Policy Institutes

Seven years ago tonight John Stossel’s show debuted on Fox Business. This week he announced that the show will end next week.    Some years ago – I’m not sure whether he was still on ABC’s “20/20” then or had moved to Fox – I introduced John at a Cato event as “the most visible, most valuable libertarian in America.” That’s still an accurate assessment.   I first noticed John’s interest in freedom at the end of 1989 when he did a “20/20” piece on “The Positives of Deregulation,” reporting on the new and improved products and services that deregulation had delivered during the 1980s. I remember especially the afterword, when John sat at the anchor desk with Barbara Walters and Hugh Downs, and Downs said, “That was very interesting. It had never occurred to me that there was anything good about deregulation.” I thought to myself, “Really? I understand why some people favor regulation. You just thought deregulation was delivered by space aliens or Mr. Potter of Potterville?”   Then in 1994 John got to do his first hour-long special on ABC, “Are We Scaring Ourselves to Death?” I had the good fortune to attend a taping of a late-night followup where people with varying views watched the show and then discussed it with John. As the segments were shown, I could hear the gasps in the audience around me. Environmentalists and others had never seen a major network program question their claims. But on ABC and later on Fox, he went on doing hour-long investigations of such topics as “Freeloaders,” “Greed,” “Stupid in America,” “Whose Body Is It Anyway?” and “Is America Number 1?” (featuring Cato senior fellow Tom G. Palmer).   I was proud to appear on his shows many times, including this 2015 special on spontaneous order.    John Stossel isn’t retiring. Reportedly, he’ll continue appearing on Fox shows and will also work with Reason.tv and other libertarian organizations on video projects. Meanwhile, much of his work is made available to teachers and students by Stossel in the Classroom, and lots of his specials and regular shows can be found online.   From “The Positives on Deregulation” in 1989 through last night’s “Death by Socialism” and no doubt next Friday’s final show, John Stossel has been bringing a needed dose of reality – and a lot of libertarian scholars and activists – to network television.

Of all those whose predictions were dashed by this year’s presidential outcome (“Trump is headed toward a major loss” his Oct. 19 headline blared), few have been more exercised than the Washington Post’s E.J. Dionne (“white identity politics and male self-assertion triumphed” he railed the day after). Yesterday, in a piece titled “America will soon be ruled by a minority,” he joined the chorus now condemning the “undemocratic” Electoral College—in the name of the Founders, no less, the very men who created it. Ever the good progressive, he fails to appreciate the role states were meant to play in ordering our public affairs.

This round, of course, it’s the disparity between the Electoral College vote and the popular vote that animates Dionne: “For the next two and probably four years,” he writes, “a majority of Americans will be governed by politicians largely elected by a minority of us.”

The inherent illogic of our practices, and the fact that they have nothing to do with the founders’ intentions, is underscored by this contradiction: We are supposed to ignore the national popular vote but deeply respect Trump’s narrow 77,000 popular-vote advantage in the three states that will tip the electoral college his way. (original emphasis)

Having thus implied that the Founders intended us to be ruled by popular majorities, Dionne writes next, curiously, that the Constitution itself “makes no mention of popular votes because the framers never expected there to be any. They saw the electoral college as a deliberative body chosen by state legislatures.” Well, which is it? Did the Founders intend the president to be elected by national popular vote or by the Electoral College?

What the Constitution does say in relevant part is that “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.” (emphasis added) At the nation’s outset, to be sure, more state legislatures than not appointed electors; but early on that balance began shifting toward selection of electors by popular vote. Moreover, if Dionne’s touchstone is the “founders’ intentions,” what better evidence than in Hamilton’s Federalist 68, “The Mode of Electing the President”: “A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated [tasks].” (emphasis added)

So that tips the balance toward popular election of electors, by state, not nationally. And therein lies the genius of the Framers. They were no friends of direct democracy. Indeed, they feared undiluted majoritarian rule almost as much as royal rule. They put liberty first, with democracy as one, but only one, means toward securing it.

At the end of the day, however, it is those countermajoritarian provisions that most exercise Dionne. Thus, he goes next after the Senate, which “compounds the minority government problem,” and then after Article V’s amendment procedures, which enable small states, he says, to block electoral college reform.

In so arguing, Dionne stands in the long tradition of his progressive forebears who sought to reduce the role of the states, thereby to enhance centralized national power. Thus in 1913, at the height of the Progressive Era, they pushed through both the Sixteenth Amendment’s income tax, which vastly expanded federal power, and the Seventeenth Amendment’s direct election of Senators, which reduced the power of state legislatures.

The direct election of the president by a national popular vote would have similar effects by vastly increasing the power of a few large states—Democratic Party bastions, Dionne frankly admits—at the expense of the rest of the country. It would be one more step toward the direct democracy progressives have always sought, which the Founders meant to check, through federalism, in the name of individual liberty.

Imagine that you’re a small business owner getting ready to go into your busy season, when several protestors come onto your property and begin disrupting your workers. Ordinarily, you would call the police and have the trespassers removed so that you could continue with your operations. But in California, that’s not an option for some property owners.

Cedar Point Nursery—a strawberry farm near the Oregon border—didn’t have to imagine that scenario. In fall 2015, union protesters entered Cedar Point’s property at five o’clock in the morning, moving through trim sheds—where hundreds of employees were preparing strawberry plants during the final stage of the six-week harvesting season—with bullhorns, distracting and intimidating its workers.

This is where you would think you could appeal to the authorities to have unwanted visitors removed, but in 1975, California’s Agricultural Relations Board (ALRB) promulgated a regulation that promotes trespassing! This law—known as the “Access Regulation”—grants a right of access by union organizers to the premises of an agricultural employer for up to three hours a day and 120 days a year. In other words, California has granted an easement for unions to enter onto private property, extinguishing the owner’s right to exclude others.

The Fourth Amendment, however, protects private businesses (and everyone else) from such an invasion of their property rights. Indeed, the Fourth Amendment was drafted as a bulwark against the rampant government oppressions—invasions of people’s houses and businesses without a warrant—that existed before the Founding. The right to exclude was a fundamental aspect of the protection of property at common law, and has continued to be recognized as such throughout our nation’s history. Yet the Access Regulation essentially deputizes trespassers who, through their disruptive presence, are allowed to seize private property.

Cedar Point brought a civil rights suit against the ALRB and United Farm Workers, but the district court ignored the importance of property rights in determining whether the Fourth Amendment was implicated and upheld the law. Cato has now filed an amicus brief in the U.S. Court of Appeals for the Ninth Circuit, supporting Cedar Point and other property owners and asking that the district court be reversed.

California’s Access Regulation granted outsiders a gratuitous easement and extinguished the important right to exclude others, thus creating a classic seizure of property that violates the Fourth Amendment. 

President-elect Donald Trump says that he will cut wasteful spending and “drain the swamp” in Washington. The first thing he should target is business subsidies in the federal budget. Such “corporate welfare” spending attracts corruption like garbage dumps attract rats.

A Cato study estimated that there is $100 billion of corporate welfare in the budget. That spending harms the economy, but the incoming administration should be aware that such spending also spawns damaging scandals. That pattern goes all the way back to the 19th century. Federal subsidies for the first transcontinental railroad led to the Credit Mobilier scandal of the 1870s, which involved dozens of members of Congress.

More recently, corporate welfare has spawned these scandals: 

  • HUD Subsidies under Reagan. President Ronald Reagan’s Department of Housing and Urban Development overflowed with corruption in the 1980s under Secretary Sam Pierce. Pierce routinely dished out grants, loans, and other subsidies to friends, business associates, and Republican Party contributors.
  • Commerce Subsidies under Clinton. President Bill Clinton’s Commerce Secretary, Ron Brown, used business subsidies as a fund-raising tool for the Democratic Party in the 1990s. Corporate executives who played the game were given access to export promotion trips and federal export loans. In his investigations, U.S. District Judge Royce Lamberth determined that Commerce officials concealed and destroyed documents relating to the trade mission scandal, and he compared officials to “con artists.”
  • Enron Subsidies under Clinton and Bush. Enron Corporation lobbied federal officials to expand export subsidy programs, and it received billions of dollars in aid for its risky foreign schemes. During the Clinton and Bush administrations, high-level officials went to great lengths to aid Enron on an Indian power plant deal. Federal aid induced Enron to make misguided foreign investments, and the resulting losses helped cause the company’s implosion.
  • Green Subsidies under Obama. The Washington Post found that “Obama’s green-technology program was infused with politics at every level.” The $535 million loan guarantee for the failed Solyndra is a prime example. The Department of Energy approved the loan after pressure from the White House. A main Solyndra investor was a billionaire Obama fundraiser. The New York Times found that Solyndra “spent nearly $1.8 million on Washington lobbyists, employing six firms with ties to members of Congress and officials of the Obama White House.”

American businesses have a right to lobby the federal government. But Congress throws fuel onto the corruption fire by funding business subsidy programs. The Trump administration should work to eliminate corporate welfare, including green subsidies, export subsidies, and housing subsidies. Corporate welfare undermines honest governance, and one message of the election is that Americans are sick and tired of the resulting scandals. 

Ben Carson was nominated secretary of the Housing and Urban Development Department (HUD) on Monday and his appointment will be debated endlessly over the coming months, with critics quickly honing in on his lack of housing policy and government experience. No matter, though; the naysayers need not stop him from doing an excellent job as HUD’s top administrator. The job can be done well if the following ideas remain front and center.

High-cost housing is a product of government regulation

Carson would be wise to remind everyone that cities do have control over sky-high housing prices: in fact, if cities relax zoning and land use regulations and simplify developer approval processes they can decrease the cost of housing across the board, no exceptions. Zoning regulations are the real culprit in places like Manhattan, where research demonstrates that regulations price the poor, the young, and the unestablished out of high opportunity areas. Local regulation also hampers innovation in the housing market, just look at the sad demise of low-cost micro-housing in Seattle.

HUD is not the nation’s urban planner

We can be quite certain that Carson will move away from the social-engineering-of-cities model advanced under HUD Secretary Julian Castro. Specifically, Carson should dig his heels in on the Affirmatively Furthering Fair Housing rule promulgated last year, a rule that allows HUD to oversee where people live locally based on their race. Fortunately, Carson has voiced opposition to the rule, and President-Elect Trump agrees, so it seems that Carson may have the support that he needs to remind the agency that not every local municipality’s land use and zoning regulations are under HUD’s jurisdiction.

Cities are unique, so housing solutions should be, too

Carson should keep in mind that what works in one city is not likely to work in all of the other ones. Past HUD Secretaries, like Shaun Donovan, made the mistake of thinking about HUD policy as urban policy, and operated under the belief that the lessons of his native – and hyper-urban – New York City could be applied everywhere. A better idea is to remember that the diverse United States includes small towns, rural America, and suburbs where a cookie-cutter approach won’t be successful. HUD policies should reflect a high degree of latitude for cities so that local governments can sort out their problems on their own.

Social justice doesn’t mean preferential treatment

Likewise, Carson should eliminate small area fair market rents, a social engineering tack used to push low-income individuals to locate in wealthy neighborhoods. Housing policy should remain neutral toward where people decide to live. From a political angle, Carson would do well to remember that small area fair market rents are exactly the type of policy that treat low income individuals preferentially as compared with lower-middle income individuals, and therefore, the kind of policy that Trump voters resent most.

HUD money is taxpayer money

Speaking of which, Carson must remember that HUD money is simply taxpayer money. This isn’t difficult to understand in the abstract, but the practical implications for HUD policy are more challenging to grasp. Carson should work to eliminate rules that require local communities to comply with federal checkboxes in order to obtain agency block grants. Citizens are entitled to sharing the benefits of their own tax money, independent of whether state administrators fill out the forms on time.

HUD does not know better than individuals and private businesses

Although apparently tempting for both democrat and republican administrations, Carson should eschew policies that prioritize homeownership over renting, and vice-versa. Each of Clinton, Bush, and Obama administrations have promoted their personal housing predilections, in spite of the fact that history indicates that government does not know better than individuals what sort of homes they should live in, and housing policy should be neutral rather than preferential in that regard. Consider the housing market fallout of the financial crisis – a result of government policies that promoted the irrational belief that everyone should be a homeowner – a cautionary tale.

Housing technocrat or not, with these ideas in mind, Carson will be well on his way to success.

Angelo A. Paparelli contributed to this post. 

This week last year, Donald Trump proposed prohibiting all Muslim immigration to the United States. He altered the proposal this year to specify “suspending immigration from nations tied to Islamic terror.” He told CNN that this was actually intended as an expansion of the Muslim ban. Last week, he said, “People are pouring in from regions of the Middle East,” but that he would “stop that dead, cold flat.” He has also made clear that this would be one of the actions that he takes as president during his first day in office. This promise implies that he has the power to do so under current law, but that is not the case. It is illegal to discriminate against immigrants based on their national origin.  

Even while delegating to the president broad powers to exclude immigrants, Congress also expressly forbade banning immigrants based on their race or national origin. President Trump will almost certainly run into legal difficulties if he attempts to carry out his promise.

Text of the law bans discrimination based on national origin

At first blush, it would seem that the president can ban people based on their nationality or country of residence. The Supreme Court has granted Congress extensive leeway under the plenary power doctrine to limit immigration based on criteria—such as race or national origin—that would be considered unconstitutional in other contexts, and proponents of Trump’s plan claim that Congress authorized such bans by pointing to a provision of section 212(f) of the Immigration and Nationality Act (INA), the law that controls most U.S. immigration policies:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

This seems to hand unequivocal authority to the executive branch to determine who it may admit to the United States. However, another section of the law clearly bans discrimination against certain classes. Section 202(a)(1)(A) of the INA states that except in cases specified by Congress in section 101(a)(27):

…no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.

While section 212 grants the president a general power to exclude certain immigrants, section 202 limits this power. Note that this section does not prevent discrimination based on religious affiliation, political belief, or ideology, but Trump’s new policy would run afoul of at least one if not all three of those last three restrictions—nationality, place of birth, or place of residence—depending on how it was applied. “Place” of birth is actually a broader restriction than nationality, meaning that even if Trump’s ban applied to subnational or regional levels, it would still be illegal.

Section 202 does not protect all types of people who wish to come here from discrimination based on national origin. It is limited only to immigrants or so-called green card holders. Legally, immigrants are foreigners who enter on visas granting legal permanent residency in the United States as well as noncitizens whom the U.S. Citizenship and Immigration Services has adjusted their status to that of a permanent resident. The most common types of immigrants are immediate relatives of U.S. citizens—parents, spouses, and their minor children—who have no numerical limit. Other types include employees sponsored by U.S. businesses, adult children of U.S. citizens, their siblings, and immediate relatives of legal permanent residents. Refugees and asylees who have already entered the United States and held status for a year are eligible for immigrant visas, making discrimination against them at that stage also illegal.

Refugees outside of the United States, however, could still be excluded based on nationality before they enter as they do not enter on an immigrant visa. Obviously all nonimmigrants—guest workers, tourists, and other temporary visitors—could conceivably be subject to this discriminatory policy. It could also apply to those who are claiming asylum in the United States, but at the same time, the law prohibits deporting people who face a likelihood of persecution in their home country, which could leave such people in limbo.

Finally, because section 202 applies only to the issuance of the visa, it would not necessarily bar other types of discrimination, such as reporting or registration requirements. This type of discrimination was also upheld in a federal circuit court case involving Iranian nonimmigrant students in the United States who were required in 1979 to report to an immigration service office for interview and registration.

Section 202 also does not prohibit discrimination based on religious affiliation, but recently Trump has been adamant that his proposed ban would apply to countries rather than religions. “I’m looking now at territory. People were so upset when I used the word Muslim,” he told NBC. “I’m okay with that because I’m talking about territory instead of Muslim.” If he maintains this position, he will clearly be in violation of the law.

Trump’s plan is a more extreme overreach than anything President Obama tried

Proponents of the Trump plan could argue that section 202 does not directly state that its restriction applies to section 212. But reading section 202 as having no impact on section 212 would mean that section 202 was intended as no restriction at all—something that the president could waive at any time for any reason. By contrast, section 212 would not be rendered pointless if section 202 limits its authority. The president could still bar certain classes of aliens from the United States. He just could not do so based on race, gender, nationality, or place of birth or residence. This interpretation makes sense of both laws in a way in which both serve a purpose.

Any other reading would grant the president power to use his general section 212 authority even in situations in which Congress has said he cannot use it. In other words, it would write section 202 out of the law. To be sure, there is an interesting parallel here between the Trump plan and President Obama’s attempted executive action on immigration, which was criticized—including by the Cato Institute and by candidate Trump—as executive overreach.

President Obama proposed using his general authority in section 274A(g), which recognizes his authority to issue employment authorization to whomever he wants, to grant work permits to unauthorized aliens with U.S. citizen children.  Since it was first enacted in 1986, Congress had enacted provisions limiting the use of or requiring the use of executive power to authorize employment of certain individuals, but none of these provisions applied specifically to the class of noncitizens to whom he wanted to grant employment authorization. President Obama argued that he could use his general authority to issue work permits to anyone so long as the law did not specifically prohibit him from doing so.

Donald Trump’s plan by contrast is a much more extreme overreach. He would be forced to argue that not only could he use his general authority to ban immigrants in any way that he chooses, he could do so even in situations in which the law specifically prohibits him from doing so. This power grab is so much more far-reaching than President Obama’s that virtually any court will likely view it with great skepticism.

It is out of the question to claim that section 202 prohibits discrimination only in the issuance of the physical visa document that allows foreigners to request admission as an immigrant. Sections 201, 202, and 203 of the INA, which are entirely devoted to limiting the number of visas for immigrants, are discussing actual persons who can come and live permanently as a result of receiving a visa, not just about limiting the issuance of the physical documents allowing people to travel to a port of entry and request entry. If it were only referencing visa documents, the president could grant immigrant status to an uncapped number of people without issuing visas to them—which is clearly unjustified.

Legislative history supports a ban on discriminating by national origin

The historical background for the enactment of section 202 supports the interpretation that it was intended to bar all national origin discrimination against immigrants. During the late 19th and early 20th centuries, Congress passed several laws barring the immigration of immigrants based on where they were born or resided. In 1882, it banned “the coming of Chinese laborers to this country.” In 1917, it “excluded from admission” all “persons who are natives… of any country… on the Continent of Asia” from India and eastward—the so-called Asiatic Bar Zone—and in 1924, it implemented the national origins quota system, which skewed the quotas to the benefit of immigrants from Western Europe.

In 1952, Congress debated repealing this prejudicial system, but ultimately refused to do so. Instead, it passed a bill that contained only minor revisions. It was in this law that Congress introduced the section 212 authority to ban immigrants based on nationality. President Truman vetoed the bill, inveighing against it as a violation of the “great political doctrine of the Declaration Independence.” He specifically objected to “powers so sweeping” that they could be used to exclude or deport aliens based on such vague and potentially discriminatory grounds such as “public interest” (powers first included in a bill in 1950 that he had also vetoed). Congress overrode the veto and the legislation became the Immigration and Nationality Act of 1952.

All of this history is important because section 202 was enacted as part of the Immigration Act of 1965, which was intended as a repudiation of the discriminatory system of 1952. The very first paragraph in section 202 (quoted above) banned any attempt to resurrect the old prejudicial system. The rest of section 202 details the new per-country limits, which provide that each country receives an equal share of the annual limits. Senator Ted Kennedy, the congressional architect of the 1965 law, said that it was intended to “eliminate the national-origins system, which was conceived in a period of bigotry and reaffirmed in the McCarthy era.” In other words, the law was intended to repudiate the 1952 act and all that came before it. The Judiciary Committee Report on the bill stated in its first line: “The principal purpose of the bill, as amended, is to repeal the national origin quota provisions of the Immigration and Nationality Act.”

President Lyndon Johnson summed up the law best in his signing statement:

This bill says simply that from this day forth those wishing to immigrate to America shall be admitted on the basis of their skills and their close relationship to those already here. … The fairness of this standard is so self-evident that we may well wonder that it has not always been applied. Yet the fact is that for over four decades the immigration policy of the United States has been twisted and has been distorted by the harsh injustice of the national origins quota system.

Under that system the ability of new immigrants to come to America depended upon the country of their birth. Only 3 countries were allowed to supply 70 percent of all the immigrants. Families were kept apart because a husband or a wife or a child had been born in the wrong place. Men of needed skill and talent were denied entrance because they came from southern or eastern Europe or from one of the developing continents. This system violated the basic principle of American democracy—the principle that values and rewards each man on the basis of his merit as a man. Today, with my signature, this system is abolished.

In other words, the explicit intent of the 1965 law was to “abolish” the very kind of discrimination that Donald Trump is proposing to create by executive fiat. On section 202 in particular, Senator James Easterland, an opponent of the bill, commented:

the President said: ‘The principal reform called for is the elimination of the national origins quota system.’ … In an attempt to carry out the request of the President, we find that section 2 of the bill has amended section 202 of the Immigration and Nationality Act to provide as follows: (a) No person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of his race, sex, nationality, place of birth, or place of residence…

The goals could not have been clearer to anyone—opponent or proponent—and there is simply no way to slip national origin discrimination back into the 1965 act with section 212 of the 1952 act. Senator Bobby Kennedy stated forcefully on the floor of the Senate that he believed that the law would “eliminate from the statute books a form of discrimination totally alien to the spirit of the Constitution.” In the congressional debate over the bill, senators constantly argued that the bill would end, as Senator Jacob Javitas put it, “the basic discrimination” of the 1952 act. To claim that in 1965 Congress did not in fact eliminate the discrimination of the 1952 act but instead continued to allow it under section 212 of that very act flies in the face of not only the explicit text of the law, but pages upon pages of the congressional record.

Court precedent backs a ban on national origin discrimination

The D.C. circuit court of appeals has also found that the president cannot discriminate against immigrants based on nationality. The case involved whether certain asylum seekers could apply for immigrant visas at U.S. consulates outside of their country of origin. The Department of State created new rules making it more difficult to do so only for Vietnamese asylum seekers in Hong Kong, and the asylum seekers sued. The government did not even attempt to argue that section 212 would allow discrimination, but rather that they had changed the rules for reasons unrelated to nationality.

In Legal Assistance for Vietnamese Asylum Seekers v. Department of State, the D.C. circuit granted standing to a U.S. citizen who was attempting to sponsor his Vietnamese spouse in Hong Kong. The court found that discrimination had taken place under section 202. It stated that the policy drew “an explicit distinction between Vietnamese nationals and nationals of other countries.” It wrote:

Where Congress has unambiguously expressed its intent, we need go no further. Here, Congress has unambiguously directed that no nationality-based discrimination shall occur. There is no room for the Service’s interpretation proffered by the Department.

The court stated that the government’s “proffered statutory interpretation, leaving it fully possessed of all its constitutional power to make nationality-based distinctions, would render section 202(a) a virtual nullity.” The court also disregarded the administration’s argument that “it retains discretion under § 1152(a)(1) to discriminate on the basis of nationality so long as its policies are rationally related to U.S. foreign policy interests.” It stated:

Congress could hardly have chosen more explicit language. While we need not decide in the case before us whether the State Department could never justify an exception under the provision, such a justification, if possible at all, must be most compelling—perhaps a national emergency. We cannot rewrite a statutory provision which by its own terms provides no exceptions or qualifications simply on a preferred “rational basis.”…

The court also rejected the idea that the policy was not based on nationality because the administration was doing the same thing to Laotians detained in Thailand. The court also cited this passage from Haitian Refugee Center v. Civiletti, a district court case from Florida in 1980,that concluded:

In 1965, Congress abandoned the national quota system of immigration and added a provision prohibiting discrimination in the granting of visas on the basis of “race, sex, nationality, place of birth, or place of residence.” This provision manifested Congressional recognition that the maturing attitudes of our nation made discrimination on these bases improper.

Congress responded to the decision in the Vietnamese case by amending section 202 to state that the limit on discrimination should not apply to “procedures for the processing of immigrant visa applications or the locations where such applications will be processed.” When the Supreme Court remanded the case in light of this change, the appeals court reversed its earlier decision in 1997. Nonetheless, the amendment clearly shows that Congress did want this anti-discrimination provision to have some effect or it would have just deleted it entirely.

Past presidential actions do not support the legality of Trump’s policy

Proponents of the Trump plan can also point to specific cases in which presidents have used the authority in section 212 to ban certain classes of foreigners. But in almost all of the cases, these actions barred individuals based on their actions rather than their nationality. President George W. Bush, for example, barred the entry of participants in the Mugabe government in Zimbabwe, but not all Zimbabweans. President Obama has exercised the authority under section 212 several times, but has never imposed a ban against an entire nationality.  As a typical example, he prohibited the entry of anyone under a United Nations travel ban in 2011.

No president has ever banned all immigrants from a certain country without any exceptions, as Trump is proposing, and in only a couple of instances out of dozens have presidents exercised the authority in section 212 against a particular nationality at all.

In 1980, President Carter suspended issuances of visas to all Iranian citizens. From the text of his proclamation, it is unclear whether this applied to only nonimmigrant (temporary) visas—which would have been legal—or also to immigrant visas, but news reports imply that it applied only to temporary visitors. A Washington Post report from 1980 discussed the ban applying only to “students, tourists and businessmen”—the main categories of nonimmigrants—and multiple articles from the New York Times framed the issue as only impacting “foreign visitors.” Moreover, government statistics show that thousands of Iranians continued to receive immigrant visas in 1980.

Either way, President Carter only took this action because Iranian rebels seized control of the U.S. embassy and began using the U.S. visa machine to print fraudulent visas, making it impossible to determine who had a bona fide visa. It is also unclear if the ban applied to Iranian nationals whose visas were not issued in Iran. For these reasons, the Carter case is a poor parallel for Trump’s blanket ban.

In 1986, President Reagan suspended entry of all Cubans—immigrants and nonimmigrants—but this bar had a major exception for those who were immediate relatives of U.S. citizens, which is the main category of legal immigration. Cubans are also unlike other immigrants because Cuban immigration is partially governed under the Cuban Adjustment Act of 1966, which does in fact preference the issuance of visas to Cubans by granting visas to almost all Cubans who have been in the United States for a year. In any case, neither president’s actions were challenged in the courts, so their legality remains untested.

The breadth of the Trump plan is unprecedented

These past actions are particularly unconvincing when considering the breadth of the Trump plan. According to Trump, the immigration ban would apply to an entire region of the world. He has even refused to rule out banning immigration from France because “they have totally been” compromised by terrorism. CNN has estimated that a ban broad enough to include France would comprise at least 40 countries, but even the least broad restriction against immigration from countries with “terrorist safe havens” would eliminate all immigration from a dozen nations.

President Obama’s attempted executive actions on immigration were partially struck down in part due to their breadth. The courts conceded the president’s power to authorize immigrants to work and to suspend deportations, but not when it amounted to a wholesale abandonment of the law. This point is even much clearer in this case.

For almost a decade, Congress debated creating an immigration system free from discrimination by nationality, country of birth, or country of residence. President-elect Trump, however, now proposes to discriminate unlawfully against certain foreign nationals on the basis of the same protected grounds without any legislation from Congress.

An important part of Donald Trump’s health care agenda is his pledge to let consumers and employers avoid unwanted regulatory costs by purchasing insurance licensed by states other than their own, a change that would make health insurance both more affordable and more secure. The Congressional Budget Office has estimated that allowing employers to avoid these unwanted regulatory costs would reduce premiums an average of 13 percent. That’s a nice contrast to what Bill Clinton calls ObamaCare’s “crazy system where…people [who] are out there busting it, sometimes 60 hours a week, wind up with their premiums doubled and their coverage cut in half.”

A reporter recently wrote to me: “I’ve talked to many people – health policy experts, regulators, industry leaders – and none of them think it is a good idea. They worry that the policy would promote a race to the bottom, with insurers consolidating in states with the most lenient regulations. They say state regulators would lose their power to protect consumers. They argue that healthy people may save money by selecting cheaper plans, but sick people would end up paying more and/or have trouble accessing care.” Below is my response.

—–

What you have stumbled across is a grand conspiracy against consumers by industry, regulators, and left-wing ideologues.

The big, incumbent insurers like banning out-of-state purchases, because that protects them from competition.

Providers and patient groups like government mandates that force consumers to buy coverage for their products (mental health coverage, contraceptives coverage, acupuncture coverage, etc.). The freedom to purchase insurance licensed by other states would allow consumers to avoid those unwanted costs.

State insurance regulators like banning out-of-state purchases, because they are in the business of providing consumer protections, and the ban gives them a monopoly. Little wonder they produce what monopolies always produce: a high-cost, low-quality product.

The ideologues want to impose Gruber-style hidden taxes on consumers. The freedom to purchase insurance licensed by other states would allow consumers to avoid those hidden taxes.

It would be embarrassing if these groups said any of this explicitly, so they describe the prospect of losing their privilege as a “race to the bottom.”

Nonsense. There would be no race to the bottom. It would be a race to what consumers want: affordable, secure health coverage.

If letting people purchase insurance licensed by other states would lead to a vastly different health-insurance market than we have right now, it merely illustrates how far astray these groups have led us from the sort of health insurance consumers want.

I wrote a rather favorable column a few days ago about a new study from economists at the Organization for Economic Cooperation and Development. Their research showed how larger levels of government spending are associated with weaker economic performance, and the results were worth sharing even though the study’s methodology almost certainly led to numbers that understated the case against big government.

Regardless, saying anything positive about research from the OECD was an unusual experience since I’m normally writing critical articles about the statist agenda of the international bureaucracy’s political appointees.

That being said, I feel on more familiar ground today since I’m going to write something negative about the antics of the Paris-based bureaucracy.

The OECD just published Revenue Statistics in Asian Countries, which covers Indonesia, Singapore, Malaysia, South Korea, Japan, and the Philippines for the 1990-2014 period. Much of the data is useful and interesting, but some of the analysis is utterly bizarre and preposterous, starting with the completely unsubstantiated assertion that there’s a need for more tax revenue in the region.

…the need to mobilise government revenue in developing countries to fund public goods and services is increasing. …In the Philippines and Indonesia, the governments are endeavoring to strengthen their tax revenues and have established tax-to-GDP targets. The Philippines aims to increase their tax-to-GDP ratio to 17% (excluding Social Security contributions) by 2016…and Indonesia aims to reach the same level by 2019.

Needless to say, there’s not even an iota of evidence in the report to justify the assertion that there’s a need for more tax revenue. Not a shred of data to suggest that higher taxes would lead to more economic development or more public goods. The OECD simply makes a claim and offers no backup or support.

But here’s the most amazing part. The OECD report argues that a nation isn’t developed unless taxes consume at least 25 percent of GDP.

These targets will contribute to increasing financial capacity toward the minimum tax-to-GDP ratio of 25% deemed essential to become a developed country.

This is a jaw-dropping assertion in part because most of the world’s rich nations became prosperous back in the 1800s and early 1900s when government spending consumed only about 10 percent of economic output.

And not only were taxes a concomitantly minor burden during that period, but many nations didn’t have any income taxes at all.

At this point, you may be thinking the OECD bureaucrats are merely guilty of not knowing history.

That certainly would be a charitable explanation of their gross oversight/mistake.

But there’s something else in the study that makes this benign interpretation implausible. The study explicitly notes that Singapore is a super-prosperous developed nation with a very low tax burden - way below the supposed minimum requirement identified by the OECD.

Singapore has the highest GDP per-capita of the six countries and one of the lowest tax-to-GDP ratios. …The low tax-to-GDP ratio is explained by lower income tax rates (particularly on corporate income) and VAT rates, compared to other Asian countries. …The tax-to-GDP ratio in Singapore is lower in 2014 relative to 2000, driven by the decrease of individual income tax rates and corporate income tax rates.

Here’s a chart from the report showing that taxes consume less than 14 percent of economic output in Singapore.

Needless to say, there’s nothing in the report to square the circle and justify the claim about the supposed link between higher taxes and economic development. Nothing to explain why Singapore manages to be so rich with such a small burden of government. It’s as if the bureaucrats hoped that nobody would notice that numbers in the study undermined their ideologically driven claim that tax burdens should climb in Asia.

Indeed, I wonder if Hong Kong was omitted from the study simply because that would have further undermined the OECD’s preposterous assertion that higher taxes are a route to economic development.

P.S. Having low taxes and a modest burden of government certainly is part of what can make a nation rich and successful, but the real goal should be to have a good mix of free markets and small government. Singapore does that, ranking #2 in Economic Freedom of the World.

Other Asian nations, by contrast, may have modest fiscal burdens, but the potential economic benefit is undermined by statist policies in areas such as trade, regulation, monetary policy, and property rights. This certainly helps to explain why countries such as Indonesia (#79), Malaysia (#62), and the Philippines (#80) have much lower scores for overall economic liberty.

P.P.S. I’m not sure why the OECD would produce such sloppy research. If they simply wanted to create a false narrative, why didn’t the bureaucrats omit Singapore and simply hope nobody knew the numbers from that country (or the historical numbers for North America and Western Europe)? My suspicion is that the senior political types at the OECD wanted to produce a study that would be helpful for certain politicians  in the region (i.e., allow them to justify higher tax burdens) and they figured a lot of people would only pay attention to the press release.

P.P.P.S. The OECD certainly has a track record of dishonest research.

The Cato Institute has released Policing in America—an extensive national public opinion report that explores Americans’ attitudes toward the police based on an original Cato Institute/YouGov national survey of 2,000 Americans. Here are ten key facts about Americans’ attitudes toward the police. 

  1. There are stark racial and partisan divides in favorability toward policebut not group is anti-cop: 68% of white Americans have a favorable view of the police, only 40% of African Americans and 59% of Hispanic Americans also have a favorable view. Republicans (81%) are 22 points more favorable toward the police than independents (59%) and Democrats (59%). Although some groups have less positive views of the police, findings weaken the ascertain that these groups are “anti-cop.” For instance 9 in 10 white, black, and Hispanic Americans oppose cutting police forces and 6 in 10 worry the police have very dangerous jobs. [1]
  2. 54% say police using military equipment goes too far, while 46% say it’s necessary for law enforcement purposes. Majorities of whites (53%), Hispanics (51%), and blacks (58%) oppose police using military weapons and armored vehicles. Most Republicans (65%) believe police need to use military weapons, while 60% of both Democrats and independents believe police using such equipment goes too far.
  3. 84% of Americans oppose civil asset forfeiture. Americans oppose police seizing “a person’s money or property that is suspected to have been involved in a drug crime before the person is convicted.” When police departments seize people’s property, 76% say the local department should not keep the assets. Instead Americans think seized assets should go either to the state general fund (48%) or a state-level law enforcement fund (28%). A quarter (24%) say police departments should keep the property they seize.
  4. 79% support outside law enforcement agencies conducting investigations of police misconductwhile 21% prefer police departments handle such investigations internally. Strong majorities of Republicans (76%), independents (77%), and Democrats (83%) all agree that outside agencies should conduct such investigations.
  5. 89% of Americans support police body cameras and majorities are willing to raise taxes pay for them (51%) and let police look at the footage before making official statements (52%). Body cameras aren’t a zero-sum proposition: 74% think body cameras protect both officers and citizens equally.
  6. Only 30% say police should prioritize enforcing drug laws.  Instead, Americans want police to prioritize investigating violent crime (78%), protecting people from becoming crime victims (64%), and investigating property crime (58%). Americans across partisan and demographic groups share these top three priorities for law enforcement.
  7. Nearly half (49%) of Americans say “most” police officers think they are “above the law.” African Americans (61%), Hispanics (61%), and Democrats (61%) are considerably more likely than whites (46%) and Republicans (36%) to say that most police officers think they are above the law. Instead, a majority of whites (54%) and Republicans (64%) say police don’t think they’re above the law.
  8. 65% of Americans think police officers “commonly” racially profile Americans and 63% oppose itMajorities of whites (62%), Hispanics (62%), and blacks (77%) oppose police stopping “motorists and pedestrians of certain racial or ethnic backgrounds because the officer believes that these groups are more likely than others to commit certain types of crimes.” Republicans stand out with a slim majority (51%) in favor of racial profiling and 49% opposed. Black Republicans, however, disagree, with 65% who oppose racial profiling and 35% who support it.[2]
  9. 61% say there is a “war on police” in America. Sixty-five percent (65%) of Americans worry that police officers have “very dangerous jobs,” and 58% feel officers too often must deal with recalcitrant citizens who don’t show enough respect. Although Republicans and Democrats both believe police have dangerous jobs, Republicans are more than 30 points more likely than Democrats to believe there is a “war on police” today (82% vs. 49%) and that Americans show insufficient respect to officers (77% vs. 45%). 
  10. African Americans are nearly twice as likely as whites to report a police officer swearing at them. About a quarter of African Americans (26%) and Hispanics (22%) report police using abusive language or profanity with them compared to 15% of whites. Nearly 4 in 10 African Americans (39%) and 27% of Hispanics report knowing someone physically mistreated by police, compared to 18% of whites.
  11. 60% say it’s more important to protect the innocent than punish the guilty. When asked which would be worse, 60% say it would be worse to imprison 20,000 innocent people, while 40% say it would be worse to have 20,000 guilty people who are free. Majorities of Republicans (55%), independents (60%), and Democrats (64%) all agree it’s worse to imprison innocent people. However, Donald Trump’s early core supporters stand out with a majority (52%) who say it’s actually worse to not punish the guilty. Other Republican voters disagree. For instance 65% of Ted Cruz’s early primary supporters say it’s worse to imprison the innocent.[3] 

Click here to read an overview of the report or here for the full report.

The Cato Institute/YouGov national survey of 2000 adults was conducted June 6-22, 2016 using a sample drawn from YouGov’s online panel, which is designed to be representative of the US population. YouGov uses a method called sample matching, and restrictions are put in place to ensure that only the people selected and contacted by YouGov are allowed to participate. The margin of sampling error for all respondents is +/-3.19 percentage points. The full report (.pdf) can be found here, toplines (.pdf) results can be found here, full methodological details can be found here.

 

[1] To be sure, advocates of shrinking police departments are not necessarily “anti-cop” either; however, it’s difficult to argue a person is if they do not want to cut the police force.

[2] Data for support of racial profiling by race/ethnicity and partisanship come from the combined June 2016 and November 2015 national surveys (N=4000), which offer greater precision and smaller margins of error for subgroups. (Unweighted: Black Republicans=45.)

[3] Results are from the November 2015 Cato Institute/YouGov National Survey, conducted November 19 to 24, 2015.

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