Policy Institutes

At Saturday’s Halifax International Security Forum, Eric Schmidt announced that Google will alter its search algorithm to “de-rank” results from Russia Today.

Why did Google do this? Perhaps they were concerned about Russia meddling in American elections or they thought their customers wished to see less of Russia Today. It matters not. Generally Google has broad power to police its platform. We might not like the decision, but it is not ours to make.

There is a second possibility. Government officials may have threatened Google to bring about this “de-ranking” of Russia Today. If so, the First Amendment poses questions for us. We need answer such questions, however, only if government officials did in fact threaten Google.

Consider the following exchange between Sen. Feinstein and Google General Counsel Kent Walker from the Senate Intelligence Committee hearings on Russian influence in the 2016 election:

Feinstein: Why didn’t Google take any action regarding RT after the intelligence community assessment came out in January of 2017.

Walker: … with regard to RT, we recognize the concerns that have been expressed about RT and concerns about its slanted coverage, this is of course a question that goes beyond the internet, RT is covered, its channel is on major cable television stations, on satellite television stations, its advertising appears in newspapers, magazines, airports, it’s run in hotels in pretty much every city in the United States. We have carefully reviewed the content of RT to see that it complies with the policies that we have against hate speech, incitement to violence, etc., so far we have not found violations, but we continue to look, beyond that, we think that the key to this area is transparency, that Americans should have access to information from a wide variety of perspectives, but they should know what they’re getting, so we already on Google provide information about the government funded nature of RT, we’re looking on ways to expand that to YouTube and potentially other platforms.

Feinstein: Well, I’m really not satisfied with that, that’s sort of been the trend of the testimony all along, I think we’re in a different day now, we’re at the beginning of what could be cyberwar, and you all, as a policy matter, have to really take a look at that and what role you play.

Sen. Feinstein rather boldly asked Google to take action to hamper RT’s ability to communicate its views to American audiences. This demand came after an opening speech in which she proclaimed that internet platforms must “do something about it, or we will.” It is difficult to interpret this as anything but a threat. If Google, and others, failed to quash RT using tools constitutionally prohibited to Congress, Congress would yoke them with onerous regulation. Google has now responded with the de-ranking. Of course, we lack a document where Mr. Schmidt says something like “to avoid unspecified harms by Congress, Google must change our search function.” But the context and timing of the hearings and the de-ranking make a persuasive case for coercion.

Congress is wrong in three ways. First, freedom of speech. RT America, despite being recently required to register itself as a foreign agent, enjoys First Amendment speech rights in the same way that other foreign, state-funded television channels like Al Jazeera and BBC America do. Congress does not have the power to prevent them from running advertisements, or publishing news stories on their website.

Second, editorial control. Courts have ruled that the First Amendment protects a search engine’s ordering of results. A search algorithm may be “meta” editorial control, but it nonetheless is and should be protected from government threats. By analogy, consider The Wall Street Journal. Should we allow public officials to “persuade” editors to move a story from the front page to page 11?

Third, the interests of listeners/readers. Courts have permitted the government to license broadcasters and to impose fairness obligations as a condition for a license. Such impositions are said to be in the interest of listeners or viewers given the scarcity of the broadcast spectrum. But opportunities to speak on the Internet are not scarce or limited by nature. In any case, Google users do not need public officials to decide what they read about and when. That idea runs directly counter to freedom of speech.   

In responding favorably to this bullying cry for censorship, Google appears to have politicized its platform in order to forestall political punishment. This is strikingly similar to the EU’s use of threatened regulation to force social media firms to adopt its definitions of hate speech, applying them globally through terms-of-service changes. Both episodes represent end-runs around the First Amendment, in which private firms are pushed to enforce policies that governments would be otherwise prohibited from instantiating. The recent Google example, however, is far more troubling, as it is the American government, supposedly fully bound by the First Amendment, which has resorted to bald threats in order to circumvent the rights-protections guaranteed to its citizens.

HT: Will Duffield for research assistance and Matthew Feeney the Wall Street Journal example.

The rising level of deaths from opioid overdoses is getting a lot of attention, including from a Nobel laureate economist and the White House. In the rush to find a solution to the problem of opioids, I hope we don’t forget the problem that opioids were intended to cure: chronic severe pain. Living with that kind of pain is awful, and it’s wonderful that science has found ways to help people in pain.

But that’s not the way President Trump’s surgeon general sees it. In an NPR interview this week, Dr. Jerome Adams had this to say:

NPR’s Elise Hu: Much of this crisis started in doctors’ offices. We’ve heard statistics like doctors in the United States prescribe four times the number of pills per person that doctors in the United Kingdom do, for example. What do you think is encouraging doctors to prescribe at those levels?

Dr. Adams: Well, I can tell you, as one of those doctors, that many of my colleagues tell me they feel pressured to prescribe. You have patients who expect an opioid is the only or main way to treat their pain. But I would take issue with one thing you said—I don’t think it started in the doctors’ offices. I think it starts before that. I think that it starts with this expectation that everyone’s going to have no pain, with the idea that a pill can solve everything. And we need to help folks understand there’s a real danger to feeling like we can medicate our way out of any and all problems. 

(Note: that statement appears at about 4:25 in the audio, but not in the related transcript.)

Of course no one should feel that we can “medicate our way out of any and all problems.” But we can relieve some pain. And I am disappointed to hear the surgeon general say that we should get over our attitude that doctors can help to alleviate our pain.

In a 2005 Cato study, Ronald T. Libby argued that opioid therapies for pain had proved successful, but because of criticism and law enforcement efforts “many physicians and pain specialists have shied away from opioid treatment, causing millions of Americans to suffer from chronic pain even as therapies were available to treat it.”

In a recent article, surgeon and Cato senior fellow Jeffrey Singer argues that crackdowns on opioid prescription and the resulting decline in prescriptions are driving more patients to the black market, while “opioid abuse and overdose rates have declined by 25 percent in states where marijuana has been made legally available.”

There are going to be plenty of arguments about the best policy to deal with opioid abuse. But let’s start with the premise that the alleviation of pain is a great thing.

Imagine a friend approaches you with an opportunity for what he believes will be easy money: a guy he met knows where some local drug dealers store their merchandise—a great big pile of it, fifty kilos, lightly guarded. Your friend’s guy thinks it could be grabbed relatively easily and flipped for a hefty profit. The whole thing sounds sketchy to you, but cash is tight this month and stealing from drug dealers does not feel like the most morally objectionable of crimes. Perhaps not the most sophisticated sort (and having watched a bit too much TV), you soon find yourself in a van on your way to the score.

Except there was no score—it never existed—and your friend’s “guy” is actually a police officer, whose colleagues arrive and arrest you and charge you with conspiracy to traffic in a controlled substance (the mythical fifty kilos) while carrying a firearm (your friend brought one along). Never mind that the drugs you are being punished for trafficking are make-believe—as is the place from which you were to steal them—you now face fifteen years in prison for indulging a yarn spun by the government.

These are, with some simplification, the facts of United States v. Conley, handed down last week by the United States Court of Appeals for the Seventh Circuit. The Seventh Circuit felt itself bound to uphold the conviction, but not without first referring to the practice as “tawdry” and “question[ing] the wisdom and purpose of expending the level of law enforcement resources and judicial time and effort in this prosecution.” The Court of Appeals quoted from the trial judge’s opinion in the same case, who declared Conley’s fifteen-year sentence for an imaginary crime “devoid of true fairness … serv[ing] no real purpose other than to destroy any vestiges of respect in our legal system and law enforcement that this defendant and his community may have had.” The trial judge was required however to impose it due to mandatory minimum sentences set by Congress.

The Seventh Circuit is not the first to encounter this practice of prosecuting hypothetical criminals for crimes of the government’s concoction, nor the first to express its displeasure. The opinion itself cites eight other opinions from around the country that take a dim view of this gimmick. One judge on the Sixth Circuit declared “the concept of these ‘stash house sting’ operations [is] at odds with the pride we take in presenting American criminal justice as a system that treats defendants fairly and equally under the law.” Another, on the Third Circuit, argued “the potential for abuse and mischief [here] is endemic.” Yet, in case after case, courts give the thumbs up.

Perhaps the most disturbing aspect of this ploy is that it empowers the government to define the crime it is inventing. Since drug sentences are tied to the weight of the drugs at issue, the officers can inflate the sentence by inflating the imaginary bag of drugs. Since they made up a stash house with fifty kilos, Conley was charged with fifty kilos, if they’d said two kilos, or three hundred, or one million, the sentence would have been different—criminal justice as magical realism.

The average reader may well wonder why this could be considered anything other than entrapment. After all, if the government told you to commit a crime it should not have the gall to demand you be punished for it—a sort of inverse of the traditional definition of chutzpah, where the man who killed his parents asks the court to take mercy on him as an orphan. But the entrapment defense is very narrow, creating results that would be farcical if they were not so tragic. Take Conley: because the government agent didn’t go to Conley directly but to his eventual associates who in turn recruited Conley, the Seventh Circuit held Conley couldn’t claim entrapment. The government may therefore concoct a conspiracy and induce one party to carry it out, who then recruits third parties to help him. After all are arrested, the primary party, who has a potential claim of entrapment, is given a reduced sentence for testifying (as happened in this case), and they throw the book at whoever else was ensnared.

And to what end? Advocates of more aggressive criminal law enforcement warn we are experiencing a new crime wave; the claim seems dubious, but even if it is true, the mind boggles as to how it improves matters to let the government make up nonexistent crimes to punish. Surely those resources could be better focused toward those pursuing violent ends on their own initiative? Given the bulging seams of our current prison capacity, what good does it do to shackle unsuspecting rubes with decades-long sentences of the government’s manufacture? Yet the mischief will continue until courts stop simply gritting their teeth and start showing some judicial grit.

The current tax reform debate has focused on economic growth and the value of cuts to different groups of taxpayers. Tax simplification has received less attention, and Republican bills would only make modest gains in that regard.

Yet a major tax code simplification would not only save time on administration, it would increase financial privacy and deter cyberattacks on the Internal Revenue Service. A new study by Michael Hatfield of the University of Washington looks at the risks posed by the IRS’s vast data collection on 290 million Americans. The more micromanagement there is in the tax code, the more information the IRS collects on our finances, lifestyles, and activities.

Here are some of Hatfield’s points:

  • Many federal agencies have been hit with damaging cyberattacks in recent years, including the Office of Personnel Management, the Justice Department, the Pentagon, and the White House.
  • The IRS has also suffered attacks. In 2015, “the IRS launched the Get Transcript service, enabling taxpayers to view this information (known as a “transcript”) online. Unfortunately, the security of the service was so low that, within the first few months of the service, hackers stole personal information from about 724,000 taxpayer accounts.”
  • Individual hackers, groups, and hostile governments regularly target U.S. companies and government agencies. The Chinese government may be building a database of personal information on all Americans. The IRS is an ideal target for hackers seeking to steal personal information and money, and for people simply wanting to wreak havoc by destroying data.
  • The IRS has a history of expensive technology failures. The agency has struggled to update its systems with new technologies and security protections. The IRS has a hard time competing to attract top computer experts, and so it may fall further behind.
  • The IRS collects information on our income sources, family structure, health information, housing data, small business details, educational situation, retirement finances, and many other things. During investigations and audits, the agency can demand and collect just about any information it wants to judge the accuracy of tax return data.
  • Political pressures work against security and personal privacy. Politicians encourage the IRS to improve “customer service,” which encourages more online interaction. And politicians push to close the “tax gap” of taxes owed but not collected, which prompts the agency to demand ever more data from individuals and businesses.

Hatfield notes that ensuring good cybersecurity is a difficult task for any agency these days, so damaging attacks against the IRS seem likely. Ironically, massive IRS attacks may have been avoided thus far due to the antiquated nature of the IRS’s computer systems.

We need better IRS management, but Hatfield’s main point is that Congress should simplify the tax code to reduce the amount of information collected from Americans. Another problem he points to is the overwithholding of income taxes, which necessitates more than 110 million refunds each year. Hatfield says, “making the IRS less like an ATM would reduce its appeal to financial thieves.” One fix, in my view, would be to repeal the earned income tax credit, which pays $60 billion in subsidies to more than 25 million people a year. The huge EITC error rate illustrates the IRS’s inability to monitor its vast transactions.

Hatfield concludes:

Congress has designed a tax system that requires the IRS to collect information on hundreds of millions of individuals and to routinely issue hundreds of billions in refunds. If the tax law did not require so much information on so many, nor involve refunds to so many, the IRS would be a less appealing and more defensible cyberattack target. In short, if the tax law were simpler in specific ways, the information technology needs at the IRS would be simpler, and adequate cybersecurity for it would be easier.

The tax law need not demand so much information on so many individuals, nor must its administration turn on a system that generates refunds as a rule rather than an exception. Within the limits of the political and financial realities that determine legislation, there is ample flexibility for Congress to reform tax law so that it demands less of both taxpayers and tax administrators and, thereby, provides more information security.

A broader conclusion from Hatfield’s study is that policymakers should put much more emphasis on personal privacy when considering all federal programs. The government has a poor record of guarding its databases, so policymakers should be very skeptical of federal activities that require the gathering of personal data on Americans.

Republicans are letting themselves get cornered by slanted tables appearing to show the rich gaining the most from tax reform. The official distribution tables are not presenting GOP tax changes in a fair manner, as I discuss here.

But Fox News also? On Sunday, Fox displayed this image, and host Eric Shawn asked Rep. Jim Renacci, “…if you make more than a million, if you’re a richie, you save $21,000 … Do you think that’s fair and appropriate?” Renacci did not do a good job of pushing back.

Presenting dollar cuts with no context is meaningless. The proper context is how much people currently pay in the taxes being cut. (The Fox figures are way off, by the way).

The table below shows Tax Policy Center estimates of average cuts for the Senate bill in 2019, and my estimates of the average amount paid in individual income, corporate income, and estate taxes under current law. The “richies” might get the largest dollar cuts, but they will pay an enormous pile of taxes in 2019 with or without the GOP reforms.

The $30-$40K group won’t pay any federal income taxes under current law, on average. So the “cut” that group receives would stem from more people not paying anything and from an increase in refundable credits, which are spending subsidies.

The middle groups would receive far larger percentage tax cuts than the top group.

Figures in the table are based on TPC data in T17-0268 detail table and T17-0043 and my estimates.

Republicans cannot tell Fox News what to report, of course, but they can require that its own Joint Committee on Taxation show more detail in its tables and to present tax changes in a fair context, which it is not doing. In turn, that may encourage news outlets to present the GOP plan in a more accurate and neutral light.

“A man’s home is his castle”—this is not just an aphorism, but a longstanding legal principle. From Biblical times through to the English common law, the home was recognized as a place of refuge in which the owner is protected against uninvited private parties and unjustified government intrusion. That legal shield against arbitrary invasions of the home was embodied in the Fourth Amendment, which resulted in large measure from Americans’ reaction to the British authorities’ use of general warrants to search colonists’ homes without individualized suspicion. As a result of this history, “when it comes to the Fourth Amendment, the home is first among equals.” Florida v. Jardines, 569 U.S. 1, 6 (2013). 

In Collins v. Virginia, the issue before the Supreme Court is whether a police officer, uninvited and without a warrant, may enter private property, approach a home, and search a vehicle parked just a few feet from the house. Cato has filed a brief arguing that permitting such a practice would be squarely inconsistent with the Fourth Amendment’s special solicitude for the privacy of the home. At common law, and under the Fourth Amendment, the protection accorded to the home extends to its surrounding grounds and out-buildings—the so-called “curtilage.” Because this area is closely tied to the home, both physically and psychologically, the curtilage is regarded as part of the home itself for Fourth Amendment purposes. This protection is the foremost example of the Fourth Amendment’s general defense against unreasonable government intrusion into private property. Indeed, the text of the Amendment protects “[t]he right of the people to be secure,” not just in their “persons,” but also in their “houses, papers, and effects.”

The general justification for allowing warrantless searches of vehicles is the reduced expectation of privacy in vehicles as they travel on public roads. But there is no such reduced expectation when a vehicle is parked at home. To the contrary, expectations of privacy are at their zenith at the home and its surroundings. And to the extent that the warrantless search of automobiles is justified by their mobility, a vehicle parked at home is immobile; if it leaves the home and curtilage it would become subject to search. Moreover, the existing doctrine on “exigent circumstances” assures that the warrant requirement will not undermine critical law enforcement needs. For example, the need to prevent physical harm or the imminent destruction of evidence would allow officers to intrude on the curtilage without a warrant.  But in the absence of those circumstances, the Fourth Amendment’s warrant requirement protects Americans’ most private refuge against the abusive use of government power.

As the 5th round of talks on the renegotiation of the North American Free Trade Agreement (NAFTA) wrap up, the United States, Canada and Mexico continue to work out the technical details of their various proposals. Being the week of Thanksgiving, and because I can’t stop thinking about all the great food I’m going to eat on Thursday, I figured it’s a perfect time to reflect on the benefits of NAFTA for Americans who buy a variety of agricultural products.

When you look at products imported for consumption, that is, products that receive no additional processing, imports from Canada and Mexico have grown quite a bit since NAFTA was finalized in 1994. Imports are important because they allow consumers greater choice (like fruits and vegetables in winter!), as well as lowering prices so that everyone gets to enjoy some Thanksgiving cheer.

The top consumer oriented imports from Mexico in 2016 were fresh vegetables ($5.6 billion), other fresh fruit ($4.9 billion), and wine and beer ($3.1 billion). From Canada, the top imports were snack foods ($4 billion), other consumer oriented products ($2.6 billion), red meats ($2.2 billion), and processed fruits and vegetables ($1.4 billion). In addition, in 2016, the U.S. imported $25.8 million in live turkeys in 2016, with 99.9% coming from Canada (the rest are from France).  

The United States exports a lot to Canada and Mexico as well, which rank 2nd and 3rd for U.S. agricultural exports (China is the top export partner). U.S. agricultural exports to its NAFTA partners grew from $8.7 billion in 1992 to $38.1 billion in 2016, while imports grew from $6.5 billion to $44.5 billion. It is no wonder, therefore, that U.S. farmers and others in the agricultural industry greatly support NAFTA, and don’t want to see it scrapped.

A 2015 report by the USDA on the 20th anniversary of NAFTA, it concluded:

The 20th anniversary of NAFTA provides testimony to the lasting value of agricultural trade liberalization to the North American economy. By removing thousands of tariffs, quotas, import licensing requirements, and other policy measures that formerly distorted agricultural trade and FDI among the United States, Canada, and Mexico, NAFTA facilitated a large increase in cross-border economic activity in the agricultural and processed food sectors.

So this Thanksgiving, I’m thankful for NAFTA, and I hope the United States, Canada and Mexico do what they can to prevent any rollbacks to the liberalization we have achieved, and work to modernize it so that we continue to benefit from this great deal.

On Friday, the Treasury Department released a report on Financial Stability Oversight Council (FSOC) designations. This report could have addressed the problem underlying FSOC’s designation authority: the fact that it makes explicit which financial institutions are “too big to fail,” paving the way for more bailouts of the kind we saw in 2008. Sadly, the report flew wide of the mark, focusing on the minutiae of the designation process and all but ignoring the glaring bailout problem.

A little background. FSOC is an entity created in 2010 by Dodd-Frank, the sweeping financial reform legislation passed in the wake of the 2008 crisis. It is comprised of the heads of various financial regulatory agencies, and is chaired by the Secretary of the Treasury. One of its purposes is to facilitate communication among regulators, helping to give them a complete picture of the financial sector beyond their own territories.

FSOC’s other purpose — and arguably its primary one — is to identify systemic risk and designate certain entities as “systemically important financial institutions” (SIFIs). These SIFIs are then subject to heightened oversight by the Federal Reserve. The idea is that increased oversight will reduce the chances of these companies running into trouble, and thereby obviate the need for bailouts.

But the government has not shown itself to be adept at identifying systemic risk. Not in 2008. Not in any of the last eight financial crises, in fact. Even if the coordination among regulators facilitated by FSOC improves the government’s ability to see trouble brewing, it will never have perfect foresight.

When one of these SIFIs stumbles — as one eventually will given a long enough timeline — how will the government avoid a bailout? In the past, large firms understood with a wink and a nod that Uncle Sam was backstopping their bets. But there was at least some ambiguity. And in the case of Lehman Brothers, the government did not ultimately provide a safe landing. Could the government have let Lehman fail if it had already branded it “systemically important”? I tend to think not.

Back to the new report. The report does a good job of identifying the problems that FSOC and SIFI designation present:

Designation by the Council…should not imply that the government will rescue the designated firm in the event of failure. A market expectation of such a rescue could cause inefficient investment decisions and increased risk-taking. Nor should government discipline be substituted for the market discipline of investors, counterparties, and clients as a result of the designation process.

I couldn’t have said it better myself. Later, the report states that “a company subject to a Council designation should not receive a financial advantage from any perception that the government may rescue the company in the event of its failure. Such a perception could give the company an unfair competitive advantage in funding markets.” Again, an excellent point.

Unfortunately, while the report accurately identifies and describes some of the chief problems with the SIFI designation, it completely fails to identify any corresponding solutions.

As to market advantage, the report does note off-hand that the market may adjust once the regulatory effects become more clear. But this explanation makes little sense. Yes, the market will incorporate the advantage by pricing in the government backstop a company is likely to enjoy as a SIFI.  That doesn’t mean the effect goes away. Instead, the company’s position in the market will reflect the costs and benefits of being designated as systemically important.

As for the SIFI designation potentially forcing the government’s hand if a bailout is needed, the report simply outlines the problem and then never mentions it again. The report does recommend using an activities-based approach to regulation, although it is not clear whether this is intended to address the specific problem of creating moral hazard by designating certain firms as SIFIs. In the past, while FSOC has been troublingly opaque about its designation process, it does seem that firm size has been the most salient concern. The report notes that focusing on activities may reduce the need to designate firms, principally because firms will likely avoid activities that might trigger designation. And yet, the report provides little detail about how FSOC will evaluate activities to determine their systemic risk or even what “risk” in this context means. Given the government’s poor track record in predicting crises, it would be helpful if the report had explained how FSOC’s analysis will be different going forward. Finally, the report suggests using designations sparingly.  But as long as any firm is designated as a SIFI, the specter of government bailouts remains.

It is worth noting that the report is written as a memorandum to President Trump, and comes in response to a request he sent to the Treasury Department earlier in the year. In that request, the president asks Treasury principally about the process for designating SIFIs — a process that has left much to be desired.

But the request also asks Treasury to assess whether FSOC and its SIFI designations align with the objectives laid out in the president’s February executive order establishing principles for financial regulation. Among those objectives is to “prevent taxpayer funded bailouts.” Addressing whether SIFI designation itself might lead to more bailouts was squarely within the four corners of the president’s request. And Treasury completely ignored it.

The report makes some worthwhile suggestions about the designation process. For example, it recommends that FSOC notify companies earlier in the process, so that they can take measures to address FSOC’s concerns and avoid SIFI designation entirely. Of course, to assume that addressing these issues is a good thing is to assume that FSOC has correctly identified problems in the first place. And that may be a big assumption.

The report also recommends that FSOC “should only designate a company if the expected benefits to financial stability from Federal Reserve supervision and enhanced prudential standards outweigh the costs that designation would impose.” This is a good recommendation but I’m fairly disheartened that it’s one that must be made. Should regulators need to be told that they should only act to make things better, not worse?

Then there’s the report’s recommendation that, before making a SIFI designation, FSOC should consider whether a company is actually likely to face financial trouble: “Material financial distress at a nonbank financial company does not pose a threat to U.S. financial stability if the company will not experience material financial distress.” Indeed: things that do not happen rarely cause distress. Again, I’m disappointed this must be explicitly stated.

It might be less distressing if the report had simply failed to mention the risk that SIFI designation could give rise to more bailouts. That would leave open the possibility that alerting Treasury staff to this danger would spur some action. Instead, the report’s authors, aware of the risk and explicitly stating the need to address it, offer no explanation of how that might be accomplished.

The bottom line is that there is probably no way for the government to designate firms as “systemically important” without simultaneously creating the guarantee of bailouts later on, should the need arise. As has been argued in several other places, the SIFI designation process not only fails in Dodd-Frank’s stated mission of ending “too big to fail,” but explicitly enshrines it in law.

The FSOC itself need not be disbanded, but if we’re serious about eliminating taxpayer-funded bailouts — and I hope we are — its power to name SIFIs should end.

[Cross-posted from Alt-M.org]

The United States is helping one of the most vicious authoritarian regimes in the world bomb and blockade one of the poorest and most defenseless countries in the world. Painful as it may be for Americans to hear, war crimes are being committed with America’s support.

Saudi Arabia launched its war on Yemen in 2015 on flimsy national security grounds and almost immediately garnered criticism from the United Nations and human rights groups for indiscriminate bombings, and in some cases deliberate targeting, of civilian areas. Saudi bombs have landed on residential homes, marketplaces, refugee camps, schools, hospitals, and at least one funeral. In spite of these allegations and clear evidence of extreme human suffering, the United States has supported the Saudi campaign from the beginning by providing refueling assistance, logistical support, intelligence cooperation, and diplomatic cover (not to mention massive arms sales).

To date, conservative estimates put the number of Yemenis killed by Saudi bombs at more than 13,500 (including more than 5,000 confirmed civilians). What has made the situation an order of magnitude worse is Saudi Arabia’s de facto blockade of Yemen’s air, sea, and land ports, preventing the delivery of much needed humanitarian aid. The main sewage plant in Yemen’s capital Sana’a ran out of fuel, couldn’t import more, and hasn’t run for months at a time, helping intensify the spread of disease. More than 900,000 Yemenis are suffering from cholera, a disease that could be treated if the Saudis would permit entry of aid and medical supplies. But, according to the BBC, the Saudis have turned away up to 29 vessels with 300,000 tons of food and 192,000 tons of fuel, plus a UN ship transporting 1,300 tons of health, water, sanitation, hygiene, and nutrition supplies.

About 17 million Yemenis are in urgent need of food; 7 million of those are facing starvation. Roughly 400,000 children under the age of five are suffering from acute malnutrition and, if Yemen doesn’t get relief soon, up to 150,000 of those children will likely die within a few months.

Journalists from CBS News, looking to shine a light on what the United Nations has called a “man-made catastrophe,” were recently denied entry into Yemen by Saudi authorities. Riyadh doesn’t want the world to know what it’s doing. CBS instead found Yemenis willing to film the horror, which aired on 60 Minutes this past weekend. The stomach-churning footage is not easy to watch. David Beasley, who runs the UN’s World Food Program, told 60 Minutes that, “the Saudi-led coalition” – a phrase he apparently used advisedly to include the United States – “are using food as a weapon of war. And it’s disgraceful.”

Let’s be clear: there is no credible strategic justification for US complicity in this abominable cruelty. The Saudis claim the war is necessary to crush the Houthi militants in Yemen, a group that has received backing from Iran. Incidentally, Iranian support for the Houthis was negligible until well into the Saudi air campaign, with Iran boosting support largely in response to Riyadh’s offensive. In any case, the war itself has done more to bolster the position of Al-Qaeda’s affiliate in Yemen than to effectively push back against Iranian influence.

But even if that weren’t the case, nothing can justify this kind of brutal collective punishment and excruciating human suffering inflicted on millions of innocent people. Putting hundreds of thousands of children at risk of starvation is an intolerable crime, and only one among many currently being perpetrated. Shamefully, the issue doesn’t elicit nearly the level of outrage as President Trump’s Twitter feuds and rhetorical attacks on professional athletes. The public indifference is rather shocking.

A few members of Congress have spoken out publicly against the savagery in Yemen. Senator Chris Murphy (D-CT) has repeatedly made the case for restricting U.S. military support for Saudi operations in Yemen, has called on Riyadh to lift the blockade, and has accused the U.S. of complicity in war crimes. Senator Rand Paul (R-KY), too, has forcefully condemned U.S. involvement in Saudi crimes. Rep. Ro Khanna (D-CA), Rep. Walter Jones (R-NC), and Rep. Mark Pocan (D-WI) have joined the chorus. And last week the House passed a non-binding resolution declaring U.S. involvement unauthorized. Unfortunately, the executive branch is insulated from these somewhat meager efforts to check and balance.

As Cato’s foreign policy team has said from the beginning, the United States should immediately halt all support to Saudi Arabia and use its influence to allow Yemen the relief it needs. The manner in which the war is being conducted will cast a long shadow over America’s reputation, and undermines Americans’ claim to uphold human rights. And empowering some of the most violent and extreme elements within Yemen is likely to increase threats to U.S. national security down the road. 

You can learn about how the federal government works from Washington Post obituaries. Many people who have had careers in Washington seem to have focused on lining their pockets rather than serving the public interest. Everyone wants to succeed, of course, but for most Americans that means private-sector jobs that add value to society. Washington, by contrast, provides unique opportunities to make money by harming society and betraying the public trust.

Sunday’s Post had a detailed obit for Bobby Baker, who was a close friend and “protégé” of Lyndon Johnson in the Senate, but who ended up in prison for tax evasion, theft, and fraud.

Here are some excerpts:

Mr. Baker was just 20 at the time and a staffer for the Senate leadership, keeping track of legislation and when it would be coming up for a vote. His vast knowledge of the operations of the Senate and his facility in the art of accommodation—moving pet legislative projects ahead for some senators or helping fulfill the proclivities of others for drink, sex or cash—would make him an invaluable asset to [Lyndon] Johnson.

Using his guile, political skill and finesse in the art of the deal, Mr. Baker amassed a fortune of more than $2 million in his moonlighting activities with holdings in cattle, insurance, vending machines, real estate and gambling operations in the Caribbean. He lived in the Spring Valley section of Washington, close to the far wealthier Johnson. He achieved all of this on an official salary of $19,600 a year.

Years later, he justified his highflying ways in his memoir, which was aptly titled: “Wheeling and Dealing: Confessions of a Capitol Hill Operator.”

“Like my bosses and sponsors in the Senate, I was ambitious and eager to feather my personal nest,” Mr. Baker wrote in the book, a collaboration with author Larry L. King.

“As they presumed their high stations to entitle them to accept gratuities or hospitalities from patrons who had special axes to grind, so did I,” Mr. Baker added. “As they took advantage of privileged information to get in on the ground floor of attractive investments, so did I. As they used their powerful positions to gain loans or credit that otherwise might not have been granted, so did I.”

Mr. Baker’s world of privilege and political connections came crashing down in the fall of 1963….It was discovered that Mr. Baker owned a condominium where high-profile Washington figures were entertained by women who were not their wives.

It was also disclosed that Mr. Baker was the co-founder of the Quorum Club, located in the Carroll Arms, a small hotel on Capitol Hill. It was a place where lawmakers, lobbyists and other interested parties would drink, play cards and dally with young women.

His legal downfall came in 1967, when he was indicted on charges of tax evasion, theft and fraud. Mr. Baker had allegedly been asked by savings and loan industry officials in California to deliver a six-figure sum to Sen. Robert Kerr (D-Okla.), who died in 1963. According to Mr. Baker’s memoir, that money was to have been an inducement to derail a bill that would have been costly to the savings and loan industry. Mr. Baker’s transgression, according to the grand jury, was that he kept nearly $50,000 for himself.

Is Washington more or less corrupt than during the Bobby Baker era? On the one hand, the government is much larger today than during the 1960s, handing out more subsidies to more people and groups. On the other hand, there is more transparency today due to the rise of the Internet and the broadening of media competition. So there are more opportunities for corruption today, but it might be more likely that the worst abusers get caught.

Corruption is one reason why most federal programs do not, on net, serve the public interest, and why we would be better off without them. For the many other reasons, see DownsizingGovernment.org.

By the way, Wiki has a useful list of historical political scandals—everything from the Whiskey Ring and Teapot Dome to Dennis Hastert and Chaka Fattah.

Last month it was reported that land-use regulations were crushing a new entrepreneurial venture in Oregon: goat yoga. If you aren’t already a yoga devotee and familiar with the pastime, goat yoga involves rolling out your yoga mat at a family farm and then letting baby goats jump on your back while in “downward dog” or “plank” position. And before you start to worry, the practice is allegedly good for both baby goats and humans.

Unfortunately, Oregon’s land-use regulations wouldn’t allow the country’s goat yoga pioneer, Ms. Lainey Morse, to practice activities on agricultural land that didn’t promote the “sale of a [farm] commodity.” In other words, since you don’t buy the baby goats when you’re done with class, local zoning means Ms. Morse and her clients are out of luck.

Although goat yoga may not be high on every Oregonian’s to-do list, land-use regulations do impact citizen lives in more pernicious and less-funny ways.

One of the more ubiquitous ways land-use regulations harm non-yogis is by inflating housing costs. My studies indicate that the relationship between land-use regulations and home prices is highly statistically significant, or unlikely to occur based on random chance alone. In 44 states, new land-use regulation is correlated with increasing home prices.

Existing research supports this view. For example, Harvard Economist Edward Glaeser finds “zoning and other land-use controls play the dominant role in making housing expensive” and a study by Salim Furth found residents of high-cost coastal areas would pay 20 percent less in homeownership costs if they adopted regulation typical of the rest of the country.

But increasing home prices is just one of many unsavory impacts of regulation. Academic evidence indicates that when restrictive regulation is present, racial and economic segregation increase significantly and geographic mobility and economic growth decline. Another issue is that heavy land-use regulations infringe on basic freedom and individual liberty: land-use regulations hamper individual property owner’s ability to use their property in useful ways that don’t impact other property owner’s ability to do the same.

In spite of the relationship between land-use regulations and undesirable outcomes like segregation and housing shortages, the quantity of zoning and land-use regulations continues to grow. In fact, the quantity of annual land-use regulations more than doubled in the United States between 1980 and 2010 alone, as measured by related appellate court cases. Oregon, a state famous for its conservation-minded land-use regulation, added more land-use regulations (adjusted per capita) between the years of 2000 and 2010 than 43 other states.

This helps to explain why Portland’s Mayor Ted Wheeler recently filed an ordinance to extend the “Housing State of Emergency” declared by Portland’s City Council for an additional 18 months. Thanks to Portland’s heavy land-use regulations, like its urban growth boundary, the Portland housing market was under-built by approximately 23,000 units of housing between 2006 and 2015. 

Because current Oregon law requires each city establish urban growth boundaries of their own, housing supply shortages are magnified throughout the state. Not surprisingly, home prices in Oregon continue rising. Zillow forecasts Oregon home prices are likely to climb another 3.7 percent over the coming year.

And although Oregon has made past efforts to scale back development regulation, the total burden of land-use regulation is still heavy and restrictive. As long as it is, regulation will continue to negatively impact Oregonians’ ability to innovate, work, and live affordably—and even to practice goat yoga.

Talk to a Brazilian lately and there is not much reason for him or her to be cheerful—other than the good shape of their national football team. The country is still reeling from the worst economic crisis in a century. On top of that, the entire political class is mired in what has been called “one of the most symbolic corruption cases in history.” The popularity of president Michel Temer, who is personally implicated in the corruption scandal, is in the low single digits.

Yet Brazilians should be proud of the way their legal system is fighting corruption. In fact, the constitutional and policy reforms that Brazil has implemented in the last two decades affecting its judicial system and prosecutorial bodies are an example to other countries, particularly in Latin America, as Geanluca Lorenzon explains in a Cato Policy Analysis published today. Among these reforms is the introduction of plea-bargaining, which has proven crucial in unearthing a vast web of corruption in the Lava Jato scandal. Other changes include giving more autonomy to the federal police and prosecutors, as well as implementing a merit-based selection system to choose judges and prosecutors, allowing individuals with no political connections to reach these positions.

Indeed, if you talk about corruption and abuse of power to people from most Latin American countries, it is very likely that they will express admiration—and a high degree of envy—about the sight of powerful politicians and business people being brought to justice in Brazil.

This is not to say that Brazil is out of the woods. On two occasions, the lower house of Congress voted against sending Temer to trial in the Supreme Court on corruption charges. In another case, the Supreme Court relented on its power to remove a lawmaker implicated in the Lava Jato scandal from office (senator and former presidential candidate Aecio Neves), basically granting Congress the power to shield its member from prosecution. The political class is fighting hard for its privileges.

However, just as institutions have changed in Brazil, attitudes have changed as well. Brazilians show less tolerance towards corruption and abuse of power. The media is more assertive in exposing powerful politicians and business people. And judges and prosecutors are actively prosecuting and sentencing the corrupt. This bodes well for Brazil in the long run. 

Priya Krishna reports at Atlas Obscura on one business struggling with the implications of the Obama-era ban on trans fats that goes into effect next year:

The Berger Cookie has become a fixture of Baltimore culture—a point of pride for residents, and an essential item on lists of top city activities….But here’s the rub: One of the most essential ingredients in the Berger Cookie is trans fats. Trans fats are what make the chocolate super creamy, prevent the fat and the water in the dough from separating (which would yield an overly crumbly cookie), and keep the cookie stable in both very warm and very cold settings.

Cookie producer Charlie DeBaufre, interviewed for the article, “refers to the past year as ‘frustrating and scary,’ as so many of his trans fat-free experiments have been failures. ‘I have spent $10,000 trying to get this worked out. I am not a big business. I don’t have an R&D Department. I have to shut down production for a few hours, still pay people for labor, and then most of the product gets trashed. It’s tough.’”

When I wrote about the ban two years ago in this space, changing popular preferences had already cut trans fat consumption by 85 percent. But while applications like deep-frying have had relatively straightforward substitutes, trans fats are tricky to replace across a variety of more specialized food applications, especially while accommodating individual dietary restrictions. Leading replacements like palm oil may themselves not be particularly healthy and may bring other problems of their own.  

A 2013 Reason-RUPE poll found that by a margin of 71 to 24 percent, consumers favor freedom of choice. Time to get the message to the paternalists in Washington, D.C.: don’t let this be the way the cookie crumbles.

Criminal defense is personal business. A criminal defendant may never face a more momentous occasion than his trial, nor one where his decisions have greater personal consequence. For this reason, the Constitution not only mandates rights for the accused but also secures a defendant’s autonomy in the exercise of those rights: “The Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense.” Faretta v. California, 422 U.S. 806, 819 (1975).

Robert McCoy sought to exercise his autonomy on one of the most fundamental decisions a defendant can possibly make—whether to admit or deny his own guilt before a jury. On trial for his life, McCoy made an informed, intelligent, and timely decision to maintain his innocence and put the state to its burden. But that decision was not respected. Over McCoy’s express objection, the trial court permitted his attorney, Larry English, to tell the jury that McCoy was guilty of murder. With the court’s approval, English even purported to relieve the state of its burden to prove McCoy guilty of murder beyond a reasonable doubt. Following this brazen violation of McCoy’s autonomy, the jury returned a unanimous verdict for first degree murder and sentenced McCoy to death.

The Louisiana Supreme Court upheld McCoy’s conviction, and effectively treated his insistence on deciding for himself whether to admit or deny guilt as a claim for ineffective assistance of counsel. But that framing elides the fundamental interest at issue here. In a capital case with overwhelming evidence, it may be tactically advantageous to admit guilt, with the hope of avoiding the death penalty at the sentencing phase. But the issue is not whether such a strategy is reasonable; it is whether a mentally competent defendant, fully informed of his situation, may decide for himself whether to maintain innocence and demand the state prove his guilt beyond a reasonable doubt.

Once a defendant has chosen to be represented by counsel, his attorney has the power to make many binding decisions of trial strategy. But admitting guilt over a client’s express objection is much more than a mere strategic decision; it strikes at the very purpose of a jury trial—the adjudication of guilt—and eviscerates the defendant’s prerogative to decide upon the objectives of representation by counsel. A criminal justice system built upon the presumption of innocence, with ample procedural protections for the accused to put the state to its burden, becomes a process in which an admission of guilt is forced upon a presumptively innocent defendant without his consent.

Beyond the defendant’s personal interest, failure to respect defendant autonomy damages the criminal justice system as a whole. McCoy’s trial reflected the gross spectacle of a divided defense—where the defendant must interrupt and object to his own lawyer’s presentation, and is then impeached by his own counsel under cross-examination. Such a presentation to the jury threatens the adversarial system itself, and undermines public confidence in the fair administration of justice. Adopting the government’s position would also put defense counsel in impossible ethical dilemmas and encourage more defendants to proceed pro se, even if they otherwise would have welcomed the assistance of counsel. The defendant, his lawyer, and the system as a whole will all be best served by a clear decision protecting the defendant’s autonomy.

The United States is poised to significantly expand its ballistic missile defense (BMD) capabilities in the coming years thanks to the 2018 National Defense Authorization Act (NDAA). A compromise version of the bill passed Congress on November 16th gives the green light to the Department of Defense to develop new BMD capabilities and expand existing systems. Congress still needs to appropriate funding and the Trump administration will set BMD policy in the months to come, but the NDAA provides valuable insight into the future of U.S. capabilities.

An eye-popping funding increase for the Missile Defense Agency authorized in the NDAA indicates both Congress and the Trump administration’s intention to beef up the nation’s BMD capabilities. The NDAA authorizes $12.3 billion for the agency, a staggering $4.4 billion more than its initial budget request of $7.9 billion. The lion’s share of the increase stems from a last-minute request made by the White House that argued more BMD spending is necessary to respond to the growing North Korea threat. There is no guarantee that Congress will appropriate all of the money that it authorizes in the NDAA, but both Congress and the Trump administration seem intent on throwing more money at BMD.

Most of the BMD programs authorized by the NDAA are supposed to protect the continental United States from a North Korean intercontinental ballistic missile (ICBM). Such systems are very expensive and have a poor testing record, but the threat posed by Pyongyang’s ICBMs provides political cover for policymakers to make big investments in homeland BMD.

The homeland BMD improvements in the NDAA fit into two broad categories. The first category includes existing capabilities that will expand and be tested more frequently. For example, the NDAA authorizes up to twenty additional interceptors for the Ground-Based Midcourse Defense system and gives the Department of Defense a green light to expand the capacity of the system’s missile fields in Fort Greely, Alaska. The NDAA also requires the Missile Defense Agency to test the SM-3 Block IIA interceptor, which started conducting intercept tests earlier this year, against an ICBM-range target no later than December 31, 2020.

The second category of BMD systems in the NDAA include more exotic capabilities that are in very early stages of development. Examples of these capabilities include space-based sensors and interceptors, and systems capable of destroying ballistic missiles in the boost phase of flight. The sections of the NDAA that deal with these capabilities come with the caveat that their development is tied to the ongoing BMD review. If the review recommends developing such systems, the Department of Defense will pursue the capability. Many of the exotic capabilities in the NDAA will be very expensive to develop and deploy, and they probably won’t work as intended.

North Korea is the proximate cause of the BMD expansion teed up by the NDAA, but the strategic impact of these systems go beyond the peninsula. An expanded and improved U.S. BMD architecture could damage strategic stability with other nuclear powers. Building a better shield against missile attack seems entirely defensive to policymakers in Washington, but to states engaged in security competition with the United States this “shield” could encourage U.S. aggression by reducing the targeted state’s ability to retaliate against a U.S. attack.

From a purely technical perspective, the shortcomings of America’s BMD capabilities should reassure other nuclear powers that their arsenals still pose a viable deterrent to a U.S. attack. Indeed, U.S. policy statements on BMD consistently mention that the systems are intended to defend against limited missile attacks by relatively unsophisticated adversaries such as Iran or North Korea. However, America’s relentless pursuit of more numerous and advanced BMD capabilities coupled with the development of increasingly accurate nuclear and conventional strike capabilities foster the perception that the United States wants to break out of nuclear vulnerability.

If nuclear powers locked in broader competition with the United States (e.g. Russia and China) make nuclear posture decisions based on worst-case perceptions, a future crisis with the United States could have very dangerous escalation risks. Strategic stability is mentioned briefly in the NDAA, but the bulk of the bill and the overall outlook of both the Congress and the Trump administration toward BMD capabilities suggest minimal concern about the impact these systems could have on strategic stability. Before Congress authorizes even more BMD capabilities, it would be wise to consider the reaction of other nuclear powers besides North Korea. 

A Trump friend wants a subsidy from the Department of Energy (DOE) to complete a nuclear power plant in Alabama, reports The Daily Caller. Frank Haney wants a DOE loan guarantee to open the Bellefonte nuclear plant, which used to be owned by the TVA. Alabama congressman Mo Brooks is supportive saying, “They seek the same treatment recently given the Vogtle plants in Georgia.”

Rep. Brooks is right that the Vogtle nuclear plant in Georgia is receiving federal subsidies, but that project is a $25 billion boondoggle. It has been plagued by cost overruns and bankruptcy.

As a representative of the people, Brooks should be concerned that Alabama power customers will get hit with bloated nuclear costs, as Georgia power customers will be. As for Haney, if he wants to swim against the tide of natural gas generation, he should swim with his own money.

Why is DOE Secretary Rick Perry handing out $3.7 billion in loan guarantees to Vogtle? He is turning Vogtle from an Obama scandal into a Trump scandal. Sadly, it was clear during Perry’s confirmation hearing that he had already capitulated to big government.

As for Bellefonte, we should withhold the subsidies and encourage Frank Haney to reuse the cooling towers he owns in a creative way. Maybe a climbing park with ziplines? A modern art museum? Affordable housing? Maybe a vertical car storage facility?

The federal government spends about $900 million a year on civilian nuclear activities. But why? After six decades of subsidies, the nuclear industry should stand on its own two cooling towers.

I discuss energy subsidies further in this study and TVA in this study.

Data from a new Government Accountability Office (GAO) report shows that interior checkpoints manned by Border Patrol agents are a poor use of resources, at least from an enforcement perspective. Border Patrol checkpoints would have to have apprehended about 100,000 to 120,000 more illegal immigrants from FY2013-2016 than they actually did to justify the man-hours spent occupying them by agents. Even those who support expanding immigration enforcement along the border should recognize that checkpoints are a waste of scarce border security resources. 

Border Patrol agents man checkpoints within 100 miles of the U.S. border where they can stop motorists, inquire about immigration status, and enforce other laws. Checkpoints are a significant risk to civil liberties and are expensive to run. Supporters argue that checkpoints are effective at enforcing federal laws against illegal immigration and drugs, although Border Patrol officials state that they are more concerned about the former. However, the number of illegal immigrant apprehensions, drug seizures by weight, and the deployment of Border Patrol man-hours to checkpoints show that they are not a good use of resources if the goal is to enforce immigration and drug laws.

Figure 1 comes from data reported by the GAO for FY2013-2016. About 9.4 percent of all man-hours worked by Border Patrol were at checkpoints but they only apprehended 3.1 percent of all illegal immigrants apprehended and 5.4 percent of all marijuana seized by weight, at best. At worst, Border Patrol apprehended only 1.9 percent of all illegal immigrants at checkpoints (this same number estimate is not reported for marijuana seizures). This means that Border Patrol agents would have to have apprehended 101,219 to 120,978 more illegal immigrants from FY2013-2016 at checkpoints than they actually did in order for their expenditure of man-hours to be proportional to their apprehensions. 

Border Patrol would have had to seize about 410,952 more pounds of marijuana at checkpoints from FY2013-2016 for their man-hours expenditure there to be proportional to the amount of the drug that they seized. Each unit of time that a Border Patrol agent spends at checkpoints results in fewer apprehensions and marijuana seizures than the same unit of time does spend enforcing those laws outside of checkpoints.

Figure 1

Border Patrol Man-Hours, Marijuana Seized by Weight, and Immigrant Apprehensions by Location, FY2013-2016

 

Source: Author’s Calculations from GAO.

The allocation of Border Patrol man-hours and the percent of illegal immigrant apprehensions by location comes from pages 29 and 41, respectively, of the GAO report. The marijuana seizures by weight come from page 81, where I multiplied the number of seizures by the maximum possible weight in each category, standardizing for ounces. For the category of marijuana seizures that weighed 250 pounds or more, I assumed that the average seizure was 500 pounds. Marijuana seizures by Border Patrol that weighed 250 pounds or more were only about 1.8 percent of seizures and only 3.7 percent of them occurred at checkpoints so any error from my over-or-underestimation of 500 pounds doesn’t much change the result. 

Defenders of checkpoints could argue that they deter illegal immigration, so the best measurement of their effectiveness is not necessarily the number that they do actually apprehend at checkpoints. By occupying checkpoints, Border Patrol agents could divert illegal immigrants and drugs into the hands of Border Patrol agents occupying other non-checkpoint locations. Thus, checkpoints wouldn’t get the apprehension or seizure credit even though they would deserve much of it. Those are defensible theoretical arguments but they lack evidentiary support. Border Patrol should provide that support to justify its seemingly wasteful deployment of agents to checkpoints.

A simple comparative static analysis of man-hours spent on Border Patrol checkpoints shows that they result in apprehending far fewer illegal immigrants and seize less marijuana, per man-hour, than Border Patrol manpower deployed elsewhere. The government needs to make a reasonable case for why this seemingly inefficient allocation of Border Patrol resources to checkpoints is wise. If they cannot do that then they should shut down the checkpoints and stop harassing motorists

In today’s Friday afternoon “news dump”—a tactic to either bury bad news or, as here, to get reporters scrambling to cover an important story despite weekend plans—President Trump added the following people to his list of potential Supreme Court nominees: Seventh Circuit Judge Amy Coney Barrett, Georgia Supreme Court Justice Britt Grant, D.C. Circuit Judge Brett Kavanaugh, Eleventh Circuit Judge Kevin Newsom, and Oklahoma Supreme Court Justice Patrick Wyrick.

These are stellar additions to the existing list of Supreme Court potentials. They show that the administration’s judicial-nominations team continues to be serious about picking people who are widely respected for their intellectual rigor and commitment to the rule of law. The inclusion of two more state justices—and only one from Washington (or anywhere in the Acela corridor)—also shows the national scope of the search for legal talent. Not everyone will agree with everything these jurists have written, but nobody can doubt that they are eminently qualified to join the highest court in the land. 

I’ll have more to say in coming days and weeks about the significance of this larger list and the role it plays in the context of President Trump’s judicial nominations more broadly. 

The City of Calhoun, Georgia, adopted a scheme by which bail was set to a pre-determined amount, resulting in Maurice Walker being held in jail for nearly 2 weeks on misdemeanor public drunkenness charges. Walker challenged detention on behalf of himself and those similarly situated, including persons held on traffic offenses. 

The federal district court got it right and enjoined the city from enforcing its scheme: when setting bail for criminal defendants, basic due-process principles require a judge to take into account the defendant’s income and set an individually payable amount. That rule exists to ensure against a manifest injustice, converting pre-trial liberty from a right into a privilege of the wealthy. But Calhoun is pursuing an appeal, now making its second appearance before the U.S. Court of Appeals for the Eleventh Circuit. As Cato points out in our amicus brief supporting Walker (essentially the same one we filed at an earlier stage of litigation), the due-process rule that the city violated is quite literally as old as the common law.

That right to individualized bail has existed at law for nearly a millennium. Following the Norman Conquest of England in 1066, England developed a robust bail system which ensured the right to pre-trial liberty. The 1215 Magna Carta enshrined that right: “No free man shall be arrested or imprisoned … or victimized in any other way … except by the lawful judgment of his peers or by the law of the land.” When the Stuart Kings of England attempted to impose further absolute monarchy, they chose to attack the right to pretrial liberty and aggrandize royal detention powers. In 1627, Charles I arrested five knights for unnamed offenses. Counsel for the knights challenged their detention on the ground of the Magna Carta’s liberty guarantee. The royalist King’s Bench denied that defense—contravening 400 years of law—but the House of Commons overruled the case in 1628 by passing the Petition of Right: “no freeman in any such manner as is before mentioned, be imprisoned or detained.”

Charles I was eventually beheaded in 1649 by rebel forces under parliamentary command for his constant usurpation of English constitutional rights. When his son Charles II was restored to the throne, he also attempted to impose absolutist policies, particularly regarding the power to detain. His abuse of jurisdictional loopholes led to the 1679 Habeas Corpus Act. Charles II was also (in)famous for setting very high bails, an issue Parliament addressed in 1689.

The same right to individualized bail is protected in the U.S. Constitution’s due process clauses—the Supreme Court has said as much in United States v. Salerno (1987) and Stack v. Boyle (1951)—as well as the Eighth Amendment’s prohibition on excessive bail. Constitutional history could not be clearer about bail and pretrial liberty: it must be available and affordable to all but the most dangerous defendants.

The City of Calhoun now stands with the Stuart Kings among the tyrants of history who usurp ancient rights—and on appeal is trying to defend that title. The city’s best course would still be to abandon its defense and comply with basic due-process requirements that preserve the freedom of the poor. That would save its taxpayers some legal fees to boot. But it has refused to do so, so this winter the Eleventh Circuit will again be hearing Walker v. City of Calhoun.

Yesterday HUD Secretary Ben Carson tweeted that “The Low-Income Housing Tax Credit [LIHTC] is one of the most effective tools we have to create affordable housing.” And Secretary Carson’s presidential advisor published an op-ed yesterday which lauded LIHTC as a prime example of “the most effective and efficient use of the government’s resources.”

That is high praise for a program known for expense, complexity, lack of oversight, and abuse. LIHTC is arguably one of the most inefficient housing subsidy programs that the federal government administers.

Chris Edwards and I detail some of LIHTC’s failings in our report published earlier this week. One of LIHTC’s problems is that it doesn’t successfully accomplish its own objectives to redistribute to low-income tenants and create new housing.

First, most of the LIHTC subsidy goes to developers, lawyers, accountants, and financiers rather than low-income tenants. A 2011 study found that low-income tenants capture one-third of the subsidy. That leaves two-thirds of the benefit for corporations, banks, accountants, and lawyers involved in the process.

Second, LIHTC displaces similar market-rate housing. A recent study estimated that “nearly 100 percent of LIHTC development is offset by a reduction in the number of newly built unsubsidized rental units.” That means LIHTC requires taxpayers fund housing that would be built on the private market.

Another problem is that LIHTC is relatively expensive even compared to other housing and other government housing programs. Michael Eriksen’s work suggests LIHTC units cost 20% more per square foot than medium-quality market-rate housing, and the Government Accountability Office (GAO) found LIHTC units cost 19-44% more than housing voucher units over their lifetime.

Not to mention, LIHTC has a history of fraud and abuse. NPR ran a documentary that outlined some of the recent cases earlier this year.

This problem is likely due to the federal government’s “minimal” oversight of the program. The IRS oversees LIHTC but has only audited 13 percent of state administrators during the program’s entire existence. As a GAO auditor put it earlier this year, the “IRS and no one else in the federal government really has an idea of what’s going on.”

This is just a sampling of LIHTC’s problems; additional issues are noted in the report. If LIHTC is HUD’s version of an “effective” and “efficient” government program then that explains a lot.

See our report for more details on the Low-Income Housing Tax Credit.

Pages