Declaring War on ISIS

Richard Epstein*

RICHARD EPSTEIN

RICHARD EPSTEIN

There are currently two battles going on in the effort to—pick your favorite verb—contain, degrade, or destroy the new Islamic State, or ISIS, which has cut a wide swath through much of Iraq and Syria. The first is the military battle. ISIS is not just an occupier of territory, but a terrorist operation. It has slaughtered untold thousands of innocent persons and threatens to bring terror far outside the Middle East. Yet the American response, which I regard as woefully insufficient, has been to fight a prolonged war solely from the air, which may stem further advances, but cannot dislodge ISIS from its current strongholds.

Then there is the constitutional battle at home. Does the President have the power to wage war on ISIS unilaterally, or must he go to Congress for the same kind of approval that George W. Bush received when he entered into combat over a decade ago in both Iraq and Afghanistan? On this issue, the bulk of consensus, from both the left and the right, has been strongly against the President’s decision to proceed without congressional authorization. The argument has a lot of legal punch. It is pointless to say, as the President’s Office of Legal Counsel said in connection with the Libyan intervention of 2011, that what turned out to be a prolonged military intervention did not count as a war. Yes, we were shooting at enemy forces from the air, and they were not shooting back from the ground, but still: One-sided wars are still wars, and wars are wars whether they are over quickly or drag on indefinitely.

With Libya, the President tried to avoid the requirements of the War Powers Resolution of 1973 (WPR), which became law when both the House and the Senate overrode the veto of then–President Richard Nixon. On that topic, of course, calling the law aresolution is tangible evidence of its uneasy legal status, given that an indignant Congress chose unilaterally to impose its will on a reluctant President. One does not have to be a constitutional purist to think that dressing up ordinary legislation as a resolution ,is not the appropriate way to alter the constitutional distribution of powers between the President and the Congress.

Try as it did, the WPR did not offer a clean solution to the difficult problem of when the President was authorized to declare war. For starters, it had to give the President sufficient powers to respond to “a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.” Not included on this list is the beheadings by ISIS of American journalists overseas. Nor does the resolution appear to give the President unilateral authority to respond to a threatened attack, no matter how imminent or serious. On this point, the WPR amounts to legislative overkill, more concerned with the distribution of powers within government than with the security of the nation as a whole. The ability to respond to national emergencies should not be so narrowly defined, for it hardly makes sense to force the President to stand idly by, knowing that when some actual attack comes it will be far more difficult to fend off. Exactly how far anticipatory defense should be allowed is, of course, a question that has been debated for centuries, which is why so many hard questions of constitutional law dissolve, unavoidably, into an uneasy mixture of judgment, comity, and self-restraint.

The situation does not get any easier with the other two central provisions of the WPR, which, in the absence of a declaration of war or the authorization for the use of military force, limits to 60 days the period that American forces can be committed to war, with a grace period of 30 days to allow for their orderly withdrawal. But again, note the incongruity. Sixty days can be enough time to allow for the completion of a military action. Yet, by the same token, 60-days may not be enough time, which puts the President in an impossible position if forced to begin a withdrawal of forces when the military conditions on the ground do not permit it.

In principle, the President might be able to declare a second emergency to restart the clock, with due notification to Congress. Such decisions of course could be mere ruses to justify lawless acts of the President, or they could be prudent responses to unanticipated reversals in the field or to the entry of a new nation or group into the conflict. Yet the WPR contains no device that allows for the resolution of these disputes. The courts have, of course, decided to wash their hands of this entire matter, which is for the best, because judicial proceedings move at a glacial pace relative to the genuine difficulties that take place on the ground.

It does not take much imagination to see the serious limits of the WPR in dealing with the current ISIS situation. Matters only get worse if one places the WPR in the context of foreign diplomatic efforts. It is settled on all sides that only that President is capable of entering into negotiations with foreign nations over the formation of alliances. Congress could never speak with one voice on the question. Right now, President Obama is attempting negotiations with a large number of nations who are skittish about their own precarious positions. One thorny question is how to get other nations to commit ground troops when we are unwilling to commit our own. A second is to figure out how to intervene in the Syrian morass without doing more harm than good, given the shifting roles of ISIS, the Assad government, and the Khorasan group, which may or may not be affiliated with al-Qaeda.

Against this background, critics of the President are having nothing short of a field day. Perhaps the most outspoken critic is Yale Law School’s Bruce Ackerman who recently denounced both the President and the Congress. The congressional lawmakers, he laments, left town for the mid-term election campaign “without fulfilling their most solemn duty to the American people,” which was to face up to their obligations to act pursuant to their authority under the WPR. The President, he asserts, did no better in failing to justify his power to extend the fight against ISIS into Syria. Both Ackerman and others have taken great pains to explain why the 2001 Authorization for the Use of Military Force (AUMF) does not apply to ISIS because “it was not an organization that planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001.” After all, ISIS was a competitor to al-Qaeda, and not its extension.

In principle, I am pleased to see the powerful chorus of criticism against the President’s power grab. Yet I am also relieved that the WPR will fail to achieve its stated goal of forcing Congress to act or getting the courts involved if it does not.

On the positive side, there is a desperate need to prevent any president from initiating major conflicts without a congressional go-ahead. George W. Bush was right to seek authorization from Congress to initiate the attacks in Iraq and Afghanistan given that the escalation started from a zero baseline. The clear break between the status quo ante of non-intervention and some future major conflict made it sensible and possible for Congress to act.

The situation today is, alas, much messier. It is very hard to distinguish those actions in Syria that are not spillovers from the Iraq War. It is all too easy, unfortunately, to spend lots of time explaining the need for congressional action, but it is far harder to justify a nation sitting idly by while mass slaughter takes place overseas that poses a serious threat to the United States and its allies. It is equally difficult to expect any president, including one as indecisive as Barack Obama, to negotiate delicate agreements with reluctant friends and possible enemies, unless he can make good on his deals, which could not happen if all potential alliances were subject to congressional approval sometime down the road. Nor does it make sense to block moves against ISIS because it has broken with al-Qaeda. It is all too possible that the two organizations may, or perhaps have, established some accommodation that might bring the AUMF back into play.

Everyone, I think, senses this imbalance. In one unguarded remark, Ackerman notes that a full-scale attack on Obama’s new military intervention would “deeply erode the constitutional legitimacy of the ongoing ISIL campaign.” Ackerman remarks that in the 40 years since the WPR’s enactment, Congress has never attempted the “extraordinary procedure” of following the complex requirements of the WPR to the letter. What he does not do is to ask why not. The answer, I fear, is that the WPR procedures are just too cumbersome today, which both the Congress and the President realize.

The constitutional landscape would be very different if President Obama had pushed ahead in the face of an explicit congressional command to disengage in Iraq and Syria. But Congress won’t take this step so long as the risk of attack from ISIS to United States citizens at home and abroad is real. It will not undertake any action to undermine the military and faltering rescue efforts in the Middle East. And it need not take these actions precisely because an entire nation is keeping pulse on the current events. There is no evident abuse of power because the political check has held.

It is precisely because of the ambiguous nature of the entire foreign enterprise that we should all be grateful that scholars like Ackerman are willing to stand up to both the President and Congress. Paradoxically, they should fail in the short run because their greatest contribution lies in the long run, by helping to establish a workable political equilibrium in which Congress holds its legal fire in the midst of tumults in which it can do no good, but remains ready to stop fresh acts of presidential adventurism.

I am certainly no unqualified defender of presidential power. Indeed, I still think that President George W. Bush improperly expanded his position as Commander-in-Chief to run around the congressional limitations contained in the Foreign Intelligence Surveillance Act of 1978. But surveillance and military operations work on different time scales, a fact which is fatal to ignore. My late father always said that in times of crisis “we have to learn to rise above principle.” Sadly, this is one of those occasions. 

*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.

Freedom Friday: Best Links of the Week

Sen. Mike Lee and Sen. Marco Rubio outline a pro-family, pro-growth tax reform.

Jonathan Adler and Michael Cannon answer critics and encourage immediate action on King v. Burwell.

Harry Enten argues that Justice Ruth Bader Ginsburg would probably be confirmed today.

Frederick Hess and Chester Finn Jr. note the disgusting ideological slant of the College Board's Advanced Placement U.S. History curriculum.

Ilya Shapiro on Eric Holder's tenure.

Nick Gillespie on Eric Holder's legacy.

 

Mistakes of the Past Are Back

Judge Andrew P. Napolitano*

JUDGE NAPOLITANO

JUDGE NAPOLITANO

What if the American invasion of Iraq had nothing to do with weapons of mass destruction? What if whatever weapons of mass destruction Saddam Hussein once had were sold to him in the 1980s by American arms dealers with the express permission of the U.S. government? What if he no longer had them when the U.S. invaded? What if the principal reason for invading Iraq was to depose Hussein because he tried to kill President George H.W. Bush, whose son ordered the invasion?

What if another reason for the invasion of Iraq was to enable western-allied governments to control or receive oil from Iraq? What if the Bush administration lied to the American people, Congress, the U.N. and governments of other nations in order to persuade them to support the invasion? What if the Bush administration knew all along that Hussein posed no threat to the stability of the Middle East or the freedom or security of the U.S.? What if Hussein was, in fact, a stabilizing force in the Middle East?

What if the American invasion violated the moral precepts of the Just War, precepts accepted in Judeo-Christian teaching and culture for more than 500 years, and that have underpinned international law for more than 100 years?

What if the invasion killed 4,500 Americans and 650,000 Iraqis, and injured 40,000 Americans, displaced 2 million Iraqis and destroyed more than $100 billion in Iraqi property? What if that invasion, which cost more than one trillion borrowed U.S. dollars, degraded the Iraqi military?

What if the American invasion sent many members of the Iraqi military underground or into the arms of anti-government resistance fighters? What if the American invasion also produced a fierce resistance and determined will to expel the American invaders?

What if the Middle East has been the scene of a 1,000-year-old religious dispute between two branches of Islam: the Sunni and the Shia? What if under Hussein the Sunni persecuted the Shia and also persecuted a third group in that region, the Kurds? What if Hussein used the weapons of mass destruction that American arms dealers sold him to gas thousands of Kurds? What if the Shia now persecute the Sunni?

What if Iraq is not a country of people with common cultures and interests and generally accepted borders, but rather an amalgam of warring groups cobbled together by British and American diplomats? What if only a strongman like Hussein -- however evil and ill suited for government by Western standards -- can keep peace and stability in an artificial country like Iraq?

What if al-Qaida was not present in Iraq before America invaded? What if the American invasion drew al-Qaida fighters to Iraq from Africa and other parts of the Middle East? What if the American invasion produced a violent stew of resistance to and resentment of American-induced violence in Iraq?

What if that stew -- which has been known by different names, but is now called ISIS -- included not only fighters from all over the Middle East and Africa, but also from the current Iraqi military and from Hussein’s military, which U.S. forces thought they had defeated or dispersed? What if many of those former Iraqi military forces brought their American-made and American-paid-for military equipment and their American military training with them into ISIS?

What if, in the 11 years since the U.S. invaded Iraq and in the 13 years since the U.S. invaded Afghanistan, American troops have been training new Iraqi and Afghan armies? What if during that time of training many of those U.S.-trained troops joined the ISIS resistance? What if the U.S.-trained troops that stayed in the Iraqi military are really a rag-tag band of second-rate soldiers who are unable to defend the Iraqi government against ISIS? What if President Obama’s military advisers have told him this?

What if some of the training has taken place in the United States? What if some of those trainees left their instructors, fled a U.S. Army base and were at large in the U.S. with their weapons?

What if under the watch of the U.S.-trained Iraqi soldiers one-third to one-half of the landmass of Iraq has fallen to ISIS? What if ISIS -- though barbaric and ruthless and decidedly undemocratic -- has established governments in the lands it conquered? What if those governments -- though terrifying to those who would resist them, as Hussein was -- have financed schools and hospitals and operated as the only government in the land, as Hussein did? What if those governments are selling oil to finance themselves, as Hussein did?

What if the forces in the U.S. who believe the military is best when it is fighting are again beating the drums for war in Iraq? What if Obama’s present plans are to arm and train moderate Syrian rebels and induce them to fight ISIS on the ground while the U.S. provides air cover? What if the U.S. really cannot tell the moderate Syrian fighters from the fanatical Syrian fighters? What if they are one and the same fighters, whose moderation or fanaticism changes with the politics and military needs of the moment?

What if American empire building and military adventurism and going about the world looking for monsters to slay have caused this mess? What if the American government refuses to recognize that? What if the United States is about to embark on the same thing all over again? What if all this has not made a single American freer or safer? What if all this has made the American government paranoid and the American people less free and poorer and more vulnerable?

What if the government here cannot recognize its failures? What if a people who cannot understand the mistakes of the past are doomed to repeat them? What do we do about it?

*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 Vogue of "Social Responsibility"

Richard Epstein*

RICHARD EPSTEIN

RICHARD EPSTEIN

In September 1970, the late Milton Friedman published a bold manifesto entitled “The Social Responsibility of Business is to Increase its Profits” in the New York Times Magazine, where he argued that businesses do not need to engage in various charitable or public-spirited activities, even those that generally meet with approval from shareholders. The best defense of the Friedman thesis is that any discrete corporate effort to advance collateral ends will not enjoy the unanimous consent of all corporate shareholders, so that the contribution operates like an implicit tax on dissenting shareholders. The better track is for the corporation to make the shareholders rich, so that they in turn can embark on their own charitable operations, without having to bind their fellow shareholders.

Friedman’s overall thesis is subject to several lines of attack. The first difficulty is that no one quite knows what counts as a charitable gift. Thus a corporate giving campaign could easily be regarded as a device to promote corporate good will by establishing a favorable image for the company, created by doing good deeds unrelated to its direct business interests. Virtually any charitable gift could fit into this category, at which point it becomes a business judgment as to whether these expenditures are the best way to woo future employees, suppliers, and customers. The exception, in other words, can swallow the rule. 

The second criticism insists that it is not the job of any economics or law professor to tell corporations how to run their businesses. That decision should reside in each corporation with its distinct shareholders. Nothing prevents a corporate charter from allowing charitable giving. All potential shareholders are then on notice of its powers and prospects, and can buy or sell shares based on whether they share the corporation’s fundamental policy choice. If shareholders think that corporations make better and more informed donors than they do individually, then it is perfectly rational for them to take the risk that some of these corporate gifts will not be to their individual liking. It becomes a question of trading one risk (individual ignorance of the charitable universe) against another (corporate activities gone astray). The market can handle this problem like so many others.

Assuming that corporations have good reasons to engage in charitable giving, the harder question asks how a corporation should best engage in these activities. This issue has been raised as of late in connection with the otherwise technical questions of corporate supply chain management. This esoteric field asks how corporations can best organize their complex chains of supply. The objective of this task is to ensure that the firm gets the right goods in the right quantities to precisely the right place and at the right time, with the right quality for just the right price. This juggling act presents a massive challenge because the system only works well if all of its discrete pieces are in alignment. A single break can stop the entire process. Knowing this, sound chain managers may use procurement strategies that involve multiple chains. 

Additional efficiencies may be added if a firm has long-standing contracts with two or more suppliers so that one can pick up the slack when the other goes down. Further efficiencies can be gained if multiple competitors purchase from the same supplier, where each of them can share the benefits of the lower average costs that can come from larger production runs.  

The success of supply chain management depends on the ability of the firm to assure the quality of its outputs at each point, preferably by direct inspection at the critical stages of the process. Especially when overseas operations are involved, it is virtually impossible for a distant American firm to keep tabs on the conditions internal to the facilities that produce components in its supply chains. Only in rare instances is it cost effective to use direct inspection of foreign facilities to monitor the conditions under which the product is made. 

Unfortunately, government efforts to impose socially responsible regulation in a top-down manner can easily go awry, by limiting the ability of a firm to develop efficient supply chain practices, which might for a whole host of reasons require rapid shift from one supplier to another, perhaps in response to unanticipated regulation from the host state. Diversification of supplies is often the best response to sovereign risk. 

The point here is not that corporations should cease socially-responsible activities, but rather that they should organize them independently of their production efforts. Thus if a corporation wants to show good will to a developing country, either by voluntary choices to improve worker conditions or to make charitable gifts entirely apart from the core business operations, it should be allowed to do just that.  It may well be better, for example, to send aid to local schools than to enter into inefficient agricultural contracts. 

Recent legislative and administrative developments have put this standard supply chain model under serious pressure. New regulatory programs seek to impose on American firms obligations to monitor the labor conditions of their overseas contractors and subcontractors in order to prevent or reduce the likelihood of disasters such as the collapse of the Rana Plaza manufacturing plant in Savar, Bangladesh, where 1,120 were killed when the commercial building collapsed. No one can defend the dangerous construction and maintenance practices that led to the massive loss of life, but it is much more difficult to figure out what should be done to control these behaviors. The ideal social response is for local governments to monitor these practices directly. Properly done, local regulatory efforts should produce net benefits to workers that should offset any wage loss attributable to higher construction and inspection costs, wholly without American involvement at a distance.

Yet the discussion quickly enters the world of second-best regulation, given the total lack of confidence that everyone has in local regulation. Long after Milton Friedman wrote his manifesto, modern business began treating supply chain management as “Imperative for Global Corporations” which generates legal as well as moral obligations. The hard question is how best to design this oversight mechanism. One device, adopted in California’s Transparency in Supply Chains Act of 2010, relies on disclosure that requires all firms doing business in California with over $100 million in world-wide receipts to explain what steps, if any, they have taken to “eradicate slavery and human trafficking from their direct supply chains for tangible goods.”

The difficulties with this system are twofold. First, the term “direct” gives no indication as to how deep down the supply chain a given firm should go to meet this obligation. Second, it is not clear how any firm could conduct the necessary audits and inspections to ensure that remote suppliers comply with these obligations: it is all too easy for products made in a non-compliant plant to be surreptitiously sold through the offices of a compliant firm. 

The good news is that the sole sanction under the California Act is an action for “injunctive relief” brought by the California Attorney General. The bad news is that nothing in this act explains what should be done if the firm overstates its efforts to deter local abuses. Do these deficient disclosures become the basis for actions for fraud and non-disclosure under some separate common law or securities law cause of action that operates outside of this Act? 

Ironically, it is doubtful that any system of mandatory disclosure is needed to deal with this information problem. It is clearly the case that firms who do take effective steps to secure worker welfare in foreign countries can, wholly without regard to the California Act, make voluntary disclosures of their own efforts to improve local working conditions, letting consumers draw whatever inferences seem fit from the silence of their competitors. These firms can bond themselves by indicating the damages they are prepared to pay, and to whom, in the event that their representations prove to be false.

If disclosure measures are of uncertain worth, stronger sanctions, such as those found in the September 2012 Presidential Executive Order “Strengthening Protections Against Trafficking In Persons in Federal Contracts” could turn out to be downright mischievous. The Executive order begins by reaffirming its “zero tolerance” policy with respect not only to sex trafficking, but also “the recruitment, harboring, transportation, provision, or obtaining of a person for labor or services, through the use of force, fraud, or coercion, for the purpose of subjection to involuntary servitude, peonage, debt bondage, or slavery.” The unstated sanction for breach of the Executive Order is the cancellation of present contracts or the inability to acquire future ones. 

The risks of this strategy are substantial. The first danger is that of mission creep, such that “using misleading or fraudulent recruitment practices during the recruitment of employees” could fall within the scope of the order, wholly without regard to sex trafficking or involuntary servitude. The second risk is that the extension of these policies several layers down the supply chain makes departures from the policy virtually inevitable. The United States government does not have the resources to systematically enforce this policy, which makes it ultimately a matter of discretion as to which firms face sanctions and which do not. That selective enforcement of any open-ended obligations does not, as the executive order insists, “increase stability, productivity, and certainty in Federal contracting,” but is likely to have the exact opposite effect on private contracting behavior, by inducing private efforts to have the United States direct its enforcement activities to other firms.

The effort to control abuse overseas by imposing obligations on head contractors to supervise their remote subcontractors is a bit like pushing on a string. The locus of the enforcement action is too far removed from the site of the abuses to do that much good. Indeed, given the obvious inefficiencies associated with both of these enforcement schemes, it is appropriate to ask the public choice question, namely, whether the named beneficiaries of these programs are the actual beneficiaries. 

On that question, there has to be more than a modicum of skepticism. There is little doubt that any legal regime that hits American companies for sins overseas will increase the cost of doing business in those locations. It is hardly clear that these shifts will ultimately benefit the vulnerable workers who are the targeted populations for these measures. Instead, the higher costs could easily lead American firms to abandon foreign markets where the plight of local workers is most desperate, at which point the prime beneficiaries of these programs are the domestic firms for which any inspection, disclosure, or audit obligations are far less onerous. 

It is too soon yet to see how these conflicting forces will play out, but it is at least possible that the actual consequences can imitate those that Benjamin Powell has demonstrated with his alternative history of sweatshops in the global economy. More stringent enforcement drives vulnerable populations underground, improving the position of domestic firms and their higher-paid, and oft-unionized, workers. The law of unintended consequences does not stop at the American border, for the effort to enforce ethical obligations through law could easily hurt the very people they are meant to help.

*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.

Freedom Friday

Obamacare's mandates are becoming due for millions of Americans, and many are being notified that their insurance has been cancelled.

In a move that should thrill libertarians, Apple's Tim Cook announced that the iOS 8 update will increase security to the point that not even Apple will be able to access data on your device, even when compelled to by law enforcement with a search warrant.

Congress passed a continuing resolution that will maintain funding for the government for ten weeks beyond September 30th. Some elements that are gaining attention are the fact that the resolution fully funds Obamacare and also authorizes the use of federal funds to arm Syrian rebels.

The Institute for Justice has filed a cert petition that could reaffirm the canonical U.S. v. Carolene Products conception of the rational basis test, allowing litigants to challenge the constitutionality of a statute predicated upon the existence of a particular state of facts by demonstrating that those facts no longer exist.

Despite pleas from many Libertarians and free-market supporters, including our own Editor-in-Chief, the House voted to extend the Ex-Im bank's charter to June 30th, 2015.

Would a modified independent counsel statute be an improvement to current checks on the executive branch?

New York Times columnists Nicholas Kristof and Thomas Friedman urge caution in the nation's response to ISIS.

Finally, as Congress and the President move the country closer to war, consider the wisdom of Ron Paul in 2012:

More Unlawful Presidential Killing

Judge Andrew P. Napolitano*

JUDGE NAPOLITANO

JUDGE NAPOLITANO

As the debate rages over whether the president needs congressional authorization for war prior to his deployment of the military to degrade or destroy ISIS, the terrorist organization that none of us had heard about until a few months ago, the nation has lost sight of the more fundamental issue of President Obama’s infidelity to the rule of law.

On the lawfulness of his proposed war, the president has painted himself into a corner. Last year, he quite properly recognized that the Authorization for Use of Military Force (AUMF), a statute enacted by Congress in 2002 to permit President George W. Bush to use the military to track down, capture, degrade or kill all persons or organizations that planned the attacks of 9/11, cannot apply to organizations that did not exist at the time of 9/11, of which ISIS is one.

That leaves the president with two remaining alternatives. One is the War Powers Resolution (WPR), a statute enacted by Congress in 1973 to limit presidentially ordered military invasions absent congressional assent to 180 days or fewer. But the WPR is unconstitutional, as it consists of Congress giving away to the president express authority to declare war, which the Constitution delegates to Congress. The Supreme Court has prohibited such giveaways of core powers and responsibilities from one branch of the federal government to another.

Even if Obama decides to rely on the WPR, and expects that no federal judge will interfere with that decision, his military advisers have told him he cannot achieve his objective in 180 days. They also have told him he cannot achieve his objective by the use of air power alone.

The remaining mechanism for starting a war is to follow the Constitution by seeking a congressional declaration of war. But Obama has not yet asked for such a declaration. Why not? No doubt, he has two fears. One is that Congress will impose restrictions on the location and duration of hostilities, unlike the AUMF, which is open-ended. The other is that he will disaffect his loyal political base by doing what he promised he would never do: bring the country into another offensive war in the Middle East.

In 2008 and in 2012, Obama ran as a candidate and an incumbent determined to end American military involvement in the Middle East, not increase it. Hence his promise, by now made many times, that he will not introduce ground troops into this war. Apparently, just as when he bombed Libya into chaotic instability in 2010, he does not consider bombs an act of offensive warfare.

But he does consider the use of boots to be an act of war. When the president promises no ground troops, note the phrase he uses: “No boots on the ground.” This is a term of art that apparently has different meanings to different folks.

There are already more than 1,000 pairs of American military boots on the ground in this effort to destroy ISIS. Yet, because they are not yet directly engaged in the use of violence in pursuit of ISIS fighters (they are training others to do so or finding targets to destroy by air), or because they are Special Forces and thus out of uniform (but no doubt armed and violent and wearing boots), the president feels he has a clear conscience when he says there are no boots on the ground.

When he says that, he means, “There is no one in an American military uniform shooting from the ground at an enemy target” -- but there are military personnel in uniform on the ground, and there are military personnel out of uniform shooting ISIS fighters. Is this hair-splitting language consistent with the president’s moral obligation to be truthful to us?

In another deceptive move, Obama announced on Monday that the operation against ISIS, whether authorized by Congress or not, will be directed by retired Marine Corps General John Allen. This is a novel use of government assets, as Allen is no longer a part of the Pentagon and thus not subject to the military chain of command. Apparently, the president does not trust his military advisers, whose advice he has repeatedly rejected, to run his war. Is the White House planning to run this war directly as LBJ did in Vietnam? Is the State Department? How can a civilian who is not the president command military troops?

On Monday of last week, the White House announced that in its pursuit of ISIS, the U.S. will go wherever it finds ISIS targets, and if ISIS hides in Syria and the government of Syria does not permit U.S. jets to use its airspace, the U.S. will attack Syria. That sounds like Russian President Vladimir Putin in the Ukraine.

Attacking Syria because its government denied the U.S. airspace would be an unprovoked and unlawful act of war that would probably provoke Putin. Congress rejected declaring war on Syria just a year ago. If it does so now, there would be no lawful or moral basis for such a declaration, as Syria is a sovereign country, lawfully entitled to control its airspace, that poses no present threat to American freedom or security. The U.S. can no more legally commandeer Syrian airspace than Syria can commandeer ours.

Something is amiss here. Last year the president wanted to help ISIS indirectly by degrading the Syrian military. Now he wants to help Syria indirectly by degrading ISIS, but only if Syria stays out of our way. And he is prepared to violate the Constitution, break the law and lie to the American people to achieve his purposes.

Why all the unlawfulness, when he could and should leave these disputants to their own devices and keep the American military at home for genuine defensive purposes?

*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. 

America Cannot Extend the Ex-Im Bank Charter

Thomas Warns*

Deep within the United States federal government lurks an independent agency that functions as the United States’ official credit agency. The Export-Import Bank (Ex-Im Bank) was chartered to insure and finance foreign purchases of U.S. goods when customers large and small were unwilling or unable to accept the accompanying credit risk. The Ex-Im Bank website claims that it does not compete with private institutions, but instead fills gaps in the private credit market; they also boast a profit of $1 billion over the last year and $2 billion over the last five. One could ask how it is possible to claim that the private credit market would not compete with the bank for that profit, but that would imply that the Ex-Im bank’s website was inaccurate.

The Ex-Im bank has survived far longer than intended.

The Ex-Im bank has survived far longer than intended.

The Ex-Im bank’s charter is due to expire at the end of this month, reigniting debates over whether or not it should exist in the first place. The bank was a creation of the New Deal, when credit was particularly difficult to get for companies that wished to import goods from the U.S. Like many creations of the New Deal, however, the bank soldiered on long after the Great Depression ended, and morphed into a monster from a Mary Shelley novel (other Franken-programs exist to this day, such as Fannie Mae and the NLRB).

How does the Ex-Im bank work? When foreign companies looking to buy U.S. goods are rebuffed by private banks, the buyers can seek help from the Ex-Im bank. If the Ex-Im bank decides to get involved (and here it helps to be politically well-connected), it collects a fee from the foreign buyer, and in return will secure the buyer’s line of credit at a private bank for up to 85% of its value. This takes most of the risk away from the bank, allowing the bank to extend a more generous line of credit to the buyer. The buyer then purchases U.S. goods with the loan, boosting that U.S. company’s bottom line. That, of course, is only half the picture.

The most obvious objection to the Ex-Im bank is that it is crony capitalism at its worst. As a candidate for President in 2008, Barack Obama railed against the Ex-Im bank, calling it “little more than a fund for corporate welfare.” Unlike the impartiality of the free market, the Ex-Im bank gets to choose winners and losers when it extends lines of credit to certain businesses. It is easy to spot the inequity of their lending processes. Though they finance just 2% of all exports, 61% of their total financing benefited 10 large corporations. By one measure, the bank creates 200,000 jobs in America, of which 85,000 are in Washington State. The reason? Boeing.

Washington-based Boeing received about $8 billion in loan guarantees, or 30% of the bank’s total authorizations, in 2013. That’s why many call Ex-Im “Boeing’s bank.” If you find yourself flying with a foreign carrier in a 787, there is a decent chance that your tax dollars underwrote the loan for that plane – nearly one in five Boeing jetliner sales hinges on Ex-Im financing. If you are skeptical about how desperately a multi-billion dollar corporation needs the government to secure lines of credit for potential purchasers, you aren’t alone. The Tea Party has been a vocal critic of crony capitalism at the Ex-Im bank; even Washington’s Cathy McMorris (R-Spokane) has opposed the bank, though every other Representative from her state supports it. Perhaps they are swayed by the 18 lobbyists that Boeing has sent to Capitol Hill in order to assure the bank’s charter is extended.

Boeing is the largest beneficiary of the Ex-Im bank's operations.

Boeing is the largest beneficiary of the Ex-Im bank's operations.

The bank has assuredly created losers as well. Besides redistributing taxpayer money to one of America’s largest corporations, it has hurt competition in the market. Delta has complained that the Ex-Im bank leaves it at a competitive disadvantage when buying airplanes vis-à-vis foreign competitors. Foreign airlines can obtain cheap credit through the Ex-Im bank, and essentially pay less for the same plane as Delta does, being an American company; the foreign purchases also act as a subsidy, which drives up the price of Boeing planes. Delta tried to lobby against the renewal of the Ex-Im bank charter in Congress, but found the Boeing lobbyists so well entrenched that they gave up and decided to take their fight directly to the people.

And what of those profits claimed by the bank? Even that claim has come under fire. The non-partisan Congressional Budget Office released a report which contradicted the Ex-Im bank, and stated that it would actually contribute $2 billion to the deficit over the next decade if the Ex-Im bank used a more accurate accounting method which reflected the riskiness of the loans. Even by the bank’s own accounting standards however, it has not always been successful – in the 1980’s, the bank racked up a deficit of $5.3 billion. This doesn’t even take into account the hidden costs: the costs to all the other small and mid-size businesses that sought bank loans but were rejected because the banks’ money was tied up in Ex-Im backed loans.

We just need to cut back, like waste at the...Export-Import bank, which has become little more than a fund for corporate welfare.
— Presidential Candidate Barack Obama (2008)

Even environmentalists are joining in on the criticism, arguing that the bank has backed loans for coal producers and loans to construct coal burning power plants abroad. The loans in a sense keep coal-fired plants in operation, even as a variety of forces push the energy industry towards cleaner energy. In 2013, President Obama moved to restrict Ex-Im loans towards constructing coal-fired power plants abroad; however, Ex-Im bank still helps guarantee loans for coal mining and exporting.

So where does all this leave things? The Ex-Im bank is reviled by the right for meddling in the free market, was denounced by Barack Obama as a fund for corporate welfare, has indeed served as a fund for corporate welfare, is likely going to lose taxpayer money over the next decade, and is hated by environmentalists. With the bank’s charter set to expire on September 30th of this month, libertarians ask: what is there to debate?

* Thomas Warns is a J.D. Candidate in the Class of 2015 at New York University, and the Editor-in-Chief for the N.Y.U. Journal of Law & Liberty.

Keep the U.K. Together: The Presumption Should Be Against Shattering the Union

Will the vote be Aye or Nay?

Will the vote be Aye or Nay?

Richard Epstein*

RICHARD EPSTEIN

RICHARD EPSTEIN

Most of the discussion about the Scottish referendum on independence, scheduled for September 18, 2014, has focused on the fact that as of late the pro-union forces have maintained a narrow lead, most recently at about 47 to 41 percent.  What has gone less remarked as to why any reference to the 50 percent vote reveals a serious defect in the entire electoral process.  Why should the issue of Scottish independence be decided, as is the case, by a simple majority vote?

There is little doubt that in democratic societies decision by majority vote is often  appropriate for routine legislative matters.  Yet even here that approach can be slowed down by, for example, the requirement of a majority in two Houses, as in the norm in the United States and Canada.  Indeed, it surely the case that majority rule is never the correct standard to apply in elections that contemplate major structural and governance changes, which will shape, irreversibly, the future course of national history and identity.  By way of analogy, most voluntary arrangements, whether they serve business, social, religious or charitable ends, only execute major structural changes, like mergers and separations, by supermajority vote.

The same pattern holds politically,  For example, under Article I of the American Constitution, a Congressional override of the presidential veto (itself a major deviation from simple majority rule) requires a vote of two-thirds of the members of each house of Congress.  The background norm is self-conscious endorsement of the view that all new legislative interventions should be examined under a presumption of error, even in a democratic system.   The same sentiment is evident in the Amendment Process of Article V of the US Constitution, which creates an elaborate set of obstacles to amending the American Constitution, born of a worry that temporary political pressures could produce a permanent change in the government structures that even its proponents could come to regret.

Nothing in the theory of democratic politics requires all matters of public import be decided by simple majority rule.  These same  basic institutional concerns apply in the UK, especially on independence, wholly independent of the strong cultural and social arguments that, as Zac Tate has argued, point to the retention of the current system.  Any referendum that results in changes to the political structure should require a supermajority vote, probably in the range of three-fifths to two-thirds vote.  Under that standard the proponents of Scottish independence would have no chance, which in the absence of any major local grievance is just as it should be.

It might be asked whether any arguments from political theory might cut in the opposite direction.  The most persuasive argument in that direction rests on some version of the EU principle of “subsidiarity” principle, which says that key decisions should be made by the smallest unit that has the capacity to govern the particular issues at hand.  In this connection, without question Scottish politics are further to the left of those of England on domestic issues, given the Scottish preferences for higher taxes and transfer payments, stronger labour market protections, and more extensive economic regulation of the economy as a whole. Membership in the U.K. subordinates what would otherwise be a local majority decision to the collective preferences of the far larger English  population, which at 52.6 million people is about 10 times the population of Scotland. It is just this theme on which Scottish National Party leader Alex Salmond has pitched his case for independence: Edinburgh should exert complete control over taxation and economic regulation inside Scotland.

Yet this simple calculation misses the real complexities of the succession question.  The decisions that any, indeed every, government has to make are by no means all local.  The interconnections in operations between England, Scotland, and Wales have grown far tighter because of centuries of cooperation among them.  Thus while some issues could be decided locally, for many issues local solutions are manifestly inappropriate.  It is to just these functions that David Cameron and other pro-unionists appeal in making their pleas to doubtful voters, urging them to stick with the union.

Indeed, as this theory suggests, the unionists are on solid practical grounds. It is quite clear that Scottish independence will transform the landscape in foreign affairs.  The new nation will have to apply from scratch, if it so chooses, for membership in NATO, the European Union, and the UN for starters, as well as countless other mid level organizations that deal with everything from trade barriers, crime cooperation. to global warming.  In addition to the large number of multilateral treaties, the new Scottish government will have to establish bilateral treaties with virtually every major nation on tax and other business matters.  A quick search of UK Treaties Online shows that there are many hundreds, probably thousands, of current arrangements in place that will have to be sorted out in a very short period of time.  Yet there is nothing that indicates that other nations will sign on quickly to an extension of old relationships to the new government, without some unavoidable rethinking of the basic terms.

Four countries, one United Kingdom.

Four countries, one United Kingdom.

The same kind of complexity is sure to occur in connection with internal UK operations, which do not take place entirely within Scotland or England.  For starters, it is sufficient to think about the operation of air, boat, road, and train traffic as between the two countries for disputes over the control of military bases now used by U.K. forces that will (or is it might be?) transferred to English control. There is also the nasty question of whether Scotland can start up a new stable currency, given that it is surely unwise for England to allow an independent Scotland to piggy-back the pound, precisely because England will retain no economic levers over Scottish economic, tax and fiscal policy, which are likely to result in lower economic growth.  Much of the major problems in the EU today stem from the stress that major transfer payments and pro-union labor policies in the PIGS (Portugal, Italy, Greece and Spain) have placed incredible stress on the Euro which could been mitigated if national currencies were permitted to float freely from one another.

Wholly apart from these legal ramifications, an independent Scotland will be able do nothing to stem the loss of existing and fresh foreign capital and withdrawal to England of local businesses, including such iconic firms as the Royal Bank of Scotland Group and Lloyds Banking Group.  That major business shuffle coming on top of the legal transformation would be accentuated by the strong left-wing policies that are likely to gain traction in the wake of Scottish independence.

The pity of this all is that it is all so unnecessary.  Scotland has no major grievance or bitter unhappiness with current institutional arrangements.  Indeed, of the great advantages of the current federation model is that within an acceptable margin of error it allows both Scotland and England to get the best of both worlds.  The national government can take the lead in foreign and military affairs, and can control those network industries that span both, while allowing for some greater degree of autonomy on local issues.  The American constitutional model was initially designed on just that assumption and, ironically, it worked far better before the rise of the New Deal, in an earlier age when it was largely understood that local functions should not subject to the control of the national government, which was unfortunately toppled by the New Deal Constitutional Revolution of 1937.  Yet Scottish independence smashes these present cooperative arrangements, and necessarily blocks an incremental changes in the current system.

It is not possible now to reset the voting rules so that Scottish independence could only achievable by a supermajority vote.  But the case for that system justifies making this stern warning to the large number of Scottish voters who remain on the fence.  The presumption should always be set against major structural changes by simple majority vote. That same presumption should influence fence-sitting Scottish voters to vote “no” this coming Thursday.  There could always be another referendum down the road if Scottish conditions were to become intolerable.  But once the UK is broken up, it should be painfully evident that the Scottish voters, acting alone, cannot by simple majority vote force the creation of a new union with England.   In these uncertain waters, an emphatic no is the only responsible vote on Scottish independence.

*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.

Tenth Annual Hayek Lecture with Professor Thomas Merrill

THOMAS MERRILL

THOMAS MERRILL

We are pleased to invite you to the Tenth Annual Friedrich A. von Hayek Lecture featuring Thomas W. Merrill, Charles Evans Hughes Professor of Law at Columbia Law School.  This year marks the fortieth anniversary of Hayek’s Nobel Prize in Economics.  Professor Merrill will deliver the evening’s keynote address titled “Possession as a Natural Right.”  Trevor Morrison, Dean and Eric M. and Laurie B. Roth Professor of Law, NYU Law, Richard Epstein, Laurence A. Tisch Professor of Law, NYU Law, and Mario Rizzo, Associate Professor of Economics, NYU, will make introductory remarks.

The event is jointly sponsored by the Classical Liberal Institute at NYU Law and the New York University Journal of Law and Liberty and will be held on Thursday, October 16, 2014 from 6:00 to 8:00 p.m. in Vanderbilt Hall, Greenburg Lounge, located at 40 Washington Square South.  A reception will immediately follow the lecture.

 This event has been approved for 1.5 New York State CLE credits.  It will be appropriate for both experienced and newly attorneys (those admitted to the New York Bar for less than two years) and is presented in traditional (in person) format.

 Professor Merrill writes widely in the fields of property and administrative law. In property, he has authored, with Henry Smith of Harvard, a series of articles relating the structure of property rights to information costs, as well as a leading casebook (“Property: Principles and Policies,” 2012); a series of studies, with Joseph Kearney of Marquette, on the role of public property rights in the development of the Chicago lakefront; and a variety of writings on constitutional property. In administrative law, he has written a number of pieces about the history of administrative law, and about judicial review of agency interpretations of law.

Professor Merrill is a graduate of Grinnell College (1971) and Oxford University (1973), where he was a Rhodes Scholar, and the University of Chicago Law School (1977). He clerked for the Hon. David L. Bazelon, U.S. Court of Appeals for the District of Columbia Circuit, and for the Hon. Harry A. Blackmun, U.S. Supreme Court. From 1987-1990 he was Deputy Solicitor General, U.S. Department of Justice. Professor Merrill has previously taught at Northwestern Law School (1981-2003) and at Yale Law School (2008-2010). He is a member of the American Academy of Arts and Sciences.

As is the custom with the Hayek lectures, Professor Merrill’s talk will be published in the New York University Journal of Law and Liberty.  The Hayek lecture series has addressed many different topics since its inception, but it remains true to its mission: to challenge audiences to help shape a better world.

 If you would like to take this opportunity to register online, please click here or copy and paste the link below: https://nyu.qualtrics.com/SE/?SID=SV_bfnE62d3f2x28Bv

 If you have any questions, please contact Jennifer Canose, Program Manager at the Classical Liberal Institute, at jennifer.canose@nyu.edu.

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