change the amount or nature of the data the NSA acquires.

Under the Patriot Act, the NSA installed its computers in every main switching station of every telecom carrier and Internet service provider in the U.S. It did this by getting Congress to immunize the carriers and providers from liability for permitting the feds to snoop on their customers and by getting the Department of Justice to prosecute the only CEO of a carrier who had the courage to send the feds packing.

In order to operate its computers at these facilities, the NSA placed its own computer analysts physically at those computers 24/7. It then went to the U.S. Foreign Intelligence Surveillance Court and asked for search warrants directing the telecoms and Internet service providers to make available to it all the identifying metadata -- the times, locations, durations, email addresses used and telephone numbers used -- for all callers and email users in a given ZIP code or area code or on a customer list.

The first document revealed by Edward Snowden two years ago was a FISA court search warrant directed to Verizon ordering it to make available to NSA agents the metadata of all its customers -- more than 113 million at the time. Once the court granted that search warrant and others like it, the NSA computers simply downloaded all that metadata and the digital recordings of content. Because the FISA court renewed every order it issued, this arrangement became permanent.

Under the USA Freedom Act, the NSA computers remain at the carriers’ and service providers’ switching offices, but the NSA computer analysts return to theirs; and from there they operate remotely the same computers they were operating directly in the Patriot Act days. The NSA will continue to ask the FISA court for search warrants permitting the download of metadata, and that court will still grant those search warrants permitting the downloading. And the NSA will continue to take both metadata and content.

The Supreme Court has ruled consistently that the government must obtain a search warrant in order to intercept any nonpublic communication. The Constitution requires probable cause as a precondition for a judge to issue a search warrant for any purpose, and the warrant must “particularly (describe) the place to be searched, and the persons or things to be seized.” Because this is expressly set forth in the Constitution itself, Congress and the president are bound by it. They cannot change it. They cannot avoid or evade it.

Probable cause is evidence about a person or place sufficient to permit a judge to conclude that evidence of a crime will probably be found. Both the Patriot Act and the USA Freedom Act disregard the "probable cause" standard and substitute instead a “government need” standard. This is, of course, no standard at all, as the NSA has claimed under the Patriot Act -- and the FISA court bought the argument -- that it needs all telephone calls, all emails and all text messages of all people in America. Today it may legally obtain them by making the same claim under the USA Freedom Act.

When politicians tell you that the NSA needs a court order in order to listen to your phone calls or read your emails, they are talking about a FISA court order that is based on government need -- not a constitutional court order, which can only be based on probable cause. This is an insidious and unconstitutional bait and switch.

All this may start with the NSA, but it does not end there. Last week, we learned that the FBI is operating low-flying planes over 100 American cities to monitor folks on the streets and intercept their cellphone use -- without any search warrants. Earlier this week, we learned that the Drug Enforcement Administration has intercepted the telephone calls of more than 11,000 people in three years -- without any search warrants. We already know that local police have been using government surplus cell towers to intercept the cellphone signals of innocent automobile drivers for about a year -- without search warrants.

How dangerous this is. The Constitution is the supreme law of the land. It applies in good times and in bad, in war and in peace. It regulates the governed and the governors. Yet if the government that it regulates can change it by ordinary legislation, then it is not a constitution but a charade.

Suppose the Congress wants to redefine the freedom of speech or the free exercise of religion or the right to keep and bear arms, just as it did the standards for issuing search warrants. What is the value of a constitutional guarantee if the people into whose hands we repose the Constitution for safe keeping can change it as they see fit and negate the guarantee?

What do you call a negated constitutional guarantee? Government need.

*Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution.

Make Soccer More American

Richard Epstein*

Richard Epstein

Richard Epstein

Football—or as we Americans call it, soccer—has been shaken to its roots with the recent FIFA scandal. It would be convenient to assign the blame to the greed or incompetence of certain individuals who hold high places inside of the organization. But that explanation leaves a lot out of the total picture.

Of course, some people are to blame. High officials in FIFA have been accused of taking bribes. Then there were the corrupt deals that resulted in the simultaneous selection Russia and Qatar to host the 2018 and 2022 World Cups respectively. And, of course, FIFA’s former president Sepp Blatter resigned in part because the pending investigations have yet to address the question of how much he knew of the corruption and even whether he was involved in it.

But the list of particular derelictions, however long it may be, takes the worm’s eye view of the subject. This cascade of errors does not happen by accident. It takes place in large measure because of the faulty governance structure inside of FIFA. The dangers here are obvious. The worldwide popularity of soccer generates huge sources of wealth over which there is no clear ownership structure. It therefore pays for all sorts of unscrupulous actors to work overtime to direct some of that cash in their own direction. The only possible counter to that problem lies in finding an internal constitution that puts in place safeguards against that eventuality.

One obvious solution is for the president of FIFA to be subject to a strict two-term limit on service in office. Rotation in office has long been one of the best protections against abuse. Next, the fact that FIFA operates under a “one nation one vote” policy makes it look like the dysfunctional United Nations without a Security Council. Votes are power, and when power is not distributed in accordance with the size of stakes, small nations can hold up large ones for a greater share of power and resources. There is no obvious fix for this issue, but surely FIFA should consider a more complicated institutional structure that gives the major (and I dare say less corrupt) nations greater control over its operations.

It would be wrong, however, to assume that the difficulties with FIFA stop at the institutional level. In the United States, the basketball and hockey playoffs have taken center stage. Anyone who watches all three sports will quickly realize that the defects in FIFA’s governance structure are not only felt in the boardroom, but also on the playing fields. As a game, I leave it to others to decide which sport they prefer. But as a set of game rules, as I have long argued, soccer is so sadly deficient that much has to be done to fix the sport. Much of the responsibility for the sad state of the rules lies with the Blatter. During the many officiating problems of the 2010 World Cup, he said that “uncertainty and subjectivity boost the sport.”

They actually do the exact opposite. Here are some of the most serious problems with soccer:

First, soccer is an underofficiated game. A soccer field is larger than an American football field, yet on the field the game has only one referee and two linesmen, each of whom patrols only one half the field from the sideline. Basketball uses three officials on a far smaller court. Hockey has two referees, two linesmen, and a video judge for goals. The thin officiating corps leads to all sorts of unnecessary errors that are apparent to every fan who has the benefit of replay equipment. Doubling the number of officials should reduce the number of errors. Having a video camera review of all apparent goals should reduce the number of times that good goals have been disallowed and bad ones counted.

Second, soccer has an atrocious penalty structure for various infractions. Its penalties are either too severe or too lax. Often a free kick does nothing to help a team, even if it comes as a result of a serious infraction. Yet, on the other hand, yellow and red cards are usually far too severe if they result in the expulsion of a player, without the opportunity of substitution. The situation gets even worse whenever yellow cards are carried over from one game to another. In every game all the players should have the benefit of a fresh start.   

In this regard, the hockey rules are far superior. Each infraction is treated as a discrete event, where minor penalties require a team to play short-handed for two minutes, after which the player can return to the ice. These are complemented by major penalties that last five minutes. During that time, the short-handed plays open up strategic possibilities that are not available when the teams are at equal strength. Double penalties make the game more open still. When an individual player is expelled from the game, another player may take his place after the penalty period expires. There is no situation where an ejection for a red card or a second yellow card in the early minutes of the game leaves a team short-handed for the rest of the game.

Not having penalties proportionate to the offense creates perverse incentive effects on players and officials alike. The definitions of all infractions, especially those that turn on intent, are often subject to disputation. Players will try to inch closer to the line, daring the referee to respond with the nuclear option. Lower the stakes, and referees will be less reluctant to impose a penalty that now fits the offense. Players will respond by avoiding silly plays that can subject them to penalties.

Another great weakness in the penalty structure comes from penalty kicks for various offenses, some quite trivial, inside the penalty area. Here the punishment is too severe for the crime, as it makes no sense to have a tied game where one team gets a hard-earned goal and the other a dubious penalty goal. Two corrections seem in order. The more modest of these is to move the penalty spot back a meter, which would reduce the likelihood of a successful conversion.

The second is to change the scoring system to bring it in line with the rules of basketball, which awards one point for a foul and two or three points for a basket. I doubt that anyone could make the case for a three-point line in soccer, but it would make eminently good sense to allow two points for a regular goal and only one for a penalty. Getting the right relative weights should lead to fairer outcomes and fewer draws, and reduce the enormous stress from penalty calls. Soccer made a major improvement when it decided to award three points for a win and only one point for a draw, precisely because it improved the incentive structure for the game. The same should be done here.

Finally, soccer should consider the adoption of the same free substitution rules that are allowed in basketball, hockey, and football to replace its current regime that allows for only three one-time substitutes into a game. It is evident from watching the 2014 World Cup that the fresh legs of a new player matter, especially for games that go into overtime. The entire pace of the game would pick up if teams were permitted to make unlimited substitutes during any timeout. Any player who is taken out of the game should be allowed to return at the next time out without limitations.

The traditional soccer purist claims that soccer’s substitution rules put a premium on athletes’ conditioning, which is of course an attribute to be prized. But anyone who has watched the helter-skelter pace of basketball and hockey knows full well that the athletes in those sports are highly conditioned as well. The free substitution rules thus have two huge advantages over the current system.

The first of these relates to the rate of play. No one can run or skate at full tilt for more than fifteen seconds. Even trained runners in the 200 meters start to die in the last 50 meters of a race. The world record for 400 meters (43.18 seconds is well over twice (2.25 times) that for 200 meters (19.19 seconds). The rate of decline is ever higher between the 400 meters and 800 meters (one minute and 40.19 seconds), where that ratio rises to 2.34.

Soccer games last 90 minutes, and no superbly conditioned athlete can keep up maximum pace for more than a small fraction of that time, so they have to loaf a bit to regain their strength. Allowing unlimited substitutions would speed up play, as fresh legs would be met with fresh legs throughout the game. In hockey, continuous line changes usually take place every minute, which allows for the furious intensity of the game. In basketball, where there are more rest periods, players have more opportunities to recharge.

Every team knows that it has to rest its stars in order to succeed, which in turn puts a greater premium on it finding back-up role players to fill those critical minutes. The rate of injuries would likely go down as well, as players, especially in overtime games, would not be pushed to the brink of exhaustion and beyond, thereby jeopardizing their ability to play in future games.

The second advantage relates to the greater role of coaches, who would now be faced with more strategic choices on whom to substitute in, when, and for how long. Match-ups between star players could be made more explicit. Players who are a bit lost could be called over to the sideline for a bit of coaching. A team that is behind could introduce more attacking players into the mix. A team that is ahead could rely more heavily on defensive specialists. At the end of the game, the overall speed can increase when the starters come back in for their final push.

But will these changes really work? The best way to find out is to introduce them gradually, first in friendly matches and then in serious competition, which should allow for an orderly transition. But the time to get started on this transformation is, well, now. None of these changes alter the essential characteristics of the game or reduce the level of skill that is needed to excel in it. In all likelihood, what the rule changes would do is to improve the overall level of play on the field at any given time, which can only increase fan enjoyment of the sport. Now that Sepp Blatter is gone, the new management should rethink the rules of the game from the ground up. Better governance in the boardroom should lead to a better product on the field.

*Considered one of the most influential thinkers in legal academia, Richard Epstein is known for his research and writings on a broad range of constitutional, economic, historical, and philosophical subjects.

Neither Freedom Nor Safety

Andrew P. Napolitano*

Judge Napolitano

Judge Napolitano

In their continuous efforts to create the impression that the government is doing something to keep Americans safe, politicians in Washington have misled and lied to the public. They have violated their oaths to uphold the Constitution. They have created a false sense of security. And they have dispatched and re-dispatched 60,000 federal agents to intercept the telephone calls, text messages and emails of all Americans all the time.

In the process, while publicly claiming they only acquire identifying metadata -- the time, date, location, duration, telephone numbers and email addresses of communications -- they have in fact surreptitiously gained access to the content of these communications.

On June 1, one of the three claimed legal authorities for all this, Section 215 of the Patriot Act, expired, as Congress was unable to agree on either its reinstitution or the enactment of a substitute. At the time that Section 215 was about to expire, President Obama, Attorney General Lynch and FBI Director Comey warned that the NSA’s computers would go dark and the American public would be at the mercy of our enemies. Their warnings were nonsense.

The NSA is a military entity that utilizes the services of military computer experts and agents, employs civilians, and hires companies that provide thousands of outside contractors. After nearly 14 years of spying on us -- all authorized by a secret court whose judges cannot keep records of what they have ordered or discuss openly what they know -- the NSA now has computers and computer personnel physically located in the main switching offices of all telecom and Internet service providers in the United States. It has 24/7 access to the content of everyone’s telephone calls, emails and text messages.

The data amassed thereby is so vast that the government cannot sift through it quickly or effectively enough to stop such notorious events as the Boston Marathon bombings, the Ft. Hood massacre and the attempted massacre last month outside of Dallas. The Justice Department acknowledged this last month when it revealed that all this spying has not succeeded in stopping any terrorist plots and has not aided any federal prosecutions of terrorism.

Then why do it? Because the feds want to calm American nerves by giving the impression that they are doing something -- even though we know that they know that what they are doing fails to keep us safe. They are giving us a false impression. But they owe us the truth, not falsehoods designed to make themselves look like they are doing what they claim. Their spying has failed to enhance our safety.

It also has failed to protect our freedoms. The Constitution requires probable cause as a precondition for all search warrants. That is a level of evidence about the place to be searched or the person or thing to be seized sufficient to induce a judge to conclude that a crime probably has been committed. Without this probable cause requirement, nothing would stop the government from searching and seizing whatever it wants. Yet that is where we are today. The NSA’s unconstitutional standard of “government need” reinstitutes the general warrants -- search where you wish and seize what you find -- which the Fourth Amendment was written to prohibit.

Both the Patriot Act and the Freedom Act, the substitute law enacted by Congress, do away with the probable cause requirement. Both of those laws permit the FISA court to issue general warrants based on the government’s needs, rather than probable cause. It is the government-need standard, which is no standard at all, that has resulted in spying on all persons all the time.

When Section 215 of the Patriot Act expired, the NSA’s legal (yet unconstitutional) authority to spy did not. The propaganda that its computers were shut down is false. Section 702 of the FISA law and President Bush’s October 2001 executive order were and are still valid, and both have been interpreted to unleash the NSA.

Section 702 permits warrantless surveillance of Americans who speak with foreigners, and the NSA has gotten FISA warrants to intercept the calls of the folks to whom those Americans speak, to the sixth degree. That alone encompasses all persons in the United States. Bush’s executive order was given to all military intelligence agencies -- of which the NSA is but one. It instructed the military to intercept the calls and emails of whatever Americans it needs to listen in upon to enhance safety. That executive order still stands. This is why the hand wringing and false claims that the NSA computers went dark is untruthful. The computers violate our privacy and assault our liberty and fail to enhance our safety, but they are not dark.

Last week, one of the pro-spying politicians was clever, even cute, when he issued the one-liner: “You can’t enjoy civil liberties from a coffin.” His statement was a craven articulation of failure. The government’s job is to keep us free and safe. If it keeps us safe but not free, it has failed to do its job. Today it does neither. I suggest to him Patrick Henry on this: “Give me liberty or give me death.”

Which one-liner better embodies American values, history and traditions?

*Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution.