Share |

Donald Trump Channels Hillary Clinton, Attacks Syria: From America First to America Last

Doug Bandow

Donald Trump spent the presidential campaign insisting that
Washington’s first duty was to protect the American people.
His vision was inconsistent and incomplete, but still sensible
enough to horrify Washington’s bipartisan war party.

Almost exactly a year ago he gave a major address to the Center
for the National Interest in which he criticized nation-building
and especially the disastrous Iraq and Libya interventions:
“After losing thousands of lives and spending trillions of
dollars, we are in far worst shape in the Middle East than ever,
ever before.”

He also promised to step back from confrontation from Russia.
“I believe an easing of tensions, and improved relations with
Russia from a position of strength [not] only is possible, [but]
absolutely possible. Common sense says this cycle, this horrible
cycle of hostility must end and ideally will end soon,” he
explained.

He applied both principles to Syria. He insisted that the
Islamic State was America’s primary objective in Syria. He
said President Barack Obama should not intervene even if Damascus
crossed the latter’s chemical weapons “red line.”
And candidate Trump urged cooperation with Moscow in Syria. He
offered a radical but welcome departure from Obama administration
policy. Until last week he and his appointees followed this line.
For instance, on March 30 UN Ambassador Nikki Haley declared:
“Our priority is not to focus on getting Assad
out.”

Candidate Trump went on to make a promise extraordinary for
Washington, that “unlike other candidates for the presidency,
war and aggression will not be my first instinct.” Warrior
wannabe Republican and Democratic leaders sniffed their
disapproval, but he well captured the frustrations of the American
people who do the paying and dying in America’s many
conflicts. Just last week he declared that “I’m not,
and I don’t want to be, the president of the
world.”

Alas, less than three months after taking office for President
Trump has begun channeling Hillary Clinton on foreign policy.
Despite almost six years of war and the deaths of several hundred
thousand people in Syria, he apparently was not aware that the
conflict had resulted in extraordinary human hardship. So after
seeing what he called “horrible” photos of some of the
scores of dead from an apparent Syrian chemical attack the
president ordered strikes on a Syrian military base. And that may
not be all: his aides talked about taking further military
action.

Candidate Donald Trump
got Syria right. Nothing in the conflict warrants Washington’s
involvement.

Secretary of State Rex Tillerson initially said “steps are
under way” to develop a new international coalition to oust
Assad: “it would seem that there would be no role for him to
govern the Syrian people,” he announced last Thursday. Over
the weekend, however, he backpedaled, insisting that the
administration’s focus on the Islamic State was unchanged,
since a political resolution would require “participation of
the regime and the support of their allies.” He also
expressed his hope “that we can work with Russia and use
their influence to achieve areas of stabilization throughout
Syria.”

In contrast, Ambassador Haley spewed fire and brimstone while
seeming to push aside her nominal boss. Peace is impossible
“as long as Assad remains in power,” she insisted:
“we’ve got to go and make sure that we actually see a
leader that will protect his people.” She allowed that
“Getting Assad out is not the only priority”: The U.S.
also has “to get out the Iranian influence,” which is
necessary “for peace and stability in the area.”

Moreover, Haley insisted that Moscow and Tehran “now have
to answer for” their support for the Assad regime. When it
comes to sanctions against the two states nothing “is off the
table.” She promised that the president “won’t
stop here.” Indeed, if “he needs to do more, he will do
more.” The administration will exercise “strong
leadership,” whatever that means, she insisted.

National Security Adviser H.R. McMaster implausibly contended
that there was no difference between the positions taken by
Tillerson and Haley: “There has to be a degree of
simultaneous activity, as well as sequencing the defeat of ISIS
first.” He added: “the resolution of the conflict will
entail both of the elements that you’re talking about.”
In short, the U.S. must both destroy the Islamic state and
overthrow Assad, but do so in the right order.

Critics of Donald Trump exhibited a strange new respect for him
after he launched the missiles. He had acted
“presidential,” said one. Apparently nothing wins
acclaim in Washington like killing foreigners in the name of doing
good. No matter the disastrous consequences of Washington’s
oft-attempted global social engineering.

The war lobby also pushed back against Secretary
Tillerson’s apparent retreat. For instance, the irrepressible
Sen. Lindsey Graham, who has yet to find a war that he
doesn’t want others to fight, claimed “regime change is
now the policy of the Trump administration. That’s at least
what I’ve heard.” The equally war-happy Sen. Marco
Rubio criticized the secretary of state for focusing on ISIS.
“You cannot have a stable Syria without jihadist elements on
the ground with Bashar al-Assad in power.”

The ivory tower commentariat, too, went into full war cry. Its
members are never so eloquent as when demanding that others go to
war. Argued Briton Piers Morgan: Assad will “keep doing this
until somone stops him. WHO will stop him?” Certainly not
Morgan. That obviously is the American military’s job. But
journalists and policy analysts will enthusiastically cheer on the
sacrifice by U.S. personnel.

Candidate Donald Trump got Syria right. Nothing in the conflict
warrants Washington’s involvement. Last week he declared that
as president he now has “responsibility” for Syria.
Actually, he is responsible for America, the liberty, security, and
prosperity of its people. And that requires staying out of
unnecessary wars, like Syria.

Syria’s fate has little impact on U.S. security. During
the Cold War the regime, headed by Assad’s father, was allied
with the Soviet Union. After being defeated by Israel in the 1973
Yom Kippur War, Damascus retreated to a cold war with Israel. Syria
meddled in neighboring Lebanon, but with little impact on anyone
else. Despite Syria’s friendship with Iran, the latter
remained well behind the military capabilities of Saudi Arabia and
its Sunni coalition.

Even if Syria mattered more it would not justify intervention by
the U.S. Policymakers have turned military action into a first
resort, but war is different in kind and not just in degree from
other policy options. It should be reserved to protect America,
which is not threatened by the Syrian civil war.

Today Syria is a wreck and has international significance
primarily as a battlefield. Even if Iran and Russia are able to
“save” Assad fils, the regime will be a ghost,
a remnant of what it once was. Indeed, the Assad government is a
costly investment: it is wasting its allies’ lives and
materiel while generating international hostility toward them.
There’s no reason for Washington to join the fight.

War advocates tend to stretch the concept of “vital”
interests to nothingness. For instance, President Trump said it is
in the “vital national security interest of the United States
to prevent and deter the spread and use of deadly chemical
weapons,” even though they weren’t going anywhere. In
contrast to nuclear and biological weapons, chemical agents
typically are not mass killers.

President Trump declared that “These heinous actions by
the Assad regime cannot be tolerated.” Chemical weapons are
awful, but not obviously worse than bombs or even well-aimed
bullets. Treating death by chemicals as so much worse than death by
other weapons makes a moral mountain out of a policy molehill. The
difference does not justify Washington joining the war.

Secretary Tillerson argued that the potential of insurgents
grabbing chemical weapons posed an “existential” threat
to America, but ISIS already is believed to possess them. Anyway,
Tillerson’s scenario is implausible at best: smuggling them
in and using them would be extraordinarily difficult. Rep. Trent
Franks declared “making it clear that innocent victims of
terrorism and evil do have at least one friend in this world”
is a “vital American interest,” which, if true, means
both nothing and everything are vital interests.

Of course, Syria is a humanitarian tragedy. But it is a civil
war, not genocide. Most of the casualties have been combatants, not
civilians. The regime may kill more prodigiously, but primarily as
a result of its greater capability rather than lesser morality.
While there undoubtedly are liberal, democratic insurgents, there
is a surplus of bad guys on both sides.

Indeed, the conflict features a who’s who of
America’s dubious friends, frenemies, adversaries, and
enemies all at each other’s throats: Assad government, Sunni
jihadists and terrorists, Iranian-supported militias, Russian,
Saudi, Qatari, and Turkish forces, Kurdish fighters, immoderate
“moderates,” and more. Last month Washington deployed
U.S. forces to separate Turkish-backed and Kurdish forces, which
had clashed. The most important difference among them for
Washington is that many of Assad’s opponents are interested
in killing Americans and other people outside of Syria, most
notably the Islamic State and other jihadist groups.

And there should be no illusions about who would do the fighting
if Washington jumped into the Syrian war. Noted Aaron David Miller
and Richard Sokolsky of the Woodrow Wilson International Center and
Carnegie Endowment for International Peace, respectively:
“one of the more stubborn realities of the Syrian conflict is
that America’s Sunni Arab partners—with the exception
of small Jordan and vulnerable Lebanon—have talked tough but
done little in the way of absorbing refugees or contributing forces
to the actual fight against ISIS.”

The desire to end the suffering is laudable, but impractical.
The U.S. has no simple means to bring liberal order out of brutal
chaos. Air power alone is unlikely to defeat Assad: “boots on
the ground,” as the saying goes, would be necessary. And
ousting Assad would not end the fighting. Instead, it would just
set off a new combat round in a situation dramatically, even
exponentially, more complicated than previous conflicts.

Moreover, given the debacles in Iraq and Libya, Washington could
not simply walk away after defenestrating Assad. Imagine the ISIS
flag rising over Damascus and angry victors slaughtering Alawites,
Christians, and other religious minorities. Even in
“victory” Washington would find a host of new tasks to
perform: defeat radical forces, protect victimized minorities,
create stable governance, eliminate Iranian and Russian influence,
mediate between Turks and Kurds, and whatever other fantasies
filled the minds of Washington’s social engineers. The
likelihood that the Trump administration could create stable democratic rule Syria is even less than the chance it could do so
in Afghanistan, Iraq, and Libya.

Washington’s humanitarian record is a bit threadbare. Its
Mideast allies include Egypt, Bahrain, Saudi Arabia, and Turkey,
all of which have dubious human rights records. America’s
support for Riyadh’s horrid war in Yemen makes Washington
complicit in the death of thousands of civilians who have done
nothing against the U.S. or its people. Consistency may be the
hobgoblin of small minds, but it still matters in foreign policy,
especially when the president of the United States reportedly is
basing his decisions on casualty photos.

While there’s no good reason for Washington to jump into
the Syrian imbroglio, there are several powerful reasons to stay
out. To start, the president has no legal authority to attack
Syria—the post-9/11 congressional authorization obviously
doesn’t apply and Damascus has not attacked or threatened
America or even an American ally. The Constitution places the
decision to initiate hostilities with Congress, not the president.
Indeed, candidate Trump urged President Barack Obama to get
legislative authority before bombing Syria. In 2013 the former
declared: “Obama needs Congressional approval.”

War advocates ignore the obvious, that attacking Assad
inevitably empowers the Islamic State and other radical Islamists.
Many so-called moderates do not appear to be very moderate, and
they have not demonstrated the ability to defeat Assad as well as
assorted jihadist movements. Ironically, they have been targeted by
Damascus because the prospect of Western support made them
particularly dangerous to the Assad regime.

Moreover, moving toward war in Syria sets up a great power
confrontation with Russia, the one nation with a nuclear force
which allows it to go head-to-head against America. Sen. John
McCain, perhaps the Senate’s most belligerent member,
dismissed the danger of such a clash: they “will not want a
confrontation with the United States of America. And if they do,
they will lose, because we are superior to them
militarily.”

However, with far more at stake, Moscow is willing to spend and
risk far more. Last October candidate Trump warned against starting
“a shooting war in Syria, in conflict with a nuclear-armed
Russia that could very well lead to World War III.”
Additionally, the Putin government can help advance or hinder U.S.
policy objectives in Europe, Afghanistan, Iran, and North Korea.
One need not like Vladimir Putin to realize the importance of
having a working relationship with its government, which, despite
its aggressiveness on Europe’s periphery, nowhere threatens
fundamental American security interests.

Confronting Tehran in Syria undercuts the possibility of
liberalization in Iran. Along with discouraging the Islamic
republic from developing nuclear weapons, the Joint Comprehensive
Plan of Action, or nuclear accord, increased the likelihood of
internal political change. Expanding economic opportunities for
younger Iranians gives them a greater incentive to fight for
political change. Unfortunately, continuing U.S. restrictions have
impeded such a transformation. Creating a security crisis would
make positive change even less likely. Having a friendly regime in
Damascus matters far more to neighboring Tehran than distant
America, so the clerical regime is willing to sacrifice much more
than Washington to “win” in Syria.

Finally, the president’s potential diversion back into the
Middle East likely is causing high-fives all over Beijing.
President Trump came into office challenging the People’s
Republic of China on a range of issues. He’s already appeared
to back down and move toward a more normal relationship. But
Chinese President Xi Jinping probably never imagined even in his
fondest dreams that yet another Washington administration would
rush toward into yet another no-win Mideast war—and so early
after taking office.

President Trump seems to know better than to entangle America
another Middle Eastern imbroglio. After being criticized for his
newly discovered militarist instincts, he proclaimed: “We are
not going into Syria.” Three years ago he opposed demands
that President Barack Obama bomb the same regime for the use of the
same weapons. But after seeing “horrible” photos, he
launched a barrage of cruise missiles. On that basis, the president
easily could end up taking America into even more wars in coming
years.

Syria is a human tragedy of extraordinary proportions. But
normally the U.S. “goes not abroad in search of monsters to
destroy,” proclaimed Secretary of State John Quincy Adams a
century ago. Sometimes war is necessary. But only very rarely.
Washington’s overriding duty is to safeguard America, not
remake the world. That principle is only likely to grow more
important over time.

Doug Bandow is
a senior fellow at the Cato Institute and a former special
assistant to President Ronald Reagan.

Share |

The Budget Battles to Come

Michael D. Tanner

Don’t look now, but the next big legislative battles of the
Trump presidency may be just a few weeks away. Republicans must
pass a budget by April 28 to avoid a partial government shutdown.
Yet, as was the case during the recent failed effort to repeal and
replace Obamacare, Democrats are united in opposition while
Republicans are badly split.

The looming battle doesn’t concern the 2018 budget that
President Trump purported to unveil a few weeks ago, which will
spark a fight of its own down the road. Rather, it concerns budget
business left over from last year when, unable to pass budget
bills, a lame-duck Congress kicked the can down the road, passing a
continuing resolution to fund the government through the end of
this month. The time on that CR is now almost up, and Republicans
are planning to offer an omnibus budget bill to fund the government
for the rest of the year. To further complicate measures, this
massive omnibus will likely be offered as an amendment to the 2017
defense-appropriations bill.

If Trump thought his
first few months were tough, he’s in for a rude awakening: The next
few will be even tougher.

Perhaps unsurprisingly, given the direction of this Congress and
administration, the most contentious issues are not likely to be
the bill’s massive levels of government spending (it proposes a $15
billion increase from last year) nor the inevitable billions of
hidden pork. Instead, it is smaller side issues that threaten to
derail the effort to keep the government running. For instance, the
Trump administration is insisting on funding to start construction
of — or at least planning for — the wall it wants to
build on our Mexican border, and Democrats, Republican moderates,
and deficit hawks alike are balking. There will also be the usual
face-offs over issues such as defunding Planned Parenthood.

While the actual impact of government shutdowns is always vastly
exaggerated by the media, the optics of a shutdown would only
contribute to the image of an administration in disarray. Yet a
retreat by the administration from its key priorities, especially
in the wake of the health-care-reform debacle, will make it look
weak, imperiling the rest of its agenda.

And if Republicans do manage to paper over their
differences long enough to get through this fight, they will almost
immediately have to face up to another budget issue — the
debt ceiling. The federal government actually exceeded its $18.15
trillion borrowing limit some time ago. But, in a bipartisan
pre-election ducking of responsibility last October, Congress
“suspended” the limit until March of this year. Since then, the
Treasury Department has been engaging in a variety of bookkeeping
gimmicks to avoid default, such as postponing contributions to
government pension funds and borrowing from a pool of funds that
the government sets aside to manage exchange-rate fluctuations.
While the government can probably keep using such “extraordinary
measures” through summer, Congress will eventually have to deal
with the issue. Expect Democrats to suddenly rediscover concern
over the national debt, while the Freedom Caucus has already
indicated that it will want concessions in exchange for agreeing to
raise the ceiling.

After that comes the battle over Trump’s 2018 budget, with its
big increase in defense spending and offsetting cuts to domestic
programs. Almost nobody is enthused by that plan. There’s also the
president’s $1 trillion infrastructure plan to consider. Oh, and
tax reform.

All of this budget maneuvering comes shortly after the
Congressional Budget Office released an alarming new report warning
that the national debt will double as a share of the national
economy by mid-century. Interest payments on the debt will rise
from $270 billion in 2017 to $768 billion in 2027, with
catastrophic consequences for President Trump’s agenda of economic
and job growth. According to the CBO, the rising tide of red ink
will shrink economic growth by 3 percent from the current baseline.
As a result, the average American will be $4,000 poorer by
2047.

Trump has had a tough first few weeks in office; if he thinks
it’s about to get easier, he’s in for a rude awakening.

Michael
Tanner
is a senior fellow at the Cato Institute and the author
of Going for Broke: Deficits, Debt, and the Entitlement
Crisis
.

Share |

Trade Deficit: Ask the Wrong Questions, Get the Wrong Answers

Daniel R. Pearson

President Trump signed an executive order on March 31 requesting
an “Omnibus Report on Significant Trade Deficits.” This
report “shall identify those foreign trading partners with
which the United States had a significant trade deficit in goods in
2016.” The policies of those countries are to be examined,
including among others: tariff and non-tariff barriers, dumping,
government subsidization, intellectual property theft, and
“other factors contributing to the deficit.”

Thank heavens for that final clause, “other factors
contributing to the deficit.” Looking at other
countries’ policies may tell us something about bilateral
trade flows, but it will tell us very little about the overall U.S.
trade deficit. With the exception of “other factors,”
the executive order is asking the wrong questions, so the report
almost certainly will provide the wrong answers.

Trump’s executive order
seems premised on the mistaken notion that fixing trade-distorting
policies of other countries would reduce the U.S. trade
deficit.

The trade deficit is driven by U.S. government policies that
influence domestic savings and investment, not by the policies of
governments overseas. The United States simply doesn’t save
as much as it invests. This leaves America with a massive
financial/capital account surplus — people in other nations
send a lot of money to this country every year to build factories,
buy stocks, and fund the federal budget deficit. By definition, the
balance of payments must balance, so the United States runs a
current account deficit equal to the financial/capital account
surplus. The trade deficit is the largest component of the current
account, so the trade deficit also is large — $502 billion in
2016.

If the United States really was serious about reducing its trade
deficit, it would curtail its demand for borrowed money by
eliminating the federal budget deficit. The Congressional Budget
Office reports that the 2016 budget deficit rose to $587 billion
— even larger than the trade deficit. For good measure, the
U.S. government also would reform the tax code to stop the taxation
of interest earned on deposits, as well as ending the deductibility
of mortgage interest. That would shift the policy bias away from
borrowing, and instead would favor saving.

Unfortunately, the executive order seems premised on the
mistaken notion that fixing trade-distorting policies of other
countries would reduce the U.S. trade deficit. True, there are an
abundance of government policies — both overseas and in the
United States — that distort the flow of goods and services.
Seeking their reform is entirely appropriate. However, those
distortions largely have the effect of rearranging trade flows
among countries, not increasing the size of the U.S. trade
deficit.

As a hypothetical example, If China was to end a policy that
subsidized the production of T-shirts, it might lead to higher
prices. That price signal could cause a reduction in U.S. T-shirt
imports from China. However, U.S. demand for affordable T-shirts
would remain unchanged, so importers likely would increase
purchases from Bangladesh. Reform of a trade-distorting policy
easily could shift the origin of T-shirts entering the United
States from one country to another, but the effect on the overall
U.S. trade balance would be nil.

Many trade flows have very little to do with policies and much
to do with economics. Comparative advantage still works in the 21st
century — countries simply are better at producing some
things than others. Even most protectionists recognize that America
is better off importing coffee from efficient producers such as
Colombia rather than trying to grow it here. Imports raise living
standards; we shouldn’t be afraid of them.

So what will the executive order accomplish? By identifying
troubling policies overseas, it might help to determine future
negotiating priorities. More likely, though, its built-in emphasis
on other countries will tend to misinform the public and the White
House itself regarding the root causes of the trade deficit.

Perhaps there is yet a glimmer of hope. Knowledgeable economists
are employed at Commerce and USTR, as well as other departments
involved in preparing the report. They may face pressure to produce
a study consistent with the biases expressed in the executive
order. Will those professionals stand aside and allow the real
causes of the trade deficit to be swept under the rug? They would
do a great service to the United States and to the global trading
economy by looking beyond the wrong questions, focusing on
“other factors contributing to the deficit,” and
striving to provide the right answers.

Daniel R.
Pearson
is a senior fellow in trade policy studies at the Cato
Institute. He served a two-year term as chairman of the U.S.
International Trade Commission during the George W. Bush
administration.

Share |

Who Should Fund Science?

Patrick J. Michaels

According to the latest annual survey conducted by the National
Science Foundation (NSF), the federal government funded less than
half of all basic research in the country for the first time since
World War II.

As for whether this is a good thing, it depends on who you ask.
Francis Bacon some 400 years ago claimed that science is a public
good and must be funded by governments for discovery to proceed.
Today, scientific research as a public good is a societal value few
question.

Perhaps we should start questioning. As my Cato colleague
Terence Kealey notes, objective indicators show that scientific
progress is actually slowed by public funding, as it crowds out
support from philanthropic sources and industry.

While some are not liking
the gradual withdrawal of the government from funding basic
science, the rest of us should be singing praise.

Basic research is often called “knowledge for knowledge’s sake,”
with no immediate practical application in mind. Prior to the war
most funding for basic research in the United States came from
foundations, philanthropists, university endowments, and
industry.

Other countries, like France and Germany, had publicly funded
science for over a hundred years, yet in the United States science
was not federalized until World War II, via the Manhattan Project.
Even before its explosive success, Franklin Roosevelt wrote to its
director, Vannevar Bush, asking him to design a national science
enterprise to replace the bomb project after the war. In a few
months, Bush produced a booklet called “Science: The Endless
Frontier.” By the 1970s, over 70 percent of basic research was
federally funded.

It appears we are now gradually moving back toward the way basic
science was funded prior to its nationalization. Kealey’s research
predicts that this will be associated with greater economic
growth.

With government’s withdrawal, we will have an opportunity to
test Kealey’s hypothesis.

As the federal share declines, corporate support for science is
dramatically increasing. According to the NSF, in 2005, the federal
outlay was some $37 billion, while the corporate contribution was a
bit under $10 billion. Ten years later, taxpayers contributed about
$38 billion, a 2.7 percent increase, while corporations chipped in
around $24 billion, an increase of a whopping 240 percent. The
share and the amount contributed by philanthropy and university
endowments also rose in the last decade, much more than the
government’s portion and much less than the corporate sector.

These cuts comes at the expense of universities as, in Bush’s
plan, scientists were not to be paid directly by government.
Instead, universities would apply for government funding, with
research proposals written by their faculty. For this
administration, schools may charge overhead, a 50 percent vigorish
the feds allow to be tacked on to research proposals. Research
universities became dependent upon this large stream of funds.

Universities support this because money is fungible – within
some broad limits. The government wasn’t happy that some of its
overhead paid for paneling on Stanford University’s yacht. But it
hasn’t the same moral qualms when that money buys, say, computers
for the Germanic Language department. In fact, it’s a general rule
that the massive overhead generated by the science and engineering
departments of a Tier-1 research university (think Stanford,
Berkeley, Wisconsin) is what helps the many other departments that
simply cannot support themselves with tuition revenue. By
comparison, almost all corporate funding for basic research is
spent in-house rather than being farmed out, which means that
overhead revenues should decline.

This is probably good news for science. As it stands now, many
students of science, such as University of Virginia’s Brian Nosek,
note that the current incentive structure, wherein university
faculty are under intense pressure to publish research that
maintains the flow of federal dollars, is causing demonstrable harm
to science.

This structure has also led to a skewing of the canon of
scientific knowledge away from objective truth. If one’s research
does not support a funded hypothesis, it puts the funding in
jeopardy, and it is therefore dangerous to publish such “negative”
results. This has led to a massive increase in the percent of
positive results. Often these hypotheses are being supported by
public funding. In an extremely influential 2012 paper, Stanford’s
Daniele Fanelli showed that an increase of nearly 20 percent in
such findings from 1990 to 2007.

While some are not liking the gradual withdrawal of the
government from funding basic science, the rest of us should be
singing praise. This may be the best way to right the ship of
science, currently wallowing in an ocean of shoddy research, where
the incentives for professional advancement are impeding the search
for truth, and slowing prosperity for all.

Patrick J.
Michaels
is the director of the Center for the Study of Science
at the Cato Institute.

Share |

Fear Beats Civil Liberties, Every Time

Matthew Feeney

Shortly after Donald Trump’s election there was a deluge of commentary reminding us all that Trump’s presidency is
not normal.” To
be sure, the president’s careless attitude towards the
truth
, his unorthodox communication
style
, not to mention his ignorance of how
government works is rather irregular. Yet Trump’s campaign
pledge to establish a “deportation force,” and his
passion for domestic surveillance are hardly unprecedented in
American history. A fleeting glance over the last century reminds
us that America has experienced mass deportations and
incarcerations before, whether prompted by domestic terrorism or
military assault. What is new are the plethora of data available to
law enforcement that makes deportations and mass surveillance
easier to conduct.

Late in the evening of June 2, 1919 a bomb exploded outside
Attorney General A. Mitchell Palmer’s home in Washington, D.C. The
blast blew out windows within a one hundred yard
radius
and ejected homeowners from
their beds
. One of Palmer’s neighbors, Franklin Delano
Roosevelt, had recently returned from a dinner party with his wife
and ran across R Street to
check on the Palmers. Carlo Valdinoci, an
Italian anarchist and wannabe assassin, accidentally detonated the
bomb early, and his remains were now scattered around the
neighborhood—his torso ending up on a
cornice on S Street
, his scalp finding its way to a rooftop, and
another part of his body flying through the
window
of the Norwegian ambassador’s residence. Copies of the
anarchist pamphlet Plain Words
were strewn across the area.

That wasn’t the only bombing that evening. Bombs were sent to
officials in eight cities, but the only person killed, aside from
Valdinoci, was a night watchman outside
the home of New York judge Charles Cooper Nott.

The June attacks came only a few months after a string of other
attempted mail bombings, all of which failed to
kill their targets. Nonetheless, one of these bombs did blow off
the hands off a maid working for ex-senator
Thomas Hardwick
. Newspaper reports and much of the public,
already in the midst of the “Red Scare,” were quick to
blame anarchists, Bolsheviks, and other “radicals.”

As the Trump
administration violates civil liberties in the name of law
enforcement and national security we shouldn’t forget that,
regrettably, such violations are by no means
unprecedented.

Speaking a few years later at a Senate Judiciary Committee
hearing
, Palmer said, “I remember […] the morning after
my house was blown up, I stood in the middle of the wreckage of my
library with Congressmen and Senators, and without a dissenting
voice they called upon me in strong terms to exercise all the
powers that was possible to the Department of Justice to run to
earth the criminals who were behind that kind of
outrage.”

Palmer began seeking out radicals such as anarchists and
communists. At a meeting only two
weeks
after the June bombings Palmer, a newly appointed
assistant attorney general Francis P. Garvan, and Bureau of
Investigation (BI) director William J. Flynn decided that mass deportation of
radical aliens was required. They also made plans to establish the
General Intelligence Division (GID), initially called the Anti-Radical Division.
Garvan knew someone who would be ideal to run GID: a twenty-four
year old named J. Edgar Hoover.

Hoover had been working for the Department of Justice for two
years, but he started out in the unassuming position of librarian
in the Library of Congress. That job “trained
[him] in the value of collating material.” As Hoover would
later write, “It
gave me an excellent foundation for my work in the FBI where it has
been necessary to collate information and evidence.” Hoover
was somewhat modest about his cataloguing skills; his superiors at
the Library were so impressed by his abilities that they doubled his
pay
.

As head of GID, Hoover was a librarian of sorts, establishing an
index card database of “radicals.” By 1921, that
database included about 450,000 names.
Hoover’s library of radicals was used assist what came to be
known as the “Palmer Raids.” The first of these raids
took place on November 7, 1919, the second anniversary of the
Russian revolution. BI agents and local police targeted the Union of
Russian Workers
in twelve cities.

As a result of the “Palmer Raids” 556 people were deported
and around 10,000arrested, many
without warrants. There
would undoubtedly have been more deportations if Assistant
Secretary of Labor Louis Freeland Post had not stepped in. Post, no
fan of Palmer’s agenda, opened an investigation into the
raids
. At the time, the Department of Labor was responsible for
deportations, and in April 1920 Post canceled 1,141 of the remaining
1,600 deportation orders
.

Hoover did much more than oversee an extensive index card
system, as Curt Gentry outlined in his book, J. Edgar Hoover: The
Man and the Secrets
:

Local police were encouraged to set up their own “Red
squads” and share their findings with Washington. Private
detective agencies, employed by the struck companies, supplied huge
lists of names. Under a variety of pretexts—which included
purchase, seizure, and theft—whole radical libraries were
obtained. Newspapers were collected “by the bale” and
pamphlets “by the ton.” Forty multilingual translators
searched foreign-language periodicals for names and inflammatory
quotations. Stenographers were sent to public meetings to take down
the content of speeches. In Washington one-third of the BI’s
special agents were assigned to antiradical work; in the field,
over one-half, many of them undercover.

Despite criticism, Palmer consistently defended the
raids . Two days before leaving the Department of Justice, Palmer
told the Senate Judiciary
Committee
:

I apologize for nothing that the Department of Justice has done
[…] I glory in it. I point with pride and enthusiasm to the
results of that work; and if […] some of the agents of the
Department of Labor were a little rough and unkind, or short or
curt, with these alien agitators whom they observed seeking to
destroy their homes, their religion, and their country, I think it
might well be overlooked in the general good to the country which
has come from it. That is all I have to say.

America’s first “Red Scare” is far from the
only time that federal authorities have used massive data
collection to round up targets. Indeed, one of the most shameful
episodes in American history was aided by such collection.

On December 7, 1941 the Imperial Japanese Navy Air Service
attacked the U.S. naval base at Pearl Harbor. On February 19, 1942,
more than two decades after he rushed across R Street to check on
Palmer, President Franklin Delano Roosevelt signed Executive Order 9066,
authorizing the internment of people of Japanese descent, including
American citizens.

Roughly 120,000 people were put
into internment camps. The early detention of these people was
aided in part by Department of Justice data. The Department of
Justice had been keeping tabs on particularpeople with Japanese
ancestry
since the late 1930s. The Census Bureau also aided the
internment, creating records of Japanese
Americans. The internment continued despite a report written by naval
intelligence officer Kenneth Ringle that found
only a small fraction of Japanese aliens or citizens posed a threat
to national security and that most of those were already in custody
or members of well-known groups.

The Supreme Court ruled upheld Japanese internment as
constitutional in the infamous 1944 case Korematsu v. United
States
, which has yet to be overturned.

Today, federal authorities have access to intelligence tools
that would astonish Hoover, Palmer, and Roosevelt. This is of
particularly acute concern at a time when the president is an
unambiguous fan of domestic surveillance and has
called for a “deportation
force
.” Such ambitious policies will require access to
enormous amounts of data to be effective.

Now, thanks to tools such as Immigration and Customs
Enforcement’s Investigative Case
Management
(ICM), the Trump administration has the means to
carry out the mass deportations Trump promised us during his
campaign, as The Intercept’s Spencer Woodman
explained:

ICM allows ICE agents to access a vast “ecosystem”
of data to facilitate immigration officials in both discovering
targets and then creating and administering cases against them. The
system provides its users access to intelligence platforms
maintained by the Drug Enforcement Administration, the Bureau of
Alcohol, Tobacco, Firearms and Explosives, the Federal Bureau of
Investigation, and an array of other federal and private law
enforcement entities. It can provide ICE agents access to
information on a subject’s schooling, family relationships,
employment information, phone records, immigration history, foreign
exchange program status, personal connections, biometric traits,
criminal records, and home and work addresses.

ICM isn’t the only piece of equipment that allows law
enforcement to gather and analyze personal data. Half of American adults are in some kind of law
enforcement facial recognition network, and police are increasingly
using drones and
cell-tower simulators
, both of which enhance law
enforcement’s ability to conduct surveillance.

The Palmer Raids and the internment of Japanese Americans are
only a few examples of how terrifying attacks, whether
they’re letter bombs or a coordinated military assault, can
prompt the government to on trample on civil liberties. If history
is any guide we should expect a similar response to the next
attack, regardless of who the perpetrators might be.

We should also expect federal law enforcement priorities to shift. Early 20th century
radicals and Japanese Americans are only two groups in a long list
of government surveillance targets that includes folk singers, the
ACLU, civil rights leaders, pacifists, Quakers, and others. For
now, Muslims and illegal immigrants are the current
administration’s immigration and law enforcement priorities.
No one knows who’s next.

Fortunately, mass data collection of innocent people
doesn’t have to be treated as inevitable. Reforms could
require that federal agents must establish individual reasonable
suspicion of a criminal violation before querying a law enforcement
database. Allowing federal law enforcement to scour through
databases during the next “Red Scare” or “War on
Terror” will only facilitate more civil liberty violations.
As the Trump administration violates civil liberties in the name of
law enforcement and national security we shouldn’t forget
that, regrettably, such violations are by no means
unprecedented.

Matthew
Feeney
is a policy analyst at the Cato Institute.

Share |

Here’s How Trump Can Get Congress to Repeal and Replace Obamacare

Michael F. Cannon

President Trump’s first negotiation with Congress over repealing
and replacing Obamacare did not go well. He got no help from
Democrats, and was unable to bring together the GOP’s moderate and
conservative factions.

Yet President Trump can force Republicans and Democrats back to
the negotiating table, and get a bill that keeps his promises to
fully repeal Obamacare and to protect people
with preexisting conditions. Trump can do this by simply undoing the illegal actions by his predecessor,
which he has also already promised to do.

Obama’s Illegal Bailouts Should Be The First To
Go

President Barack Obama created several illegal bailouts to keep
Obamacare from cratering—and Congress from repealing
it—before he left office.

Trump can do this by
simply undoing the illegal actions by his predecessor, which he has
also already promised to do.

The first was a bailout for members of Congress and their
staffs
. Obamacare forced them out of their federal-employee
health plans the day the law took effect. President Obama bailed
them out by ignoring that provision. He let them stay in their
health plans and forced taxpayers to contribute up to $12,000
toward the premiums of those illegal health plans.

This bailout took a ridiculous turn when the Obama
administration declared Congress to be a small business. Starting
in 2014, Obamacare allowed members and staff to get coverage
through the Exchanges. At that point, the only way to keep the
money flowing was to enroll Congress in one of Obamacare’s
small-business Exchanges. Federal law prohibits employers with more
than 100 workers from participating in small-business Exchanges.
Congress, which employs thousands, got an exemption.

President Trump can end this illegal taxpayer bailout via
executive order—a move that 92 percent of voters support. When Congress has
to live under Obamacare, Democrats and Republicans will join hands
to deliver immediate relief for the American people.

If Trump finally implements that $12,000 pay cut for members and
staff, Congress could reinstate it by legislation. But the
Constitution would prohibit that pay increase from taking effect
until after the next election. So in effect, there would be a
congressional pay raise on the ballot in 2018.

Trump Should End Obama’s ‘Cost-Sharing
Subsidies’

A second bailout concerns “cost-sharing subsidies”
the Obama administration provided to insurers in the Exchanges. The
Obama administration admitted Congress never appropriated funding
for these subsidies, yet started sending billions of dollars to
insurance companies anyway. The House of Representatives sued the
administration in federal court. A federal judge ruled this bailout “violates the
Constitution” and ordered it to stop.

Armed with a court order, President Trump should end this
illegal bailout. Insurance companies and members of Congress from
both parties and all ideological stripes would return to the
negotiating table, eager to strike a deal that stabilizes insurance
markets.

A third bailout concerns another $3 billion the Obama
administration illegally diverted from the U.S. Treasury to
insurance companies.

Insurance Companies Should Return Unlawful
Payments

Obamacare’s “reinsurance” program collected
money from nearly every American covered by a health insurance
plan. It then earmarked some of the funds for insurers
participating in Obamacare’s Exchanges, and the rest to the
U.S. Treasury. The U.S. Government Accountability Office, a
non-partisan federal watchdog agency, found the Obama administration illegally
diverted funds earmarked for the Treasury to insurance companies
instead.

Armed with the GAO report, President Trump can stop the diversion
of funds and demand that insurance companies return unlawful
payments they have already received, giving insurers and members of
Congress even more reason to negotiate.

Ending these insurer bailouts would not destabilize insurance
markets. Obamacare is destabilizing insurance markets, and these
illegal bailouts are destabilizing the rule of law. By ending these
bailouts, Trump can uphold his oath to the Constitution and force
Congress to put an end to the instability Obamacare has created in
health-insurance markets.

Michael F.
Cannon
is director of health policy studies at the libertarian
Cato Institute.

Share |

Bombing Syria Doesn’t Provide Humanitarian Relief

John Glaser

Contrary to the way it has been framed, the Trump
administration’s bombing of a Syrian military base has
virtually nothing to do with humanitarian relief. Hurling 50
Tomahawk missiles at a single military base does not fundamentally
undermine the Assad regime’s ability to harm its own people,
and it has zero chance of altering the military and political
realities on the ground. It is merely a symbolic gesture intended
to deter further use of chemical weapons.

The problem with this rationale, from a humanitarian
perspective, is that by last week the Assad regime had killed
hundreds of thousands of Syrians with conventional weapons. On
Tuesday, it reportedly killed about 75 people with chemical
weapons. If saving Syrians from regime violence is the
justification, this is a wholly irrational way to go about doing
it.

It’s also
unconstitutional and violates international law.

There is no indication, as of yet, that the Trump administration
is even operating under the premise that it needs legal
authorization. Trump did not inform Congress of this elective
bombing mission, much less ask for authorization, as the
Constitution requires. Some members of Congress, including Sens.
Tim Kaine, Rand Paul, and Ben Cardin, have made somewhat hollow demands
that Trump seek congressional approval and legal authorization.
Others, such as Sen. John McCain, Rep. Nancy Pelosi, and Sen. Chuck Schumer, seem all too eager to embrace
the fiction that the president has the legal right to use military
force at his own whim.

Furthermore, as Harvard law professor and former legal counsel
to the George W. Bush administration Jack Goldsmith wrote in 2013, when it looked like President
Obama was on the cusp of ordering a similar strike against Assad,
international law prohibits the use of force without UN Security
Council approval, unless in self-defense. The use of chemical
weapons is a war crime, but so is bombing another country in
violation of the UN Charter.

Put simply, Trump’s decision to attack the Syrian regime
has no legal authority and little chance of actually mitigating the
suffering of Syrians caught in the civil war. In fact, there is no
U.S. military solution to the Syrian conflict. The options that do
exist risk exacerbating regional insecurity and humanitarian strife
and would require a massive commitment in blood and treasure that
the American people seem unprepared to tolerate.

The key now is to see whether Trump will be able to resist the
temptation to escalate and avoid the kind of mission creep that has
sucked the United States into hopeless Middle East quagmires in the
past. Trump administration officials have already begun to imply that removing Assad is
an evolving administration goal now. And Trump’s own party is
already lobbying for expanding the mission to regime change. Sen.
Marco Rubio has called on the administration to increase
support for rebels and coordinate with regional Sunni allies
“to create alternatives to the Assad regime.”

A more paradigmatic example of mission creep would be hard to
invent. If Washington does pursue regime change, it will pit the
United States against Syria’s two main allies, Iran and
Russia, and create a power vacuum in Syria that jihadist groups are
best positioned to fill. In other words, every plausible near-term
consequence of regime change would have catastrophic implications
for U.S. security and regional stability.

Donald Trump has been president for only 77 days, and he has
already violated repeated campaign pledges to avoid wars of
choice in the Middle East and, specifically, to stay out of the
Syrian civil war. The American people should take note that Trump
governs as he tweets: irrationally, inconsistently, and without
concern for the likely adverse consequences.

John Glaser is
associate director of foreign policy studies at the Cato Institute.

Share |

Ending of Filibusters for Supreme Court Nominees Is Long Overdue

Ilya Shapiro

The ending of filibusters for Supreme Court nominees is the long
overdue denouement of a process that began not with Senate
Republicans’ refusal to vote on Merrick Garland, or even Harry
Reid’s elimination of the filibuster for lower-court nominees in
2013, but with Reid’s unprecedented partisan filibusters in
2003.

Recall especially the record seven failed votes to end the
filibuster of Miguel Estrada, who was blocked primarily because
Democrats didn’t want President George W. Bush to appoint the first
Hispanic Supreme Court justice.

RIP Partisan Filibuster
of Judicial Nominees (2003-2017).

What this means for Judge Neil Gorsuch’s nomination is obvious:
He will now be confirmed 30 hours after this “nuclear option” was
invoked, so late Friday. What it means for future nominations is
equally obvious: a president will be able to nominate people who
have majority support, not unlike Clarence Thomas (who was
confirmed 52-48) and Samuel Alito (who was confirmed 58-42),
without worrying about some mythical 60-vote bar.

This came a dozen years too late, but late is better than never.
I lament all the excellent nominees and would-be nominees who
should have been on federal courts throughout the country all these
years.

Of course, it would be even better if super-majorities could
confirm super-qualified nominees, but I don’t begrudge senators of
either party voting no (without filibustering) on nominees they
think would make for bad judges. So the real debate needs to be
over why jurisprudential philosophies—originalism/textualism
versus living-constitutionalism/purposivism—are so different
and which method is better. (Why they now track political parties
is obvious: the parties have completed their wrong realignment
towards ideological cohesion, though this could be short-lived
given our Trumpian world.)

In any case, the Senate is now restored to the status quo ante.
That’s a good thing. RIP Partisan Filibuster of Judicial Nominees
(2003-2017).

Ilya Shapiro
is a contributor to the Washington Examiner’s Beltway Confidential
blog.

Share |

Doing Nothing Is Better Than Acting

A. Trevor Thrall

The Bashar Assad regime’s most recent chemical weapons attack in
Idlib province killed dozens of people and injured many
more. It was a cynical and desperate move by a regime that has lost
all legitimacy in the eyes of the world. But the attack was also
our first opportunity to see what the Trump administration would do
in response to such a situation. 

The answer, as it turned out, was nothing. As strange as it may
sound, that is the right answer in this case.

President Donald Trump and his team are already
getting plenty of heat from political leaders and
pundits in Washington for their lack of follow up. Over time they
can expect increasing pressure to act. Many Americans, like people
all around the world, are shocked and horrified and they will
expect the president to do something about it. Obama drew fire from
both the left and right for his inaction in the wake of the massive
2013 sarin attack near Damascus that killed more
than 1,000 people. 

The Trump administration
is making a smart foreign policy decision not to intervene in Syria
after the recent chemical attack.

But Trump may find himself facing even greater expectations
thanks to his vocal criticism of President Barack Obama’s handling
of Syria throughout his presidential campaign. And on Tuesday the
administration doubled down, with White House Press Secretary Sean
Spicer laying the blame for the most recent attack on Obama,
arguing “President Obama said in 2012 that he would establish
a ‘red line’ against the use of chemical weapons and then did
nothing.”

This is not to say that doing nothing is always the right
course. Sometimes the United States can and should act, as it often
does in response to earthquakes, tsunamis and other natural
disasters. And it is certainly true that the United States has at
times failed to act when it could have prevented grievous harms.
President Bill Clinton, for example, referred to the failure to
intervene in the Rwandan genocide as one of his greatest regrets

But many problems—like the civil war in Syria—are
beyond America’s ability to solve. Obama didn’t eschew intervention
out of a lack of empathy. He chose not to intervene because he had
learned hard lessons from Afghanistan and Iraq. He knew that even
by putting thousands of American soldiers at risk and at great
financial cost, he simply could not promise that the United States
would be able to stop the fighting and put Syria back together
again. 

And so today, despite the Trump administration’s desire to find
a solution for Syria that does not include getting rid of Assad, it
has acknowledged publicly that it cannot see one. Both Secretary of
State Rex Tillerson and Nikki Haley, U.S. ambassador to the United
Nations, have made clear in recent statements that the United
States will no longer make ousting Assad a central tenet of its
Syria policy. As Sean Spicer told
reporters
 at the White House, “There is not a
fundamental option of regime change as there has been in the
past.”

As the Trump administration comes to appreciate these dynamics
in the case of Syria it should apply the same logic to other
problem areas, especially in places such as North Korea, Yemen and
the South China Sea, where U.S. actions have often done more harm
than good of late.

At least since 9/11, the United States has suffered from a
serious tendency to act before it is obvious that action is the
right strategy. The interventions in Afghanistan and Iraq might
have seemed urgently necessary in 2001 and 2003, but viewed in
hindsight it is clear that knowing when not to act is critical to
making sound foreign policy. The same logic and prudence must be
applied today to hotspots around the world. Though unsatisfying to
the public, doing nothing is far better than taking a precipitous
action that risks entangling American and Russian forces in Syria,
or worse, one that ends in a war with China over Taiwan or a
nuclear exchange with North Korea. 

Unfortunately, explaining the decision to do nothing is never
easy, especially in the face of tragedies like Syria or the rampant
fears stoked by acts of terrorism at home and abroad. Nuance and
logic provide cold comfort when people are dying. As a result,
doing nothing is also politically quite challenging. Obama’s policy
of not intervening in Syria may have looked like inaction to most
people from the outside, but there is no question that it took an
immense effort politically. 

The upshot is that the Trump administration’s current approach
to Syria is exactly the right one. The administration should
continue to denounce the attack on moral grounds and call on the
Russians and Iranians to exert pressure on Assad to prevent future
attacks. There is little hope that words alone will do much good,
but avoiding further entanglement in a no-win situation is itself
an important, if invisible, victory for U.S. foreign policy.

Trevor
Thrall
is a senior fellow at the Cato Institute’s Institute’s
Defense and Foreign Policy Department and associate professor at
George Mason University’s Schar School of Policy and Government.

Share |

The Case against National Medical Malpractice Reform

Jeffrey A. Singer

Nobody wants medical tort reform more than me. As a surgeon in
private practice for over 30 years, I feel the sting of exorbitant
malpractice insurance premiums. I hear tales in the hospital
doctors’ lounge of frivolous lawsuits, of suits brought by
ungrateful and misinformed patients, of doctors torn between
feelings of compassion and fear when they interact with many of
their patients. In most states, the cost of bringing a lawsuit is
negligible, while the defense costs, including those to the psyche,
are enormous.’

However, I wince every time I hear politicians and pundits claim
that tort reform is an essential ingredient to “free-market health
care reform”—that it is a “major driver” of rising health
care costs. I know that if they waved a magic wand and completely
eliminated the threat of medical malpractice lawsuits tomorrow,
nothing much would change in the way in which my colleagues and I
practice medicine. True, at the margin, there may be some test here
or there that we may not obtain “to cover our asses” when we know
in advance it is probably unnecessary. But those instances are few
and far between. Generations of practicing under the threat of
malpractice suits have changed the culture of medical practice.
Ordering expensive, redundant, and possibly unneeded tests is now
baked into the cake. Doctors are trained through medical school and
postgraduate residency programs to lean heavily on
testing—from blood tests to high-tech imaging—in their
diagnosis and treatment.

Our third-party payment system has served to nurture this
medical culture. Doctors are rarely concerned about the cost, let
alone the cost/benefit ratio, of various tests, because they never
get asked those kinds of questions by the patients. And why would
they? The doctor and the patient are spending the third party’s
money. The third parties often come up with sets of arcane
requirements for authorization for some of these tests in an effort
to control costs, but as with most bureaucratic roadblocks, it
doesn’t take long to find workarounds, and discover the proper
response needed to trigger an authorization.

Medical tort reform is
overrated. And it’s probably unconstitutional.

While my own experiences as a clinician lead me to conclude that
medical tort reform is not the panacea the politicians and pundits
profess it to be, there is also empirical evidence to support my
position.

In a study on the subject by Ronen Avraham and
others for the National Bureau of Economic Research, the important
point is made that the threat of liability is a two-edged sword.
While reducing the threat might theoretically reduce the ordering
of unnecessary tests and procedures, it might also lead to costly
medical errors and incentivize some unscrupulous practitioners to
recommend profitable but unnecessarily risky procedures. The
study’s authors focused on the impact of tort reform that involved
caps on punitive damages, on awards for “pain and suffering,” and
on limiting “joint and several liability,” i.e., the ability to go
after the entity with “deep pockets” regardless of its degree of
involvement. They followed 10 million non-elderly people in
employer-sponsored health plans from 1998-2006. They found that
such tort reforms reduce premiums of self-insured companies by 1-2
percent, but had no impact on premiums of companies that were not
self-insured, meaning those that used commercial
insurance—ether a PPO or an HMO—to cover their
employees.

A 2014 study reported in JAMA, the journal of
the American Medical Association, by Michael Rothberg and others
concluded, “although a large portion of hospital orders had some
defensive component, our study found that few orders were
completely defensive and that physicians’ attitudes about defensive
medicine did not correlate with cost. Our findings suggest that
only a small portion of medical costs might be reduced by tort
reform.”

In January 2015 the University of Illinois’ Professor of Law and
Medicine David Hyman released two studies on the matter. One found, again, no
significant impact of tort reform on reducing health care costs,
and that reforms using caps might actually increase health care
spending. The other study investigated assertions that states that
institute tort reform would become “magnets” to physicians willing
to relocate. Outside of a slight increase in the population of
plastic surgeons, it found this was not the case. The study was
limited to states with reforms involving caps.

Texas, in 2003, enacted a much more aggressive version of tort
reform than many other states, and some reports suggest it works better. But the data
on Texas are mixed. A 2013 report in the Journal of
Gastrointestinal Surgery
suggested Texas’ reform increased its population of doctors. On the other
hand, a survey of studies in a report by a Dallas medical business
news website suggests the reported benefits of Texas’ tort reforms
are overblown.

And the Cato Institute, in an October 2014 prospective study by Myungho Paik, Bernard
Black, and David A. Hyman reported on Medicare patients who were
followed from 2002-2005 in 9 states that had adopted damage caps.
The study found that Medicare Part A spending did not significantly
change for the enrollees, but Part B spending actually increased by
4-5 percent. It also found that decreases in malpractice paid
claims rates corresponded to increases in Part A and Part B
spending. The authors state, “we provide evidence that physicians
‘do more’ for Medicare patients after adoption of damage caps, but
we do not study what physicians do differently, or why.”

Suffice it to say, at a minimum, that many politicians and
pundits on the right have overstated the effects of medical
malpractice reform on overall health care spending.

But there’s another problem with national malpractice reform,
and it’s a constitutional one. For the most part, medical
malpractice tort law is a state-based issue. Except in the rare
instances in which medicine is practiced interstate, almost all
acts of medical liability occur intrastate. It usurps state
sovereignty when the federal government imposes its preferences
upon a state’s civil tort law regime. Including medical malpractice
reform in a comprehensive national health care reform scheme
contradicts the principles of federalism.

Dean Clancy, a former White House senior official and noted
commentator and columnist, has catalogued quotes from respected constitutional
scholars on the matter of national malpractice reform. Here are a
few examples.

George Mason University Law Professor Ilya Somin has said,
“”Hopefully, at least some Republican conservatives will begin to
see that you can’t advocate strict limits on federal power with one
hand while trying to impose sweeping federal control over state
tort law with the other.”

Georgetown University Law Professor Randy Barnett says, “Senate
Republicans are claiming that Congress has power over the judiciary
of the states because state courts are an activity that ‘affect[s]
commerce.’ With friends like these, constitutional federalism does
not need enemies. Can we coin a new pejorative, FINO: ‘Federalists
in Name Only’?”

Former Virginia Attorney General Ken Cuccinelli, commenting on a
section included in a 2011 Senate Republican jobs bill, said, “with
Senate Bill 197—legislation that would have the federal
government dictate how state judges are to try medical malpractice
cases and cap what state courts may award—several Republican
senators have reminded us that federal impositions on states that
run contrary to the U.S. Constitution and to the spirit of
federalism have never been the sole prerogative of just
Democrats.”

So while singing paeans to national malpractice reform amount to
another example of over-promising by advocates in Congress and
their friends in the punditocracy, it also represents a departure
from their professed fealty to the Constitution and to
federalism.

This doctor is all for tort reform. But it should be done on the
state level.

Republicans should drop malpractice reform from their health
care reform checklist. It’s a distraction from the main goal of
health care freedom and it is probably unconstitutional. It’s also
overrated.

Jeffrey A.
Singer
practices general surgery in metropolitan Phoenix and is
an adjunct scholar at the Cato Institute.