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Economist Josh Hendrickson asserts that the Jones Act is properly understood as a Coasean bargain. In this view, the law serves as a subsidy to the U.S. maritime industry through its restriction of waterborne domestic commerce to vessels that are constructed in U.S. shipyards, U.S.-flagged, and U.S.-crewed. Such protectionism, it is argued, provides the government with ready access to these assets, rather than taking precious time to build them up during times of conflict.

We are skeptical of this characterization.

Although there is an implicit bargain behind the Jones Act, its relationship to the work of Ronald Coase is unclear. Coase is best known for his theorem on the use of bargains and exchanges to reduce negative externalities. But the negative externality is that the Jones Act attempts to address is not apparent. While it may be more efficient or effective than the government building up its own shipbuilding, vessels, and crew in times of war, that’s rather different than addressing an externality. The Jones Act may reflect an implied exchange between the domestic maritime industry and government, but there does not appear to be anything particularly Coasean about it.

Rather, close scrutiny reveals this arrangement between government and industry to be a textbook example of policy failure and rent-seeking run amok. The Jones Act is not a bargain, but a rip-off, with costs and benefits completely out of balance.

The Jones Act and National Defense

For all of the talk of the Jones Act’s critical role in national security, its contributions underwhelm. Ships offer a case in point. In times of conflict, the U.S. military’s primary sources of transport are not Jones Act vessels but government-owned ships in the Military Sealift Command and Ready Reserve Force fleets. These are further supplemented by the 60 non-Jones Act U.S.-flag commercial ships enrolled in the Maritime Security Program, a subsidy arrangement by which ships are provided $5 million per year in exchange for the government’s right to use them in time of need.

In contrast, Jones Act ships are used only sparingly. That’s understandable, as removing these vessels from domestic trade would leave a void in the country’s transportation needs not easily filled.

The law’s contributions to domestic shipbuilding are similarly meager. if not outright counterproductive. A mere two to three large, oceangoing commercial ships are delivered by U.S. shipyards per year. That’s not per shipyard, but all U.S. shipyards combined.

Given the vastly uncompetitive state of domestic shipbuilding—a predictable consequence of handing the industry a captive domestic market via the Jones Act’s U.S.-built requirement—there is a little appetite for what these shipyards produce. As Hendrickson himself points out, the domestic build provision serves to “discourage shipbuilders from innovating and otherwise pursuing cost-saving production methods since American shipbuilders do not face international competition.” We could not agree more.

What keeps U.S. shipyards active and available to meet the military’s needs is not work for the Jones Act commercial fleet but rather government orders. A 2015 Maritime Administration report found that such business accounts for 70 percent of revenue for the shipbuilding and repair industry. A 2019 American Enterprise Institute study concluded that, among U.S. shipbuilders that construct both commercial and military ships, Jones Act vessels accounted for less than 5 percent of all shipbuilding orders.

If the Jones Act makes any contributions of note at all, it is mariners. Of those needed to crew surge sealift ships during times of war, the Jones Act fleet is estimated to account for 29 percent. But here the Jones Act also acts as a double-edged sword. By increasing the cost of ships to four to five times the world price, the law’s U.S.-built requirement results in a smaller fleet with fewer mariners employed than would otherwise be the case. That’s particularly noteworthy given government calculations that there is a deficit of roughly 1,800 mariners to crew its fleet in the event of a sustained sealift operation.

Beyond its ruinous impact on the competitiveness of domestic shipbuilding, the Jones Act has had other deleterious consequences for national security. The increased cost of waterborne transport, or its outright impossibility in the case of liquefied natural gas and propane, results in reduced self-reliance for critical energy supplies. This is a sufficiently significant issue that members of the National Security Council unsuccessfully sought a long-term Jones Act waiver in 2019. The law also means fewer redundancies and less flexibility in the country’s transportation system when responding to crises, both natural and manmade. Waivers of the Jones Act can be issued, but this highly politicized process eats up precious days when time is of the essence. All of these factors merit consideration in the overall national security calculus.

To review, the Jones Act’s opaque and implicit subsidy—doled out via protectionism—results in anemic and uncompetitive shipbuilding, few ships available in time of war, and fewer mariners than would otherwise be the case without its U.S.-built requirement. And it has other consequences for national security that are not only underwhelming but plainly negative. Little wonder that Hendrickson concedes it is unclear whether U.S. maritime policy—of which the Jones Act plays a foundational role—achieves its national security goals.

The toll exacted in exchange for the Jones Act’s limited benefits, meanwhile, is considerable. According to a 2019 OECD study, the law’s repeal would increase domestic value added by $19-$64 billion. Incredibly, that estimate may actually understate matters. Not included in this estimate are related costs such as environmental degradation, increased congestion and highway maintenance, and retaliation from U.S. trade partners during free-trade agreement negotiations due to U.S. unwillingness to liberalize the Jones Act.

Against such critiques, Hendrickson posits that substantial cost savings are illusory due to immigration and other U.S. laws. But how big a barrier such laws would pose is unclear. It’s worth considering, for example, that cruise ships with foreign crews are able to visit multiple U.S. ports so long as a foreign port is also included on the voyage. The granting of Jones Act waivers, meanwhile, has enabled foreign ships to transport cargo between U.S. ports in the past despite U.S. immigration laws.

Would Chinese-flagged and crewed barges be able to engage in purely domestic trade on the Mississippi River absent the Jones Act? Almost certainly not. But it seems perfectly plausible that foreign ships already sailing between U.S. ports as part of international voyages—a frequent occurrence—could engage in cabotage movements without hiring U.S. crews. Take, for example, APL’s Eagle Express X route that stops in Los Angeles, Honolulu, and Dutch Harbor as well as Asian ports. Without the Jones Act, it’s reasonable to believe that ships operating on this route could transport goods from Los Angeles to Honolulu before continuing on to foreign destinations.

But if the Jones Act fails to meet U.S. national security benefits while imposing substantial costs, how to explain its continued survival? Hendrickson avers that the law’s longevity reflects its utility. We believe, however, that the answer lies in the application of public choice theory. Simply put, the law’s costs are both opaque and dispersed across the vast expanse of the U.S. economy while its benefits are highly concentrated. The law’s de facto subsidy is also vastly oversupplied, given that the vast majority of vessels under its protection are smaller craft such as tugboats and barges with trivial value to the country’s sealift capability. This has spawned a lobby aggressively dedicated to the Jones Act’s preservation. Washington, D.C. is home to numerous industry groups and labor organizations that regard the law’s maintenance as critical, but not a single one that views its repeal as a top priority.

It’s instructive in this regard that all four senators from Alaska and Hawaii are strong Jones Act supporters despite their states being disproportionately burdened by the law. This seeming oddity is explained by these states also being disproportionately home to maritime interest groups that support the law. In contrast, Jones Act critics Sen. Mike Lee and the late Sen. John McCain both hailed from land-locked states home to few maritime interest groups.

Disagreements, but also Common Ground

For all of our differences with Hendrickson, however, there is substantial common ground. We are in shared agreement that the Jones Act is suboptimal policy, that its ability to achieve its goals is unclear, and that its U.S.-built requirement is particularly ripe for removal. Where our differences lie is mostly in the scale of gains to be realized from the law’s reform or repeal. As such, there is no reason to maintain the failed status quo. The Jones Act should be repealed and replaced with targeted, transparent, and explicit subsidies to meet the country’s sealift needs. Both the country’s economy and national security would be rewarded—richly so, in our opinion—from such policy change.

Chances are, if you have heard of the Jones Act, you probably think it needs to be repealed. That is, at least, the consensus in the economics profession. However, this consensus seems to be driven by an application of the sort of rules of thumb that one picks up from economics courses, rather than an application of economic theory.

For those who are unaware, the Jones Act requires that any shipping between two U.S. ports is carried by a U.S.-built ship with a crew of U.S. citizens that is U.S.-owned and flies the U.S. flag. When those who have memorized some of the rules of thumb in the field of economics hear that description, they immediately think “this is protectionism and protectionism is bad.” It therefore seems obvious that the Jones Act must be bad. After all, based on this description, it seems like it is designed to protect U.S. shipbuilders, U.S. crews, and U.S.-flagged ships from foreign competition.

Critics seize on this narrative. They point to the higher cost of Jones Act ships in comparison to those ships that fly foreign flags and argue that the current law has costs that are astronomical. Based on that type of criticism, the Jones Act seems so obviously costly that one might wonder how it is possible to defend the law in any way.

I reject this criticism. I do not reject this over some minor quibble with the numbers. In true Hendricksonian fashion, I reject this criticism because it gets the underlying economic theory wrong.

Let’s start by thinking about some critical issues in Coasean terms. During peacetime, the U.S. Navy does not need maintain the sort of capacity that it would have during a time of war. It would not be cost-effective to do so. However, the Navy would like to expand its capacity rapidly in the event of a war or other national emergency. To do so, the country needs shipbuilding capacity. Building ships and training crews to operate those ships, however, takes time. This might be time that the Navy does not have. At the very least, this could leave the United States at a significant disadvantage.

Of course, there are ships and crews available in the form of the U.S. Merchant Marine. Thus, there are gains from trade to be had. The government could pay the Merchant Marine to provide sealift during times of war and other national emergencies. However, this compensation scheme is complicated. For example, if the government waits until a war or a national emergency, this could create a holdup problem. Knowing that the government needs the Merchant Marine immediately, the holdup problem could result in the government paying well-above-market prices to obtain these services. On the other hand, the government could simply requisition the ships and draft the crews into service whenever there is a war or national emergency. Knowing that this is a possibility, the Merchant Marine would tend to underinvest in both physical and human capital.

Given these problems, the solution is to agree to terms ahead of time. The Merchant Marine agrees to provide their services to the government during times of war and other national emergencies in exchange for compensation. The way to structure that compensation in order to avoid holdup problems and underinvestment is to provide this compensation in the form of peacetime subsidies.

Thus, the government provides peacetime subsidies in exchange for the services of the Merchant Marine during wartime. This is a straightforward Coasean bargain.

Now, let’s think about the Jones Act. The Jones Act ships are implicitly subsidized because ships that do not meet the law’s criteria are not allowed to engage in port-to-port shipping in the United States. The requirement that these ships need to be U.S.-owned and fly the U.S. flag gives the government the legal authority to call these ships into service. The requirement that the ships are built in the United States is designed to ensure that the ships meet the needs of the U.S. military and to subsidize shipbuilding in the United States. The requirement to use U.S. crews is designed to provide an incentive for the accumulation of the necessary human capital. Since the law restricts ships with these characteristics for port-to-port shipping within the United States, it provides the firms rents to compensate them for their service during wartime and national emergencies.

Critics, of course, are likely to argue that I have a “just so” theory of the Jones Act. In other words, they might argue that I have simply structured an economic narrative around a set of existing facts. Those critics would be wrong for the following reasons.

First, the Jones Act is not some standalone law when it comes to maritime policy. There is a long history in the United States of trying to determine the optimal way to subsidize the maritime industry. Second, if this type of policy is just a protectionist giveaway, then it should be confined to the maritime industry. However, this isn’t true. The United States has a long history of subsidizing transportation that is crucial for use in the military. This includes subsidies for horse-breeding and the airline industry. Finally, critics would have to explain why wasteful maritime policies have been quickly overturned, while the Jones Act continues to survive.

The critics also dramatically overstate the costs of the Jones Act. This is partly because they do not understand the particularities of the law. For example, to estimate the costs, critics often compare the cost of the Jones Act ships to ships that fly a foreign flag and use foreign crews. The argument here is that the repeal of the Jones Act would result in these foreign-flagged ships with foreign crews taking over U.S. port-to-port shipping.

There are two problems with this argument. One, cabotage restrictions do not originate with the Jones Act. Rather, the law clarifies and closes loopholes in previous laws. Second, the use of foreign crews would be a violation of U.S. immigration law. Furthermore, this type of shipping would still be subject to other U.S. laws to which these foreign-flagged ships are not subject today. Given that the overwhelming majority of the cost differential is explained by differences in labor costs, it therefore seems hard to understand from where, exactly, the cost savings of repeal would actually come.

None of this is to say that the Jones Act is the first-best policy or that the law is sufficient to accomplish the military’s goals. In fact, the one thing that critics and advocates of the law seem to agree on is that the law is not sufficient to accomplish the intended goals. My own work implies a need for direct subsidies (or lower tax rates) on the capital used by the maritime industry. However, the critics need to be honest and admit that, even if the law were repealed, the cost savings are nowhere near what they claim. In addition, this wouldn’t be the end of maritime subsidies (in fact, other subsidies already exist). Instead, the Jones Act would likely be replaced by some other form of subsidy to the maritime industry.

Many defense-based arguments of subsidies are dubious. However, in the case of maritime policy, the Coasean bargain is clear.

We often hear today that there’s an unprecedented “patent litigation explosion” that’s killing innovation. Last week, the New York Times plied this claim without abandon in its hit piece on high-tech patents.  It’s become so commonplace that this phrase garners over 1.3 million hits on Google. It’s especially common fare in discussions about the “smart phone war.”  It was raised repeatedly by my fellow panelists, for instance, at a congressional briefing a few days ago (you can listen to the audio of the event here).

Of course, a blog posting is not a law review article and so I can’t get into all of the weeds here, but a blog is ideal for a few quick reactions to this tread-worn trope in the public policy debates about patents.

First, it’s simply untrue. Award-winning economist, Zorina Khan, reports in her book, The Democratization of Invention, that patent litigation rates from 1790 to 1860 fluctuated a lot, but averaged 1.65%. Today’s patent litigation rates are around 1.5%.  As Yoda would say: patent litigation explosion this is not, hmm, no.  In fact, for three decades in Khan’s study patent litigation rates were higher than today’s litigation rate. From 1840-1849, for instance, patent litigation rates were 3.6% — more than twice the patent litigation rate today.

This was during a time, as reported by patent law professor Michael Risch, when patents were handwritten, and even worse, patents were extremely vague, incoherent and sometimes outright unintelligible.  And, as Professor Risch and others have so ably reported, patent law was very much unsettled at this time as well given the many new ways that the American patent system departed from English patent law. 

And it wasn’t just that the law was new and that patents were vague, as early scientific and technological discoveries were just as difficult to comprehend as the new scientific and technological discoveries are today. Long before Judge Richard Posner was complaining of the lack of technical competence at the PTO or Judge Learned Hand was complaining about his own ignorance of biochemistry in assessing the validity of early pharma patents, Supreme Court Justice Joseph Story was explaining in 1841 that

Patents and copyrights approach nearer than any other class of cases belonging to forensic discussions, to what may be called the metaphysics of law, where the distinctions are, or at least may be very subtle and refined, and sometimes, almost evanescent.

Frankly, with all of the rampant uncertainty in early patent law and in early developments in science and technology — early nineteenth-century scientists, for instance, were still vigorously debating whether the atomic theory of matter was valid — it’s surprising that the patent litigations rates weren’t astronomically higher than just 1.65%, or with many similar problems today that our patent litigations rates are only 1.5%.

The historical patent litigation rates are significant because they also include the same “patent wars” that we are experiencing with the “smart phone war.” The very first patent war began in 1851, and was called at the time in the popular press the “Sewing Machine War.”  The Sewing Machine War had all of the allegedly new problems about which there is much breathless commentary on the “smart phone war” today: lawsuits in multiple venues, expensive litigation, numerous overlapping patents, non-practicing (patent-licensing) entities obtaining injunctions against manufacturers, “defensive patenting,” inventors’ sales of patents to firms, etc., etc. There was even widespread popular outcry over the Sewing Machine War, as it was fought as much in the newspapers as it was in the courts. As the classic saying goes: What’s old is new again.

Importantly, the Sewing Machine War was ultimately resolved by patent-owners innovatively creating the very first patent pool in American history, called the Sewing Machine Combination, which functioned successfully until its last patent expired in the 1870s. The Sewing Machine Combination unleashed a tremendous amount of commercial, technological and even social innovation — including new innovative manufacturing techniques, innovative commercial practices, and even helping change social prejudices about women’s ability to use machines.  As a result, the sewing machine was fundamental to the success of the Industrial Revolution in the U.S., as I have detailed extensively in my historical research.

But even after the Sewing Machine War was brought to an end in 1856 by the Sewing Machine Combination, so-called “patent wars” continued to occur with every pioneering leap forward in technological innovation — the incandescent light bulb, telephone, electrical systems, automobile, airplane, and radio were all subjects of patent wars. Today’s patent lawyers remember very well the “diaper wars” and the “stent wars” of the 1980s, resulting in hundreds of millions of dollars in patent damages awards. If cutting-edge innovation in disposable diapers (a multi-billion-dollar industry, as any parent knows) is the subject of intense patenting and extensive litigation, then frankly we should be unsurprised that this occurs again with 21st-century cutting-edge innovation in smart phones, tablet computers and other digital devices.

Unfortunately, the complaints today about today’s patent litigation crisis arise more from unchecked intuitions about what feels like a bad situation, from unrealistic assumptions about how much certainty we can achieve in the patent system, and from emotionally-compelling anecdotes about innovators running into trouble with patents — like the ones that dominated the New York Times hit piece on high-tech patents a week ago.

As I said in a previous blog posting, it’s time to bring objectivity and a historical-based perspective to public policy discussions about patent litigation, the smart phone wars, and the role of property rights in innovation.

The New York Times set hearts aflutter in the IP world yesterday with its hit piece on patents in the high-tech industry– I’m shocked, shocked to find the New York Times publishing biased articles on hot topics in politics and law — but Bloomberg also published an important article yesterday on the smart phone war, software patents and other topics raised by today’s so-called patent litigation crisis: Apple Phone Patent War Like Sewing Machine Minus Violence.

The Bloomberg article provides some much-needed perspective on the smart phone war, software patents, and other topics in what conventional wisdom today is painting in broad strokes as “Patents Gone Wild! (Special Geek Version!)”

Here’s a great snippet from the Bloomberg article:

In recent years, there have been fights over diapers, air fresheners, oil drilling equipment, and one over heart devices that has lasted more than a decade. None of those got the attention that’s being given to the smartphone wars, which have become fodder for late-night comedians or magazine covers. Still, the public interest isn’t unprecedented: patent battles were front-page news a century ago.

As bloggers are wont to say: Read the whole thing.

Even better from my self-promoting perspective, the Bloomberg reporter tracked me down and asked me about my research into the Sewing Machine War of the 1850s, and she has some nice quotes from me about the lessons we can learn from this first patent war.

In fact, I have another small contribution to make to the Bloomberg article’s important historical perspective on the current hue and cry over the patent system.  In my article on the Sewing Machine War, I quote a lot from old articles in Scientific American that I found in my historical research.  Some of the observations in these ancient Scientific American articles could very well have been published yesterday, which belies the tread-worn cliche (repeated in the New York Times article) that the patent system is experiencing all of these allegedly new problems today. In 1854, for instance, when Scientific American sensed the imminent explosion of the Sewing Machine War, it bemoaned that it is “to be regretted, namely, that whenever a patent becomes valuable, there seems to be no end, at least, for some time, to the troubles of the real benefactor—the one who has rendered it a public benefit.”

Scientific American had reason to complain, because the year before it covered Walter Hunt’s much-publicized challenge to Elias Howe’s patent on the lockstitch, a challenge that was exposed a few years later as being completely supported and bankrolled by the Singer Sewing Machine Co.  So, in 1853, when Hunt published lengthy newspaper advertisements, such as in the New York Daily Tribune, accusing Howe of being a pretender to the throne in first inventing the lockstitch, Scientific American leapt to Howe’s defense, “in order that the ear of the public may not be used as a kettle drum on which to beat the loudest tones for personal purposes.”

We may continue to hope that “the public may not be used as a kettle drum on which to be beat the loudest tones for personal purposes,” but, as the New York Times made clear yesterday, some things never change — in 1853 or in 2012.

Usual caveats for a Lambert weekend post: Post is off-topic for this blog and represents my own opinion only.

Well, he’s done it.  President Obama has ordered his Department of Justice to appeal the district court order abrogating Don’t Ask, Don’t Tell.  DOJ initiated the appeal on Thursday.

Mr. Obama says that he has no choice but to do this.  While he is so very deeply opposed to Don’t Ask, Don’t Tell — not opposed enough to make a solid push for legislation to repeal the highly unpopular law during the two years that his party has controlled Congress, but really, sincerely opposed — his Department of Justice is required, he says, to defend all the laws Congress passes. 

I suppose that this requirement comes from the Take Care Clause of the U.S. Constitution (Art. II, Sec. 3), which says that the Executive “shall take Care that the Laws be faithfully executed.”

But wait a minute… The Take Care Clause didn’t stop Mr. Obama from ordering his Justice Department to refuse to enforce the federal marijuana laws in states that permit medical marijuana.  One would think that if a duty to “faithfully execute” the laws means you must defend them, it also means you must enforce them.  After all, “enforcement” of a law is more clearly a component of execution than is “defense” of that law.  One could, of course, interpret the Clause to vest the enforcement prerogative in the Executive, so that he has the authority to refuse to enforce some federal laws.  If that’s the case (and I believe it is — see Heckler v. Chaney, 470 U.S. 821, 832 (1985) (“[T]he decision of a prosecutor in the Executive Branch not to indict has long been regarded as the special province of the Executive Branch, inasmuch as it is the Executive who is charged by the Constitution to ‘take Care that the Laws be faithfully executed.’ ”)), then the medical marijuana stance is appropriate.  But if the Clause permits this sort of discretion on enforcement, which lies at the very heart of execution, then it surely gives the Executive the authority to refuse to defend repugnant, constitutionally suspect statutes. 

Indeed, every modern President has decided not to defend the constitutionality of some challenged statutes.  Here are some recent examples of cases in which a President has ordered his subordinates to join lawsuits opposing federal laws or to refuse to defend such statutes (HT: John Aravosis):

  • George W. Bush (ACLU et al., v. Norman Y. Mineta — “The U.S. Department of Justice has notified Congress that it will not defend a law prohibiting the display of marijuana policy reform ads in public transit systems.”);
  • Bill Clinton (Dickerson v. United States — “Because the Miranda decision is of constitutional dimension, Congress may not legislate a contrary rule unless this Court were to overrule Miranda…. Section 3501 cannot constitutionally authorize the admission of a statement that would be excluded under this Court’s Miranda cases.”);
  • George H. W.  Bush (Metro Broadcasting v. Federal Communications Commission);
  • Ronald Reagan (INS v. Chadha — “Chadha then filed a petition for review of the deportation order in the Court of Appeals, and the INS joined him in arguing that § 244(c)(2) is unconstitutional.”)

There are others.  See, e.g., American Federation of Government Employees v. Pierce, 697 F.2d 303 (D.C. Cir. 1982); Consumers Union v. FTC, 691 F.2d 575 (D.C. Cir. 1982); Consumer Energy Council v. FERC, 673 F.2d 425 (D.C. Cir. 1982); Clark v. Valeo, 550 F.2d 642 (D.C. Cir. 1977); McCorkle v. United States, 559 F.2d 1258 (4th Cir. 1977); Atkins v. United States, 556 F.2d 1028 (Fed. Ct. Cl. 1977); National Wildlife Federation v. Watt, 571 F. Supp. 1145 (D.D.C. 1983); Pacific Legal Foundation v. Watt, 529 F. Supp. 982 (D. Mont. 1981).

Putting aside the legal arguments, though, the most troubling thing about this situation is how easily it could have been avoided.  A huge majority of Americans (over three-quarters) oppose Don’t Ask, Don’t Tell.  The President insists that he does too, and he concedes that the policy hurts the armed forces of which he is Commander-in-Chief.  (In his own words: “’Don’t Ask, Don’t Tell’ doesn’t contribute to our national security. … [P]reventing patriotic Americans from serving their country weakens our national security. … [R]eversing this policy [is] the right thing to do [and] is essential for our national security.”  Also: “We cannot afford to cut from our ranks people with the critical skills we need to fight any more than we can afford — for our military’s integrity — to force those willing to do so into careers encumbered and compromised by having to live a lie.”)  For two years, Mr. Obama has been supported by a Democratic congressional majority that has shared his views on DADT and has been so willing to do his bidding — public opinion be damned! — that it’s about to lose its majority status.  Had the President stepped up, judicial resolution of this issue would never have been required.

My friend Patrick Guerriero, former executive director of the Log Cabin Republicans, recently emailed me the statement he released when the Don’t Ask, Don’t Tell lawsuit was filed.  The statement said:

A lawsuit should not be necessary when public opinion overwhelmingly favors gays and lesbians serving openly and honestly. A lawsuit should not be necessary when the experience of our allies in the war on terror, including Great Britain, Israel and Australia, all allow gays and lesbians to serve openly and honestly. A lawsuit should not be necessary when our military has lost thousands of needed military personnel under this policy. However, under these circumstances, where we are a nation at war fighting a global war against terrorism, we can no longer sit by and wait for our elected officials to find the political courage to do the right thing.

Patrick made that statement on October 12, 2004, during George W. Bush’s first term.  How appalling is it that the lawsuit has still proven necessary after two years of a Democratic administration and one of the largest Democratic congressional majorities in history?

More on this issue here and here.

Please do not miss this, folks.

The President of the United States has now ordered his Department of Justice to fight a group of Republicans who secured a court ruling that the “Don’t Ask, Don’t Tell” policy is unconstitutional and are trying to have it enjoined. This from a man who promised during his campaign that he would fight to repeal DADT; who has convincingly and correctly declared that the policy impairs the effectiveness of the United States military, of which he is Commander-in-Chief; who has been willing to put principle before political expediency, as when he boldly stood up for the constitutional rights of Muslims to build a mosque near ground zero; and who has mad political skills, as he demonstrated in orchestrating an unprecedented use of the reconciliation process to enact legislation that was opposed by a majority of Americans and is now so unpopular that not a single Democratic member of Congress is campaigning on his or her support for the legislation.

Mr. Obama insists that it his duty as President to defend and enforce the laws of the United States. But he had no problem instructing his Justice Department to ignore federal laws prohibiting the possession and sale of medical marijuana. (I’m not suggesting he was wrong on that; he wasn’t. I’m just saying it’s a bit hypocritical to insist that you always must enforce and defend all the laws Congress passes when, in fact, you sometimes haven’t done so.)

Mr. Obama also insists that a legislative repeal of DADT would be superior to resolution in the courts. On that point, he is absolutely correct. To ensure social stability and legal legitimacy (and to limit the politicization of judicial appointments), fact-intensive, value-laden decisions are best left to the political branches, whose democratic credentials and fact-finding abilities greatly exceed those of courts. I’m frankly suprised to hear Mr. Obama assert this sort of “institutional competence” argument, though.  He was my Constitutional Law professor and was very clear about his support for Roe v. Wade, the poster child for judicial usurpation of a fact-intensive, value-laden decision that should have been left to legislative resolution.

In any event, we would have had a legislative repeal of DADT by now if Mr. Obama had chosen to lead on this issue.  The Democratic Congress has kowtowed to the President for the last two years (see, e.g., the enactment of the unpopular health care law and the vote by 46 of the 54 professed “Blue Dogs'” in favor of the trillion-dollar “stimulus”) and certainly would have fallen in line.  No filibuster would have occurred in the Senate had the issue been addressed earlier and in a less procedurally suspect fashion.  (Senator Collins, for one, would have voted for the bill had amendments and debate not been limited.) 

The President, predictably, is blaming Congress for the mess he now finds himself in (i.e., fighting a Republican attempt to end DADT).  As Press Secretary Robert Gibbs explained, “The President was disappointed earlier this week when a majority of the Senate was willing to proceed with National Defense Authorization Act, but political posturing created a 60 vote threshold.”  But if Mr. Obama had led on this matter earlier, he surely could have secured a legislative fix.  After all, more than three-quarters of Americans oppose DADT

Ultimately, the buck stops with you, Mr. President.  In fact, you might want to take a page from the President who popularized that phrase. He, like you, faced military leaders who were afraid to change a discriminatory policy that was ultimately undermining our military’s strength. He, however, chose to lead.

And to the many gay people out there who generally oppose undue government intervention in private ordering (economic affairs included) but who reflexively support big government politicians because they’re “good on gay issues,” please grow up.

(More here.)

The Audacity of Nope

Thom Lambert —  11 September 2010

Please note that the following post is a bit off-topic for this blog and represents my own opinion only, not that of any of my co-bloggers. But, hey, it’s Saturday.

For the past 599 days, we’ve had a talented young Democratic President and Democratic majorities in both the U.S. House of Representatives and the U.S. Senate. In those 599 days, our talented young President and the Democratic majority in Congress have racked up quite a list of accomplishments. Refusing to be hindered by a lack of popular support for their initiatives, pesky aspirations of bipartisanship, statutory impediments to the outcomes they favor, or constitutional constraints on their power, our talented young President and his fellow Democrats in Congress have:

  • Enacted sweeping health care legislation that was opposed by a majority of Americans, garnered no Republican support, could not pass except via an unprecedented use of the reconciliation process, and appears to exceed Congress’s enumerated powers by imposing a fine that’s not really a tax but also doesn’t regulate commerce (indeed, it regulates non-commerce by punishing Americans who decline to purchase a product from a private seller). 
  • Approved,  with almost no bipartisan support (only that of Senators Snowe, Collins, and then-Republican Specter), almost a trillion dollars in “stimulus” spending, which was largely doled out to politically favored groups (so that we now apparently need to spend another $50 billion to fix all that crumbling infrastructure the first stimulus was supposed to address).                                                                                                                              
  • Nationalized what was until recently the world’s largest automaker, pouring $50 billion into General Motors in exchange for a 61% ownership interest.                                                                                                                                                                                                                                                                         .
  • Circumvented the normal rules of bankruptcy so as to elevate Chrysler’s junior (union) creditors over its senior (bondholder) creditors and ensure that the unions retain control of the company.  (Of course, this occurred only because the Chrysler bondholders refused to kowtow when our talented young President chastised them for asserting their contractual rights.)                                                                                                                                                                
  • Passed, with the support of only three Republicans in the House and three others in the Senate, a 2,300-page financial reform law that creates a new bureaucracy to regulate the provision of credit to consumers, institutionalizes the notion of “too big to fail,” limits the degree to which financial derivatives may simultaneously hedge risk and provide the market with invaluable information about firms’ financial prospects, creates a systemic risk regulator to perform the heretofore impossible task of identifying incipient asset bubbles, and calls for 243 new rulemakings by 11 different federal agencies.  All this while leaving Fannie Mae and Freddie Mac untouched.

Quite clearly, our talented young President and his fellow Democrats that constitute majorities in both chambers of Congress can get things done when they really want to.

Washington Post columnist Eugene Robinson, who recently accused the American public of acting like a bunch of spoiled brats because they appear poised to issue an electoral rebuke to President Obama and congressional Democrats, shares my admiration for the President’s ability to get things done.  In a recent column entitled President Obama’s Winning Streak, Robinson purported to “break from journalistic convention” and “give credit where it’s due — specifically to President Obama.”  He then highlighted four of the President’s recent accomplishments: removing combat troups from Iraq, saving General Motors, stopping the BP oil spill and “persuad[ing]” BP to put $20 billion into a fund for trustee laureate Kenneth Feinberg to distribute (how does Feinberg find the time to do all that trusteeing?!), and displaying moral leadership on the Lower Manhattan mosque issue.  With respect to the last matter, Robinson praised the President for honoring principle over politics: 

Supporting the mosque in Lower Manhattan didn’t score any political points. But Obama saw his duty to uphold the values of our Constitution and make clear that our fight is against the terrorists, not against Islam itself. Instead of doing what was popular, he did what was right.

Given Mr. Obama’s apparent (and, I believe, good faith) commitment to tolerance and equality; his formidable political skills; the unwavering support he enjoys from a solid congressional majority; and his willingness to buck popular opinion, to engage in legislative manuevering, and to bend statutes and push the limits of constitutional constraints in order to achieve goals he deems important, how ironic is it that it took a lawsuit by the Log Cabin Republicans to condemn one of the most crass examples of unjustifiable government discrimination in recent history? “Don’t Ask, Don’t Tell” — a policy that makes lying a condition of public service, that has resulted in nearly 14,000 men and women being discharged from our voluntary military not because they did anything harmful but because of who they are, that has caused us to lose so many qualified military candidates that we have had to lower educational and physical fitness standards and to dramatically increase our issuance of “moral waivers” to felons who otherwise would be barred from military service — is a travesty. Does anyone seriously believe there is a problem with unit cohesion among the British soliders who from the beginning have fought right next to Americans in Afghanistan and Iraq? Or that the Israeli military — you know, the one comprised of men and women who dodge rockets on a daily basis and are surrounded by people that want to wipe them off the map — is somehow weaker because it includes openly gay soldiers?

I know President Obama doesn’t believe those things. In fact, on June 29, 2009, he said:

“Don’t Ask, Don’t Tell” doesn’t contribute to our national security. … [P]reventing patriotic Americans from serving their country weakens our national security. … [R]eversing this policy [is] the right thing to do [and] is essential for our national security.

A few months later, he reiterated:

We cannot afford to cut from our ranks people with the critical skills we need to fight any more than we can afford — for our military’s integrity — to force those willing to do so into careers encumbered and compromised by having to live a lie.

But when asked to flex his impressive political muscle to right the wrong (and stupidity) that is Don’t Ask, Don’t Tell, Mr. Obama has said no. His Department of Justice (yes, Mr. President, you control it) has aggressively fought the Log Cabin Republicans’ attempt to abrogate the policy. Unlike Harry Truman, who in 1948, over the protests of military leaders, ended racial segregation in the armed forces with the stroke of a pen, Mr. Obama has done almost nothing of substance on Don’t Ask, Don’t Tell. Congress must take the lead on this one, he says. (But the Democratic majority consistently follows your leadership, sir.) I must follow the counsel of military leaders and wait on them to develop an elaborate plan for ending the policy, he insists. (But you are commander-in-chief of the armed forces, sir. And what kind of elaborate plan is required to stop affirmative acts of discrimination? Just stop them. It’s not that hard.)

Perhaps I’m being too simplistic here. I realize that the armed forces are special, that there’s no constitutional right to serve in the military, that the military requires a certain discipline and mentality that doesn’t permit free expression of members, that unit cohesion is important, etc. But the facts remain that Mr. Obama has admitted (and campaigned on) his belief that the current policy is both unjust and strategically unwise, that his party controls Congress, and — importantly — that opposition to Don’t Ask, Don’t Tell is politically popular. (Recent polling indicates that 78% of Americans oppose the policy and support permitting openly gay men and women to serve in the military.) Mr. Obama’s refusal to lift a finger on this issue (except, perhaps, his middle one – pointed in the direction of the gay community that has offered him unwavering support), when he has been willing to thumb his nose at popular opinion on so many other matters, is audacious indeed.

Hopefully, the many, many gay people who favor freedom of all varieties (economic included) will learn something from the last 599 days and stop reflexively supporting candidates whose economic policies they oppose just because those candidates mouth the right words on gay rights.

This is a little off-topic, but it’s something I gotta say.

Last month I visited Tuol Sleng Genocide Museum in Phnom Penh and came away deeply impressed with the importance of confronting the consequences of abandoning civilians to ruthless and lawless regimes. The linked website has a picture of a sign at the school converted into a horrendous prison that has the new playground rules (I stared long and hard at the real thing last month and took my own picture of it):

1. You must answer accordingly to my question. Don’t turn them away.

2. Don’t try to hide the facts by making pretexts this and that, you are strictly prohibited to contest me.

3. Don’t be a fool for you are a chap who dare to thwart the revolution.

4. You must immediately answer my questions without wasting time to reflect.

5. Don’t tell me either about your immoralities or the essence of the revolution.

6. While getting lashes or electrification you must not cry at all.

7. Do nothing, sit still and wait for my orders. If there is no order, keep quiet. When I ask you to do something, you must do it right away without protesting.

8. Don’t make pretext about Kampuchea Krom in order to hide your secret or traitor.

9. If you don’t follow all the above rules, you shall get many many lashes of electric wire.

10. If you disobey any point of my regulations you shall get either ten lashes or five shocks of electric discharge.

Here’s a picture I took inside one of the cells.

Bret Stephens, writing in today’s WSJ, juxtaposes the angst concerning the Afghan war in the wake of WikiLeak with the recent first conviction in the Cambodian genocide trial:

The Cambodian genocide is especially worth recalling today not only for what it was, but for the public debates in the West that immediately preceded it. “The greatest gift our country can give to the Cambodian people is peace, not guns,” said then-congressman, now senator, Chris Dodd, by way of making the case against the Ford administration’s bid to extend military assistance to the pro-American government of Lon Nol.

In the New York Times, Sydney Schanberg reported from Cambodia that “it is difficult to imagine how [Cambodian] lives could be anything but better with the Americans gone.” Mr. Schanberg added that “it would be tendentious to forecast [genocide] as a national policy under a Communist government once the war is over.”

A year later, Mr. Schanberg was awarded a Pulitzer Prize, though not for tendentiousness.

All in all, America’s withdrawal from Southeast Asia resulted in the killing of an estimated 165,000 South Vietnamese in so-called re-education camps; the mass exodus of one million boat people, a quarter of whom died at sea; the mass murder, estimated at 100,000, of Laos’s Hmong people; and the killing of somewhere between one million and two million Cambodians.

In Phnom Penh I was hearing figures upwards of 3 million.

As Stephens says, the argument for exit from Afghanistan “is an argument based on a bloodless tabulation of economic and strategic costs and benefits, an argument about whether * * * the U.S. really has a dog in this fight.”

That might or might not be right. I wonder whether it takes fully into account the long-term costs, both globally and to the U.S., of permitting genocide. It’s ironic that many of those making the argument scream the loudest when an evil corporation ignores “externalities” in favor of its bottom line. In any event, the Nazi era is still too recent for me to accept this type of argument. I at least hope that some of the people who are making the argument could visit Tuol Sleng.