Law & the Courts

FBI
Should Lying to the Police Be a Crime?

(Sait Serkan Gurbuz/Reuters)

Professor Stephen Carter and Ken White (of the Popehat website) have written two columns raising a point that has bothered me for a long time. Thanks to Instapundit for the links.

The point is this: The police agencies of the federal government can, and do, charge people for lying to them in the course of a criminal investigation, even when the agencies cannot prove the crime they are investigating, and even it turns out that there was no crime at all. The law that permits this is Section 1001 of Title 18, which makes it a crime to:

“knowingly and willfully . . . make[] any materially false, fictitious, or fraudulent statement or representation” in the course of “any matter within the jurisdiction of the executive, legislative, or judicial branch” of the federal government.

As Carter and White note, Section 1001 allows the federal government to bootstrap itself to conviction of a person who had done nothing wrong, or nothing criminal anyway, until the government talked with him.

It’s happening more and more. The FBI gathers information about a person, finds facts that the person might want to conceal — not because the facts prove a crime but because they are embarrassing for some other reason — then asks about those facts in an interview, on the expectation that the person will lie and thereby incriminate himself.

This strikes me as quite wrong.

The whole process smacks of entrapment. In such cases, the law-enforcement officers are actually hoping to generate a crime. They want people to lie to them; in fact, they are highly trained in the art of getting the interviewee to tell a lie when he didn’t intend to.

There are enough real crimes and real criminals without the government deliberately creating new ones. In fact, the government might be able to focus better on catching people who are actually dangerous — like this person, for example — if it wasn’t using its resources to get people who were innocent until they made the mistake of talking with representatives of their government.

The short of it is that federal agents and prosecutors are supposed to target crime; Section 1001 encourages them to target people. It allows them to investigate with the intent of putting some target in jail even if the investigation reveals no crime.

It’s especially unfair because it takes advantage of the widespread belief that lying to the police or prosecutors is not a crime unless it occurs under oath. Why, the average person naturally thinks, does the government make perjury a crime if lying to federal authorities in any context is already a crime?

I’ll go further and say that Americans may be forgiven for believing that lying during interactions with the police is almost a time honored national tradition. The police can and do deceive suspects in order to elicit incriminating admissions. And most of us grew up watching criminal-justice shows on TV, where otherwise innocent people routinely deceive the police without being arrested for it. (I will date myself and admit that I am a fan of the old Perry Mason show, where everybody lied, all the time; one of Mason’s constant complaints was that his own clients wouldn’t even tell him the truth.) And in fact you can lie to local and state police without committing a crime; as far as I know, it’s only the federal government that punishes lying to its agents.

I am not of course defending lying — it’s prohibited by a power Who outranks me considerably — but the point is that average people believe, and quite reasonably, that outside the courtroom they can try to deceive the police without thereby subjecting themselves to prosecution. In fact, I would wager that even most lawyers, if they do not practice federal criminal law, believe that lying to federal agents in the course of an interview, without more, is not a criminal offense.

It might be, and usually is, stupid to lie to the police. It encourages them to believe that you may be hiding a crime, and it can be used to impeach the liar if and when he gets on the witness stand. But by itself it should not be a crime.

Moreover, Section 1001 discourages people from cooperating with federal agents. The natural impulse of most innocent people is to help the FBI or other federal police agencies. That is an impulse a sane criminal-justice system should want to encourage. To the extent people come to understand that simply by answering questions they are exposing themselves to legal risk, they will refuse to do the interview. Ken White already advises his clients never to talk voluntarily with agents of the federal government. If I were still practicing law, I would do the same.

That makes Section 1001 a trap for the unwary. Those who lawyer up as soon as the FBI calls will be protected. Those who don’t have the means to do that, or who naïvely assume that if they are innocent and cooperate with their government they will surely be safe, get caught in the snare.

So what should be done?

The cleanest thing would be for Congress to repeal Section 1001. There would still be many much fairer ways for the government to compel people to give information and to tell the truth in doing it, as for instance by empaneling a grand jury and calling them as witnesses. And Congress could still make lying a crime in specific circumstances (such as when a person is doing business with the government, which seems to have been the original intent of Section 1001) or when the lie is part of a broader conspiracy to obstruct justice.

Short of that, Congress could require federal agents to warn people, at the beginning of any interview, that they have the right not to answer any questions or to consult an attorney before they do, and that if they lie during the course of the interview they can be prosecuted even if they have committed no other crime. If that sounds a lot like the famous Miranda statement of rights, that’s because it is; but the Miranda ruling currently applies only when a person has been taken into custody.

Another alternative would be for Attorney General Sessions simply to direct the Department of Justice not to prosecute individuals for lying to federal agents, at least if the Department cannot establish that some other underlying crime justified the investigation in the first place. The downside of that is that it would only be the policy of one attorney general, subject to change as soon as he was gone.

I realize that this issue has arisen in the context of the Mueller investigation, and that therefore taking a position on the merits of it is likely to excite partisan instincts on both sides. As a practical matter, nothing is going to be done until the Mueller completes his inquiry. But when the political controversy dies down, the House and Senate Judiciary Committees should seriously examine Section 1001 with a view towards repeal or major reform. I see no reason why that inquiry should be partisan.

Maybe I’m missing something — I’d appreciate hearing the views of someone such as Andy McCarthy on the subject — but this seems to be a clear abuse, and with all due respect to the nation’s U.S. attorneys, I don’t trust prosecutorial discretion to deal with it.

Law & the Courts

Gun Control
For Gun Controllers, the Courts Are a Minor Problem

(Yuri Gripas/Reuters)

Bret Stephens recently reiterated his call for repealing the Second Amendment. At Bloomberg View, I argue that this is a dead end for anyone seeking to reduce the incidence of murder or massacres.

The first step of the Stephens plan is, in other words, to get nearly everyone in the country to agree that the Constitution should not protect gun rights. He offers no explanation of how this would be accomplished. His columns amount to wishing away the disagreement he seeks to overcome.

A related mistake gun controllers make is to overestimate the practical importance of the Supreme Court’s decisions on guns notably its 2008 decision in D.C. v. Heller recognizing an individual right to own guns. Here, for example, is Democratic operative Dan Pfeiffer in an article from last October that is again making the rounds:

It is certainly true that our short-term policy positions must pass the Heller test, but it is also a major strategic error to confine our vision to a Supreme Court decision that many legal scholars find ridiculous and many generations of judges would find astonishing. Just as Republicans organize themselves around efforts to overturn Roe v. Wade, Democrats should run on changing the balance of federal courts in ways that will make it less likely that citizens will be slaughtered simply because they went to the wrong concert, movie theater, or school.

In thinking about Heller’s practical effect on gun policy, we should remember three points.

  1. None of the policies that Pfeiffer recommends — including a national gun registry and a national gun buyback policy on the Australian model (which, presumably, means it would be mandatory)–has been adopted by the political branches and then struck down by the courts.
  2. American gun laws were roughly as permissive as they are now, and more permissive than those of most other advanced countries, before Heller.
  3. The Supreme Court has left open the question of whether a ban on assault weapons would violate its interpretation of the Second Amendment. It has not had to rule on the constitutionality of a federal ban because advocates of a ban have not been able to get more than 40 votes for their position in the Senate in recent years.

Judicial enforcement of the Second Amendment is simply not a major constraint on gun control. The gun-control agenda’s primary problem is political: Too few Americans have passionately supported it, and too many Americans passionately opposed it, for it to prevail.

Culture

bioethics
Another U.K. Shut-Off-the-Baby’s-Life-Support Case

Supporters of Charlie Gard’s parents react outside the High Court during a hearing on the baby’s future, in London, July 24, 2017. (Peter Nicholls/Reuters)

Readers may remember the Charlie Gard gross injustice, in which U.K. courts both ordered a terminally ill baby’s life support discontinued and refused to allow his parents to take the baby to a U.S. doctor who hoped he might be able to extend the boy’s life. Eventually, the U.S. doctor said it was too late, and the parents permitted the life support to be withdrawn.

Now, in the Baby Alfie case — about which I have written here before — the same travesty is unfolding: Only this time, the hospital demands the baby’s death despite there being no diagnosis as to the cause of his neurological malady. From the BBC story:

A hospital trust prevented a 19-month-old with a mystery illness being transferred to Italy in a row over life-support treatment, a court heard.

Doctors at Liverpool’s Alder Hey Children’s Hospital believe it is in Alfie Evans’ best interests to stop “mechanical ventilation”.

His parents, Tom Evans and Kate James, disagree and want him to be moved to a hospital in Rome.

Mr Justice Hayden said no decisions would be made until the New Year.

The hospital described Alfie as being in a “semi-vegetative state”.

I guess that means minimally conscious. But whether conscious or unconscious, it is unconscionable that a hospital would both want to terminate efficacious-life extending treatment and prevent the parents from transferring the baby to a hospital willing to continue care.

Realize, the hospital wants the treatment terminated, including tube-supplied food and water, because it works, — e.g., it is keeping the baby alive — rather than because it is ineffective.

This is an example of a bioethics meme called “futile care,” in which doctors are allowed to refuse wanted treatment if they believe the quality of the patient’s life isn’t worth living.

Such coercion happens in the U.S. too. But I know of no cases here in which a family is both banned from requiring care to continue and from transferring their loved one to a different facility willing to provide continued care.

Let us hope the court in Alfie’s case both requires life-support to continue and/or allows the transfer. Forcing this baby to die when there is no diagnosis would be an act of naked medical authoritarianism.

Education

Higher Education
Many Professors Just Aren’t Professional

Former University of Missouri professor Melissa Click. (Photo: Wikimedia Commons)

The academic enterprise consists of the quest for truth, but as Wake Forest University professor Jim Otteson argues in this Martin Center essay, the emphasis should be more on “quest.” Today, many professors focus upon “truth” and, convinced that they have found it, begin acting in decided unprofessional ways.

Otteson writes,

Academics in fact have a dual professional responsibility. The first is to master our fields and to convey their achievements to each new generation of students. The second responsibility is to the tradition of inquiry itself, stewarding our noble profession.

That tradition of inquiry requires dispassionate teaching and research. Much too often, however, professors let their emotions take over. “We deal in thoughts and ideas, in hypotheses and conjectures, in proposals and arguments, in criticism and counter-argument. If a hypothesis or proposal seems false, our professional responsibility is to demonstrate that by the process of falsification that is the core characteristic of our profession,” Otteson writes.

Just let a student question, say, “intersectionality” in a course on women’s studies and see if he or she receives a scholarly demonstration or a burst of anger from the professor.

Otteson has himself suffered plenty at the hands of fellow faculty members who decided that they had to loathe him because his Eudaimonia Institute received some funding from the Koch Foundation.

He concludes,

Whenever a professor moves from dispassionate inquiry to partisan advocacy, that is a betrayal of higher education’s mission and a breach of academic professionalism. If higher education is to fulfill its proper mission and serve its proper purpose, all its members must dedicate themselves to embracing their responsibilities not as defenders of a faith, but as professional pursuers of knowledge.

Economy & Business

Big City Offers to Amazon Are Rapidly Turning into Corporate Welfare

(Reuters photo: Mike Segar)

On paper, conservatives love the idea of states and localities competing with each other to create the best environment for businesses. But reality is a little messier.

Local governments can forget that they’re supposed to build a good environment for all businesses, large and small, and not just one particular large employer. This is how you end up with “corporate welfare” — special tax breaks, subsidies, zoning restrictions, and other benefits that one company gets to enjoy, getting a competitive advantage over everyone else.

Online retail giant Amazon is looking for a location for its second headquarters, and boasts that it expects to invest more than $5 billion in construction, and that the site could eventually host “as many as 50,000 high-paying jobs.” They announced 20 finalists, a competition that some are jokingly (or perhaps not-so-jokingly) calling a “Hunger Games” for cities.

Cities are hungry for those jobs, and making some huge offers to the company — ones that some might call absurd.

Chula Vista, Calif. — not a finalist — wanted to give Amazon more than 80 acres of land and exempt the company from property taxes for 30 years, an estimated $300 million. Another non-finalist, Fresno, Calif., proposed putting 85 percent of Amazon’s tax revenue into a special fund that would be partially controlled by the company.

Chicago, which is a finalist, said that it and the state of Illinois would provide the company up to $2 billion in tax breaks, including a tax credit that is the equivalent of half of their employees’ income taxes. Some have characterized this sort of deal as effectively paying your taxes to your boss.

Those are just the offers we know about; quite a few cities are keeping the details of their offer to Amazon secret.

Generation Opportunity, part of the Koch Seminar Network, is less than thrilled with all of this. They’re launching  a new paid digital ad in the 19 U.S. markets that Amazon is currently considering as a location for their HQ2. (Washington D.C., northern Virginia, and Montgomery County are effectively the same market.)

“Instead of offering sweetheart deals to wealthy special interests that don’t need the help, governments at every level should focus on creating fair economic environments that give all businesses — including young entrepreneurs — the opportunity to compete and succeed on an even playing field,” said David Barnes, policy director for Generation Opportunity.

Economy & Business

Google
More Antitrust Revisionism Aimed at Big Tech

(Reuters photo: Francois Lenoir)

In a long but surprisingly weak story, the New York Times’ Charles Duhigg is the latest analyst to try to find an argument for why antitrust law should be used to break up Big Tech firms (Duhigg’s particular target is Google). In so doing he makes many of the same mistakes that have been made repeatedly on both the left and the right — but at least he doesn’t go so far as to claim that Apple is the sex organ of the Big Tech body politic, as a particularly bizarre piece in Esquire did a couple of weeks ago. The mistakes include taking debunked claims from competitors at face value, ignoring empirical data, and applying a revisionist history to how antitrust law has developed.

The story frames itself around the claims of a British couple that Google unfairly deprecated the results of their own “vertical search” comparison-shopping site, Foundem, in its search results. The European Commission agreed with this complaint, giving a veneer of respectability to the claim. Indeed, from reading the article one might think that Foundem was a revolutionary technology that should supplant Google and would do so were it not for those pesky engineers at the Googleplex.

Yet that impression would be wrong. As this article from 2009 (when Foundem’s complaints about Google were really getting serious) makes clear, the site was “a study in SEO (Search Engine Optimization) fail.” It was merely an aggregator of content produced by others, with “duplicate content all over the place,” that failed to deliver the sort of useful information that Google users would want.

Indeed, as my colleague Geoff Manne put it, Google had a very simple and reasonable business case for not highlighting Foundem:

In fact, all Foundem does, in essence, is pull information from other sites and present it on its own.  While in general this is little different than what Google does (although the quality of the information and its presentation may be different), from the point of view of a user who has already searched once in Google, the prospect of Google serving up sites requiring the user to make duplicate searches in other search engines to find the information she is looking for would seem to be pretty poor.

Yet — and this is the really important point when it comes to antitrust law — the claim that Google unfairly penalizes vertical-search competitors has already been investigated by the Obama-era Federal Trade Commission, which found there was no case to answer. It found that

the evidence presented at this time does not support the allegation that Google’s display of its own vertical content at or near the top of its search results page was a product design change undertaken without a legitimate business justification. Rather, we conclude that Google’s display of its own content could plausibly be viewed as an improvement in the overall quality of Google’s search product. Similarly, we have not found sufficient evidence that Google manipulates its search algorithms to unfairly disadvantage vertical websites that compete with Google-owned vertical properties.

This then ties into the point that Duhigg has ignored the nature and practice of American antitrust law over recent decades. As I mentioned in my previous Corner post on this subject, American antitrust law differs from European in that it does not really mind market dominance as long as consumer welfare is not impacted. If Google’s search algorithm was really disadvantaging the consumer by not prominently displaying its competitors, the Obama FTC and/or Department of Justice would have taken action. They did not.

Indeed, Duhigg actually comes up with a whole new interpretation of antitrust law — that it’s there to enforce creative destruction on industries. He suggests that it was the Clinton DOJ’s pursuit of Microsoft that forced them to pull back and allow Google to rise in the first place, and posits an untestable counterfactual hypothetical that if that hadn’t been the case, we’d all be using Bing now. But if we’re going to play that game, perhaps without the paranoia at Microsoft engendered by DOJ harassment we’d have a Bing that was actually better than Google. We can’t know.

What we do know is that enforcing creative destruction has not been an object of antitrust law absent demonstrable harm to the consumer, at least in the modern era of antitrust. We should also note that despite large market shares in one area or another, the Big Tech firms are fiercely competitive with each other in other areas. Apple pioneered voice assistance, but Amazon’s technology got a huge boost with the release of the Echo, and Google is making inroads with its in-home devices, while Microsoft’s Cortana sits on a lot of our computers. Even in the shopping area, Amazon now gets half of all shopping queries (something the EU conveniently left out of its analysis), and is making an inroad into online advertising.

This level of fierce competition is one reason why antitrust is so out of place in the technology market. A sleepy monopolist would not be the second biggest spender on R&D in the U.S., as Google is. And the empirical data tells us that large tech platforms can fall very easily without constant improvement. As David Evans of University College London says,

The history of online platform competition also provides empirical refutation of the proposition that data on users protects platform leaders from competition or puts an insurmountable obstacle before entrants. All this points to online platforms facing sleepless nights since any online platform that tries the quiet life of monopoly risks catastrophe.

The article quotes antitrust freebooter Gary Reback as saying “They don’t need dynamite or Pinkertons to club their competitors anymore. They just need algorithms and data.” This might be something of a category error.

One final data point that sheds light on the issue is contained right at the bottom of Duhigg’s article. The founders of Foundem now run a consultancy for companies who blame their woes on Google. The Times article might represent better advertising than they’d ever get from a search engine.

Politics & Policy

Gun Control
A Bad Way to Ban ‘Assault Weapons’

AR-15 rifle at a gun range in Springville, Utah. (Reuters photo: George Frey)

Andrew Ross Sorkin is peddling a batty idea to have credit-card companies act as regulatory proxies to shut down the sale of so-called assault weapons. The proposal is for Visa, Mastercard, et al. to shut out any firearms dealer that sells scary black guns of the sort Sorkin does not like. Ingenious! Sorkin writes: “Assault weapons would be eliminated from virtually every firearms store in America because otherwise the sellers would be cut off from the credit card system.”

I wonder if he’s ever been inside a gun shop.

There isn’t any generally agreed-upon definition of “assault weapon,” but if we broadly mean the sort of firearms that are used in mass shootings — semiautomatic rifles and handguns with detachable magazines — then what Sorkin here is saying is the equivalent of, “You can sell cars, but not cars with automatic transmissions.” In many gun shops, semiautomatic rifles and handguns represent practically the entire inventory. I would be shocked if there were very many ordinary gun shops (as opposed to, say, fine-shotgun brokerages) in which the sale of semiautomatic rifles and handguns represented anything less than 75 percent of the firearms sold or 80 percent of the revenue. The AR-15 is the Toyota Camry of the firearm world.

In fact, the world of firearms outside of semiautomatic handguns and rifles is pretty small: There are a few revolver enthusiasts left in the world, and many big-game hunters still prefer bolt-action rifles. And fancy bird-hunters still prefer their side-by-side shotguns. But the vast majority of firearms for sale and in use — including by hunters and target shooters — are semiautomatic. All revolvers and shotguns combined (including semiautomatic shotguns) account for a very small share of firearms sales.

If Sorkin knows this, then what he is really doing is disingenuously proposing a ban on most firearms through back-door means. If Sorkin does not know this . . . why the hell is he writing about firearms in the New York Times?

If the credit-card companies cut out firearms dealers unless they agree to abandon 80 percent or more of their business, the more likely outcome is that Bob’s Guns starts taking checks or Bitcoin.

Science & Tech

Do Happier Cows Come from Feedlots?

(Regis Duvignau/Reuters)

A while ago, I fell prey to the cult of grass-fed beef. I’m not sure what it was that sold me. Was it all the talk of omega-3 fatty acids, or the constant drumbeat of natural-food propaganda I get from every corner? My guess is that as a resident of Park Slope, I absorbed, despite my best efforts, yet another bourgeois bohemian cliché. It’s easy to conflate what is natural with what is good, and that is especially true when it comes to food. Free-range farms, on which a young cow might roam idyllic pastures munching only the finest grasses, have become gold standard for carnivores with a conscience.

But an article by Jenny Splitter in the most recent issue of the journal of the Breakthrough Institute has convinced me that if we really care about making the world a better place, we ought to embrace the feedlot.* Even leaving aside the wide variation in free-range farms, it isn’t necessarily true that cattle prefer the “constant exposure and the ever-present need to forage for food,” not to mention the “vulnerability to predation,” which has increased as “predators like bears, wolves, and mountain lines are reintroduced, particularly in the American West.”

Feedlots, for all their problems, provide security and nutrition, and they are likelier to have the money to pay for consistent veterinary care. They also produce about 90 percent of American beef, and will likely continue to provide the vast majority for the foreseeable future. That’s why, Splitter argues, it is important to work on getting feedlots right rather than demonizing them. And because of their scale, that will be easier to do than trying to fix thousands of smaller farms. In some ways, doing so is just “an engineering problem: one that science and technology, and the production systems that are best positioned to deploy them, can help solve.”

I’ll admit that I was a bit surprised by Splitter’s portrait of modern feedlots. She changed my mind about the subject, and perhaps she’ll change yours too. More broadly, I’ve come to believe that we need to be much more open to food innovation. As middle-class populations in East Asia and South Asia continue to grow, so too will consumption expectations. Meat consumption is rising rapidly, and short of mass adoption of in vitro meat (which is still probably decades away) or meat substitutes, we’re going to have to make use of the most productive agricultural systems available to us. And for now, that means relying on, and refining, feedlots.

Note: I am member of the board of the Breakthrough Institute.

Politics & Policy

Recommended Reading

Barack Obama sits with students in a class at Powell Elementary School in Washington. (Jonathan Ernst/Reuters)

Gail Heriot and Alison Somin have written an important article that will appear in the Texas Journal of Law and Politics, “The Department of Education’s Obama-Era Initiative on Racial Disparities in School Discipline:  Wrong for Students and Teachers, and Wrong on the Law .” It focuses in particular on a “Dear Colleague” letter that was sent by the Obama administration in 2014 to school officials across the country, warning that that the Department of Education would be taking an aggressive “disparate impact” approach whenever student discipline policies led to statistical disproportions on the basis of race and ethnicity.

I’ve written about this before on The Corner, and indeed from the day it was sent to the present, the letter has drawn much fire from conservatives who would like to see it withdrawn, including a paper for the Federalist Society’s Regulatory Transparency Project.

The Heriot-Somin article is a invaluable addition to the critique. As its title suggests, it criticizes the letter on both policy and legal grounds. Thus, as a policy matter, the article points out that the letter inevitably discourages schools from disciplining some students who should be disciplined. This does misbehaving students no favors in the long run, and in the short run it guarantees that there will be more classroom disruption, which is a bad thing for well-behaved students who want to learn and the teachers who would like to teach them. These two sets of victims will face not only educational harm but frequently physical endangerment as well.

And the “Dear Colleague” letter encourages schools to discipline students with an eye on race — precisely what the civil rights laws were designed to prohibit. The article explains why this is both bad policy and legally problematic, beginning with the fact that racial quotas are illegal in any context and that the statute relied upon by the Education Department — Title VI of the 1964 Civil Rights Act — has been held by the Supreme Court to ban only disparate treatment and not disparate impact. The Court has indeed made pointed reference to “how strange” it is that a Title VI regulation would take the disparate-impact approach, banning something that the statute itself permits.   (For those interested, the cite is Alexander v. Sandoval, 532 U.S. 275, 286 n.6 (2001).)

It should be noted that the Heriot-Somin article is important not only in criticizing the disparate-impact approach in the specific area of school discipline. Much of what it says about the problems of using Title VI as the basis for agency disparate-impact policies will apply as well in the other areas where Title VI has been abused this way, and those areas are legion: not just school discipline but student admissions, and not just education but law enforcement and environmental policy, and in the requirement that federal agencies and federally funded programs use foreign languages.

Finally, the general problems with the disparate-impact approach need to be recognized and addressed — by all three branches of the federal government — not only with respect to Title VI, but for other statutes and regulatory programs; this includes, for example, employment, voting, housing, and credit. Here’s hoping that this article will encourage that scrutiny.

Politics & Policy

The Education Of Mick Mulvaney

OMB director Mick Mulvaney speaks to reporters at the CFPB, November 2017. (Reuters photo: Joshua Roberts)

I am incredibly disappointed to see my hopes about budget director Mick Mulvaney go up in flames. See, I thought that as a budget director, he would be more like David Stockman than many of the successors we have have since he left his job after serving in the Reagan White House. In fact, when Mulvaney was named as the head of Office of Management and Budget, I wrote:

Yet there is some reason for optimism, as President-elect Donald Trump has just nominated a lawmaker who seems to want to pick up the work just where Stockman left it 30 years ago at the Office of Management and Budget. That guy is Rep. Mick Mulvaney, a South Carolina Republican and a founding member of the House Freedom Caucus.

Like Stockman, Mulvaney is an outspoken fiscal hawk who isn’t afraid to fight against the establishment and for spending cuts.

While Mulvaney claimed “I will always be a budget hawk,” this has become harder to believe. Ignoring the added $300 billion over two years agreed upon over the weekend by Republicans and Democrats, his new budget completely gives up on the pretense to balance the budget in ten years (in contrast to last year’s budget)  and it will run a deficit close to $1 trillion for each of the next three fiscal years.

I guess there wasn’t enough fairy dust to make this budget look better than last year’s magical budget. Indeed, the FY2019 deficit lines exist in spite of the unrealistic assumptions about high growth rates sustained over ten years, optimistic receipts, or dead on arrival savings. Incidentally, unrealistic assumptions aren’t not unique to this budget, this president, and this budget director. What’s disappointing about it is that Mulvaney seems to embrace the fiscal direction our country is heading toward.

The memory of him going to Congress to ask Freedom Caucus members not to behave as he used to when he himself was in Congress is forever seared in my mind.

And the truth is I am struggling to understand how he, of all people, proposed and defends the paternalist and dare I say, bigger than big government idea, to deliver nonperishable food directly to America’s poor instead of food stamps all neatly wrapped in the infamous “buy Americanprovision. Maybe a job in the White House brings out the Michelle Obama in some of us. One thing is sure: an outstanding amount of wishful thinking or ignorance about previous failures to put in place those exact types of command and control policies … Matt Mitchell and Robert Graboyes of Mercatus remind us of a few of them:

Michelle Obama’s school lunch directives aroused intense opposition from dissatisfied students coast-to-coast. But a much closer parallel is the federal government’s role in distributing food on Native American reservations.

Beginning with forced relocations in the mid-19th century, the federal government aimed to provide Native Americans living on reservations with adequate nutrition, but at low cost. The result was a diet heavy in canned foods, flour, sugar, and lard in place of traditional foods. Parallel programs persist even today, likely contributing to the obesity and diabetes epidemics ravaging these areas.

This program echoes the much maligned and nutritionally dubious “government cheese” distribution programs of earlier decades.

What I am most disappointed by is what looks like a total abdication of what made him such an unusual Republican representative. As I wrote:

Better yet, like Stockman, he isn’t afraid to go after the Republican sacred cow—defense spending. That point is significant in a party whose lawmakers tend to favor military budget increases and oppose reductions no matter how unrealistic the proposals are.

Mulvaney has also shown that he isn’t scared to work with Democrats when he has to. For instance, he has a history of teaming up with Rep. Chris Van Hollen, D-Md., to go after the beloved Republican practice of keeping war funding (money in the Overseas Contingency Operations account, or OCO) separate from the regular defense budget. As he has pointed out repeatedly, this is nothing more than a budget gimmick to avoid spending caps on military spending.

Having fewer budget constraints means there’s a readily available slush fund for Congress. As the nonpartisan nonprofit Taxpayers for Common Sense documented, “stuffing OCO full of the projects in Bahrain, Djibouti, Italy, Oman, Poland and Niger as a way to avoid those caps demonstrates a blatant disregard for fiscal responsibility and an unwillingness to make the hard choices necessary to prioritize investments.” No kidding

Oops. I was wrong, wrong, wrong. OCO are alive and well under Mulvaney’s watch. Taxpayers for Common Sense has this handy chart about the $69 billion OCO gimmicks:

As long as he was in the House of Representatives, Mulvaney was a sound voice in recognizing that not all increases in defense spending leads to higher security, that misallocation is an important problem in the defense budget, and that throwing more money at DoD could make things even worse (in part by preventing needed reforms). He was pretty loud about the abuse of the OCO budget line and its lack of transparency and accountability. He also defended the budget caps and understood how defense hawks were often willing to grow non-defense spending to break the defense budget caps.

I also saw Mulvaney as an ally in the fight against cronyism. Again, here is what I wrote a year and half ago:

Mulvaney has also proved to be a great ally in the fight against cronyism. In fact, he fought vigorously against the Export-Import Bank of the United States, an outfit that extends taxpayer-backed loans to mostly large or state-owned foreign companies to buy goods from large, politically well-connected American companies.

He deserves particular credit because the bank’s main beneficiary, Boeing, actually operates in his district. Stockman, too, was a fervent advocate of shutting down the Ex-Im Bank. He wrote: “Export subsidies are a mercantilist illusion. … I had long insisted, to any liberal who would listen, that the supply-side revolution would be different from the corrupted opportunism of the organized business groups; that it would go after weak claims like Boeing’s, not just weak clients such as food stamp recipients.” It seems to me that’s what Mulvaney has been trying to do.

As my colleague Tad DeHaven documents here, Ex-Im and many other swampy programs come away unscathed under this budget. He writes:

The budget proposal does almost nothing to “drain the swamp,” and in many ways will sustain or expand it. The inconsistencies are striking. Language that the administration uses to justify eliminating a few programs that dispense special-interest privilege could apply to the many programs that it has decided to keep around.

What happened? Putting my public choice hat on, I would say that lawmakers usually trample their principles once in office if they believe this is the way to please their constituents and get reelected.  My guess is that, now that he is in the White House, he wants to please the only constituent that matters: the president.

Whether that’s what happening or not, all I know is that there is no reason for deficits to be going up right now other than the refusal by Republicans in power to cut spending. They didn’t cut spending when they cut taxes, they didn’t cut spending when they agreed to jack up the defense budget, and they refuse to cut spending as the economy is growing. It’s not as if they are considering tackling entitlement spending (and there is always a good reason in their mind to jack up discretionary spending.)

Mulvaney is at least honest about the fact that the probability to deliver on the president’s campaign promise to get rid of the debt in eight years is zero and that the fault lays on the policies implemented in the last year. He said this during a budget hearing:

“I don’t think it’s possible to, at this point, given what has happened in the last 12 months, especially to pay off the debt in eight years,” Mulvaney replied.

There is always been a large number of fiscally careless members, defense hawks and lover of pork-barrel politicians in the Republican party. I was hoping that Mick Mulvaney could stop them from growing the size of government. Apparently, I was wrong.

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