Policy Institutes

In environmental policy, the precautionary principle states that a new product, method, or proposal whose effects are disputed or unknown should not be introduced if it is harmful.  The burden of proving that it is harmless falls on its backers – virtually guaranteeing that it won’t be produced.  In contrast, a cost-benefit analysis that compares the probability of harm with the expected magnitude of the benefits is a better method. 

The methods of the precautionary principle are implicitly applied by many opposing the resettlement of Syrian refugees because they deem any risk of terrorism as too great.  The precautionary principle is as improper a standard for determining refugee policy as it is for guiding environmental policy. 

Arguments derived from the precautionary principles are often emotionally driven.  Senator Shelby (R-AL) made such an appeal  when he stated, “We don’t know much about these people. They haven’t really been vetted. They come from an area where there’s a lot of turmoil, a lot of terrorists come from. We don’t need one more terrorist; we got enough right now.”

Senator Shelby is correct that we don’t need another terrorist, but he didn’t explain that the risk of a terrorist coming through the refugee system is low. 

3,252,493 refugees were admitted to the United States from 1975-2015.  During that time period, 20 of those individuals attempted to carry out a terrorist attack or succeeded in doing so inside of the United States.  That is a single terrorist for every 162,625 refugees admitted or one every two years since 1975. 

Although there were only 20 refugee terrorists admitted since 1975, they have only succeeded in murdering three Americans.  Each one of those murders is a tragedy but the chance that an American would be successfully killed by a refugee terrorist was one in 3.6 billion.  Each year an American had a 0.000000028 percent chance of being murdered by a refugee terrorist (for those with poor eyesight, that’s seven zeros to the right of the decimal point).  That’s a small risk.

But, as the implicit proponents of the precautionary principle claim, the costs of refugees in the future could be greater.  Letting them in today could set up a whole raft of unforeseeable future problems unlike those of the past.  That is true.  So even if the rate of murder for future refugees is 100 times greater than the 1975-2015 period, the chance of an American being murdered each year would riseto one in 36.4 million annually or 0.0000028 percent.

Anything could change in the future.  The precautionary principle always rigs the outcome in favor of immigration restriction because it’s impossible to prove that all refugees will be harmless just like it is impossible to prove than any of us will be harmless.  If the precautionary principle is a starting point for debate then those favoring refugees will always fail.  No debate should be stacked this way.        

Perhaps the victims of terrorism from refugees should be very heavily weighted than other deaths in any risk calculation.  Perhaps the threat from ISIS or Syrian refugees is unlike any ever faced and more caution is warranted (highly, highly unlikely).  Perhaps our social, political, economic institutions are more fragile than they appear and could be easily undone by a few refugee terrorists.  Any of those factors being true could tilt the cost-benefits scales against admitting Syrian refugee but such dire predictions are currently unwarranted and must be weighed against the costs of not admitting Syrian refugees. 

Unforeseen Costs of Barring Refugees

There are costs to current Americans of not granting entry to some Syrian refugees.  Barring their admission could create a greater security risk in the future.  Refugees who languish in refugee camps for years or decades are more likely to be radicalized and become terrorists.  Under such a situation, allowing them to resettle in the United States could drain the swamp and decrease the fecundity of terrorist breeding grounds.

Refugees going to other countries, like Sweden, often settle in horrid welfare-subsidized situations in over-regulated labor markets where their LFPRs are initially less than half those of natives – producing another fertile breeding ground for violence.  Their LFPRs do increase over time but do not converge with natives.  Allowing many of those refugees to instead settle in the United States where they are about as active in the labor market as native born Americans and usually build themselves out of poverty without much welfare would also decrease the long term global terrorism risk. 

Syrian refugees could also be valuable foreign intelligence assets, just like many Hungarian, Vietnamese, and Cuban refugees were during the Cold War.  As my colleague Patrick Eddington noted, refugees should be especially motivated to help contain ISIS.  More accurate intelligence decreases the risks of future terrorist attacks, all else being equal.

Other Policy Changes to Further Reduce the Risks

If the refugee gate is widened, other policy changes can reduce the risk of violent extremism now and in the future as well as the short-term fiscal costs that turn net-positive after 10 to 15 years.  Cutting off government welfare benefits for refugees will decrease the public expense and incentivize economic self-sufficiency, self-confidence, and decrease alienation – all character-attributes correlated with terrorism.  Allowing private sponsorship of refugees is another way to decrease the public risk by outsourcing the monitoring of refugee integration to committed NGOs and individuals spending their own money.  Canada has successfully used this strategy and some Senators are now interested.      

Not overreacting to small terrorism risks would aid in the assimilation of immigrants with the same religious background. 

Conclusion

The precautionary principle emphasizes the “better safe than sorry” mentality but shelters us from the reality that nothing is absolutely safe.  Risk is on a spectrum, it is not binary.  The fear of high risks and uncertainty should not stop the resettlement of Syrian refugees here, only if a realistic projection that the long term harms would exceed the long term benefits should convince the government to further block Syrian refugees.  A cold, hard look at the risks and benefits of allowing more Syrian refugees favors a more open policy.

The National Conference of State Legislatures recently held a briefing on REAL ID, the U.S. national ID law, for state legislators that is both fascinating and strange. It is fascinating to see Department of Homeland Security officials prevaricate so openly before state officials about what this national ID law does. And it is strange to see the National Conference of State Legislatures, a group that nominally represents the interests of states, working with the federal government to erode state power.

DHS officials evidently see it as a priority to avoid the impression that REAL ID compliance creates a national identification system. DHS’s PowerPoint presentation to NCSL, echoed in the oral briefing, insists that REAL ID “[d]oes not create a national ID card, a Federal database of driver information, or new Federal access to state data.”

It’s true that the REAL ID law doesn’t require states to hand driver data over to the federal government in bulk. (The E-Verify RIDE program is for that.) But states will probably not be able to refuse a bulk information sharing requirement if and when the DHS creates a policy giving itself access. But score that part of this statement as accurate for now.

The question of a national database I addressed a few weeks ago in response to an inaccurate DHS “rumor control” web page. There is absolutely a national database system, equivalent to a single, centralized database, and it is required by the REAL ID law. Perhaps DHS’s briefers used the word “federal” to mislead the NCSL audience. The database system that REAL ID demands of states would be operated by states and the American Association of Motor Vehicle Administrators at the federal government’s behest. That’s not a “federal” database, technically, because it is owned and managed by states and the umbrella organization for departments of motor vehicles. But is surely a database run for the federal government and federal purposes. It’s clever phrasing that would tend to mislead the NCSL audience on this topic.

Finally, there’s the question of a national ID card. I know of no argument—much less a good one—that REAL ID doesn’t create a national ID. There is only bald insistence. As I’ve noted many times before, having written the book on the matter, a national ID card or system has three elements: First, it is national. That is, it is intended to be used throughout the country, and to be nationally uniform in its key elements. REAL ID is exactly that. Second, its possession or use is either practically or legally required. In fairness, for most people, a driver’s license or state-issued ID is practically required. And finally, it is used for identification. Case closed.

But DHS insists that REAL ID is not a national ID.

Now to the strange part. NCSL—the National Conference of State Legislatures—calls itself “the champion of state legislatures.” But REAL ID compliance means as a practical matter that states sign off forever on their authority over driver licensing. Once DHS locks states in, they are not going to get out.

You would think that reducing state government power is something NCSL would resist, but here they are, helping the DHS coax states into abandoning yet more authority to the federal government. I don’t know if state legislators value administering federal programs, or if they generally feel like that is what they seek office to do. I suspect they don’t. But here is a group purporting to represent them feeding them information that makes them less powerful and less important.

Yes, there’s a prevarification available to the DHS in this area, too. The law allow states a choice as to whether to comply with REAL ID. It merely threatens to deprive their residents of the right to travel by refusing their IDs at airports. That is the same choice offered by a mugger: Your money or your life. It’s not the kind of choice a “champion” of state legislatures should probably subject them to.

NCSL’s REAL ID web page could make clear to state legislators that by hanging together, they can back the Department of Homeland Security down. As it has recently done again, DHS will back down every time one of its manufactured deadlines arrives, if states decline to comply. The long game DHS is playing—successfully—is to frighten state legislators every few years to get a little more compliance in a few more places. Thanks, but no thanks, NCSL, for helping the federal government undercut state power and implement a national ID system.

With the passage of the Twenty-first Amendment in 1933, the United States enacted Repeal and abandoned its failed experiment with Prohibition. And that settled that, right? At least until this week:

Women of childbearing age should avoid alcohol unless they’re using contraception, federal health officials said Tuesday, in a move to reduce the number of babies born with fetal alcohol syndrome.

“Alcohol can permanently harm a developing baby before a woman knows she is pregnant,” said Anne Schuchat, principal deputy director of the Centers for Disease Control and Prevention. “About half of all pregnancies in the United States are unplanned, and even if planned, most women won’t know they are pregnant for the first month or so, when they might still be drinking.

And more (emphasis added): 

Further, the report states that because half of all pregnancies in the United States are unplanned, it’s risky for women to drink any amount at any time during which she may intentionally or unintentionally become pregnant.

Early reactions often involved shock (“incredibly condescending,” wrote the Washington Post’s Alexandra Petri) and bewilderment at the seeming creation of a new class of women who were not to be trusted with making their own choices, namely the “pre-pregnant.” Rebecca Kukla, a professor at the Kennedy Institute of Ethics, took issue with the dictate even as regards women who definitely are pregnant:

“We don’t tell pregnant women not to drive cars, even though we are much more certain that there’s a nonzero risk to their fetuses from each car ride than from each drink,” she said. “The ideal of zero risk is both impossible to meet and completely paralyzing to try to meet.”

Kukla argues that such guidelines are also excessively punishing. “The idea that the pleasures and routines that make up women’s days are mere luxuries that are not worth any risk whatsoever is patronizing and sexist,” she said. “And it would also turn their lives into complete hell if really taken to [its] conclusions.”

And yet I would have expected no less from a CDC headed by Thomas Frieden, formerly Mayor Michael Bloomberg’s public health czar in New York City. Under Frieden, an arch-enemy of salt, sugar, and guns, the CDC to the detriment of its focus on communicable disease has involved itself in topics from playground safety to suburban housing sprawl; has boldly employed federal tax dollars toward lobbying for changes in law; has set itself against all evidence that e-cigarettes (“vaping”) can serve as vital harm reduction for persons who would otherwise smoke; and much, much more. 

Beverage consumption for adult women, as for men, is best governed by a course of prudence and moderation. The best course of prudence and moderation for the federal CDC would be a future without Thomas Frieden

Pessimism about potentially life-enhancing technologies is not new. The Twitter account Pessimist’s Archive (a favorite of the internet guru Marc Andreessen) chronicles the unending stream of pessimism with old newspaper excerpts. 

Pessimistic reactions range from merely doubtful (such as this response to the idea of gas lighting in 1809, or this one to the concept of anesthesia in 1839) to outright alarmist (such as this 1999 warning that e-commerce “threatens to destroy more than it could ever create”). 

In some cases, the pessimists insist that an older technology is superior to a new one. Some, for example, have claimed that an abacus is superior to a computer and a pocket calculator, while others claimed that horses are longer-lasting than the dangerous “automobile terror.” 

Others argue that new technology is damaging existing businesses and customs. One particularly emotional 1918 article described how automobiles are destroying the livery stable business and, together with “the movie show,” changing dating forever by ending the tradition of romantic carriage rides. 

Another frequent complaint is that new technology exacerbates inequality, because the wealthy tend to adopt new technologies first. One article from 1914, for example, laments that “wireless telephones” will only ever “be a boon to privileged persons.” The article was referring to the early wireless radiotelephones being developed at that time, which were not lightweight handheld devices. Today, of course, wireless phones can fit in your pocket, have many more capabilities, and are ubiquitous. Eventually, the free market tends to drive down the cost of technologies, making them accessible to more people. 

Perhaps what is most remarkable about pessimistic responses to new technology is how often the pessimists successfully use the power of the state to try to halt technological progress. 

In the 1930s, pessimists feared that radios were a threat to democracy and worried that the devices were ruining childhood. By 1936, the pessimists had succeeded at banning radios in cars in a number of U.S. cities, arguing that they were distracting and might prevent drivers from hearing fire engine sirens. 

Sadly, techno-pessimists have managed to enact bans or partial bans on a great variety of technologies. These include “horseless carriages” (cars), “automatic lifts” (elevators), and bicycles (which are “the most dangerous thing to life and property ever invented” according to an 1881 New York Times article). The list also includes, more recently, video gamesheadphones, and hover-boards. 

As new breakthroughs continue to occur practically every day, looking back at how people decried and fought against progress in the past helps put current technological and scientific debates in perspective.

The leaders of the Army and Marine Corps made headlines Wednesday when they called for expanding the Selective Service System to include women.

In response to a question by Sen. Claire McCaskill (D-Mo.), Gen. Mark A. Milley, chief of staff of the Army, stated “I think that all eligible and qualified men and women should register for the draft.” Milley’s counterpart, Marine Corps commandant Gen. Robert B. Neller, said after a hearing of the Senate Armed Services Committee that registration was a step that any young American must take on the way to adulthood. All U.S. citizens should be included, Neller said, “now that the restrictions that exempted women from [combat jobs] don’t exist.” He continued, “It doesn’t mean you’re going to serve, but you go register.”

The logic seems unassailable. If the military no longer discriminates against women who are qualified to serve, why should registration be limited only to men? And if the law remains unchanged, and compels only men to sign up, it will only be a matter of time before an equal protection challenge is brought before the courts. 

Over at the Washington Post Online, I suggest a different idea: rather than requiring women to register for the draft, let’s do away with Selective Service altogether, for women and men.

The entire architecture of the conscripted military is anachronistic and unnecessary. We’ve operated with an all-volunteer force for decades, and no one, regardless of gender, expects that they’ll be drafted. Meanwhile, the wars that we actually fight don’t depend upon conscription, and future wars aren’t likely to, either.

I go a bit into the history of the draft, but point out that the main reason why mass conscription didn’t remain in place after the end of World War II was because it wasn’t necessary. The wars in Korea and Vietnam didn’t call for more than 10 million men to fight them. The Selective Service System was open to criticism for being unfair, especially as the number of deferments expanded during the Vietnam War, but the alternative – universal military training – would have been worse: compelling millions of men into a military that didn’t want them or need them.

I’ve heard the other arguments for a return to conscription, but none are compelling, and any possible benefits are offset by the costs.

For example:

a draft would likely reduce the military’s fighting effectiveness. Today’s force is uniquely capable precisely because it is comprised entirely of volunteers, men and women who choose to join the military for a variety of reasons, including the desire to serve their country, but also because of the exceptional opportunities and benefits available to those in uniform. Overall compensation for troops is more than competitive relative to their comparably skilled peers, and Americans are willing to invest in their professional development because we are confident that many of them will remain in service long enough for our investment to be worthwhile. By contrast, draftees of the ’40s, ’50s and ’60s weren’t expected to stick around after their obligation expired, and thus received minimal training. A conscripted military might be larger, but it wouldn’t be better.

As for the claim that the all-volunteer army explains Washington’s greater propensity to go to war, and that a draft would make lawmakers actually think before starting them, I point out that this ignores the very few protracted ground wars fought in the first 16 years of the post-conscription era (none, by my count), and likewise cannot explain why other countries around the world with volunteer militaries are far less war-prone than we are. 

It isn’t even obvious to me that the draft was the decisive factor in ending the U.S. war in Vietnam: 

It may be true that self interest drove some men with other priorities to oppose that war, and that the draft, therefore, helped hasten the war’s end. On the other hand, the existence of a draft actually made it easier for President Lyndon Johnson to dramatically increase the size of the U.S. ground commitment in Vietnam with little public debate. The protests came too late to prevent more than 58,000 names from being carved into that memorial on the Mall.

In the highly unlikely event that we ever again needed a mass-conscripted army to defend the United States, Congress could pass a law to reconstitute the Selective Service System. But the sensible course right now is to stop requiring men (or women) to register for the draft. 

You can read the whole thing here.

Yesterday, Senator Rob Portman (R-OH), a former U.S. Trade Representative during the George W. Bush administration, announced his opposition to the Trans-Pacific Partnership. 

According to Reuters:

Portman, from Ohio, said the Pacific trade deal fails to meet the needs of his state’s workers because it lacks an enforceable provision to fight currency manipulation and because of new, less-stringent country-of-origin rules for auto parts.

“I cannot support the TPP in its current form because it doesn’t provide that level playing field,” Portman said in a statement.

The announcement is significant because passage of the TPP will rely on broad Republican support and because Senator Portman’s credentials (as former USTR and member of the Senate Finance Committee who represents a traditionally trade-skeptic region of the country) have earned him a prominent voice on trade policy in Washington.

The announcement is also noteworthy because the rhetoric and reasons the Senator used to support his opposition are completely at odds with his strong voting record on trade in Congress.  According to Cato’s online trade votes database, Senator Portman is a solid “Free Trader

The Senator’s antagonistic position on the TPP is almost certainly related to the fact that he is up for reelection this year.  Ohio is well-known hotbed for trade restrictionist sentiment.  Portman’s fellow Senator is Democrat Sherrod Brown, one of the most active advocates for interventionist trade policy in Congress today.  The current governor of Ohio is Republican presidential candidate John Kasich, who recently spoke about the importance of antidumping tariffs to help the steel industry.  In short, Portman faces political realities that limit his ability to support economically-sound trade policy.   

Other Republicans who have come out against the TPP have largely justified their opposition through reasons unrelated to the value of free trade.  They have relied on partisan distrust of Obama, vague constitutional objections to fast track, or conspiracy theories related to immigration. 

Portman, on the other hand, has gone full protectionist.  His concern for foreign currency manipulation and rules of origin reveal a close relationship between his position on trade and the interests of Detroit automakers. 

Rules of origin lay out how much of a product’s content or value must be produced within TPP countries for that product to qualify for tariff-free treatment under the agreement.  Liberal rules of origin are generally controversial (among people who don’t understand the benefits of unilateral free trade) because they allow other countries (China) to benefit from trade liberalization without making commitments of their own.

Strict rules of origin, however, make preferential trade agreements like the TPP less valuable economically by restricting the development of global supply chains.  Rules of origin are also an excellent opportunity for rent-seeking by industries that want the agreement to privilege their supply chain arrangement over those of their competitors.  Specifically, strict rules of origin in the TPP will impose a greater burden on Japanese automakers than on Detroit automakers.

It’s easy to blame local politics for a politician’s unprincipled stances on trade.  But Portman’s awful rhetoric reveals an inability to make a compelling case for good economic policy or an honest adherence to illiberal economic ideology.  Explaining his opposition to the TPP on purely protectionist grounds represents a missed opportunity to say correct things about the value of trade. 

The decline in U.S. manufacturing employment is part of our development into a wealthier, service-oriented economy.  It is progress.  Senator Portman’s pandering to protectionists won’t bring manufacturing jobs back to Ohio, but it will contribute to the efforts of special interests to keep prices high for consumers and reduce economic growth by limiting our freedom to trade in an open, global economy.

Over at Cato’s Police Misconduct web site, we have identified the worst case for the month of January.  It was the case from Suffolk County, New York, involving now former police officer, Scott Greene.  He was convicted of repeated instances of theft.

According to the evidence introduced at the trial, Greene would target Hispanic drivers, pull them over, order them to surrender their wallets, or invent a reason to search their vehicles and then steal cash located inside.  By stealing from persons he thought were illegal immigrants, Greene thought his victims would not come forward to file any complaint.  And he would enrich himself by using his police powers.  Prosecutor Tom Spota called Greene a “thief with a badge” and says he will be seeking the maximum possible prison sentence–about four years.

Alas, there are problems in the Suffolk department even beyond Greene.  The recently departed chief, James Burke, has been indicted for abusing a suspect and then coercing his subordinate officers to cover up his crime.  Local community activists say the department is so corrupt that they want a federal takeover.  Stay tuned about that.

A new health club opened in my neighborhood recently and I told my wife I wanted to join it. She agreed, providing that I gave up something we were spending elsewhere to pay for the $1,200 annual membership.  I don’t want to give up anything fun so I decided to adopt the Congressional approach to budgeting to achieve such savings.  It turned out to be a snap.

The first thing I did was claim $150 in credit from a restaurant app I use called Open Table.  Each time I use the app to reserve a table it gives me the equivalent of $1 towards a future meal.  Since I got the app five years ago I’ve never gotten around to using these, but now seems a propitious time.

Next, I let our discount deals expire with the cable company and the newspaper. Each has a base price it offers subscribers, but if I call and threaten to stop my subscription they give me the discount for new subscribers. So I let each expire for a week and then called to get the new subscriber deal again. Together, that saved me $850.

I was still a bit short, but then I got an unexpected $200 check from a friend that owed me for tickets I got us for a visit to Wrigley Field last Summer.  I had written off the money off-my friend was jobless at the time–so it represented a genuine windfall.

I presented these “savings” to my wife and she was not at all amused. She agreed to give me credit for this, albeit grudgingly, but that I had to come up with enough savings in 2016 to cover a membership for her as well. I looked up and down our credit card bill and saw an obvious way to save money–our health insurance bill.

I wasn’t going to not pay the thing, of course, but in my game of Congressional cost-saving I didn’t need to do such a thing. I merely called the insurance company, told them that my paychecks were now arriving on the 15th instead of the 1st and asked if I could have my monthly payments pushed back two weeks. After a few minutes on hold they agreed.

This meant that I would now have only 11 insurance payments in the next 12 months instead of 12, saving me $1500 in the next year. Mission accomplished.

As you might have surmised, my wife wasn’t amused, and as of now I’m still working out in my old gym, which doesn’t have a towel service, a juice bar, or even hot water and clean showers most of the time.

The ease with which I can manipulate such a fictional budget constraint when it comes to our own household account is no different from Congress.  Its PAYGO rules are incredibly malleable and the notion that it prevents Congress from spending recklessly is a foolish supposition.

The recent legislation that took a lot of “temporary” tax breaks–many of which are salutary–and made them permanent by merely waiving PAYGO for the bill–is a prime example of its inefficacy.

For the last decade, Congress has come up with increasingly convoluted and dubious paygos to cover the cost of extending these another year.  Paygo was the reason that they were never made permanent, a situation that made no economic sense at all.  It was only when Congress had exhausted all potential paygos that they gave up the ghost and twisted enough arms and legs to make them permanent.

The lesson for small-government advocates is that budget rules guarantee nothing.  A forthcoming Federal Reserve working paper looks at Colorado’s TABOR (which holds annual spending increases to the combined rate of inflation and population growth), widely hailed by conservatives as being the gold standard when it comes to governmental budget rules, and concludes that it did close to nothing to rein spending.  Colorado’s spending history looks no different than other, similar states.

Rules don’t work because nothing can prevent a future Congress from unmaking the rules set forth by the current Congress, there are myriad ways to game any such system, and–most importantly–the biggest ticking budgetary time bomb out there are the entitlement programs that seemingly escape scrutiny in either Congress, or at least the budget rules.  Entitlement spending will go up by over half a trillion dollars a year in the next five years and no mere budget rule can arrest this growth.

The answer is–and always will be–that to keep spending low we need help people understand the true cost of government largesse.  It’s a task that’s easier said than done. 

A new investigation by ABC7/WJLA reporter Chris Papst highlights data on the number of federal civilian workers earning more than $100,000 in annual wages. Using data from the Office of Personnel Management, Papst reports:

… last year the number of federal employees making more than $100,000 topped 500,000 for the first time. That’s 25 percent of the entire federal workforce of roughly 2.1 million. In the last 15 years, the number of federal workers making $100,000 increased from 66,116 to 509,025, a nearly 800 percent increase.

The chart below shows Papst’s data. The number of high-paid federal workers soared during the 2000s, but has grown more slowly in recent years. There is stark contrast between the George W. Bush years and the Barack Obama years. The number of federal workers earning more than $100,000 more than quadrupled under Bush (83,532 in 2001 to 389,828 in 2009), but has risen 31 percent since 2009 (to reach 509,025 by 2015).

What explains the spendthrift record of Bush and the more frugal record of Obama? Partly, Bush wanted large pay increases for the uniformed military, and to gain support he agreed to large increases for the civilian workforce. Partly, the new pay system in place for the Pentagon in the later Bush years inflated civilian Pentagon pay, as described by Dennis Cauchon. And partly, the Obama frugality was the result of a three-year partial pay freeze backed by the Republicans and approved by the president.

 

For more on federal pay, see DownsizingGovernment.org.

Data note: figure for 2002 in chart is estimated.

This week, the House Committee on Education and the Workforce held a hearing on “Expanding Education Opportunity through School Choice.” As I’ve written before, there are lots of great reasons to support school choice policies, but Congress should not create a national voucher program:

It is very likely that a federal voucher program would lead to increased federal regulation of private schools over time. Once private schools become dependent on federal money, the vast majority is likely to accept the new regulations rather than forgo the funding.

When a state adopts regulations that undermine its school choice program, it’s lamentable but at least the ill effects are localized. Other states are free to chart a different course. However, if the federal government regulates a national school choice program, there is no escape. Moreover, state governments are more responsive to citizens than the distant federal bureaucracy. Citizens have a better shot at blocking or reversing harmful regulations at the state and local level rather than the federal level.

That said, there’s at least one area where Congress both has the authority to act and can do a lot of good: Washington, D.C.

Despite spending close to $30,000 per pupil, D.C.’s public schools are ranked among the worst in the nation, and it’s the students from the poorest households who are assigned to the worst schools:

In nearly all D.C. neighborhoods where the median three-bedroom home costs $460,000 or less, the percentage of students at the zoned public school scoring proficient or advanced in reading was less than 45 percent. Children from families that could only afford homes under $300,000 are almost entirely assigned to the worst-performing schools in the District, in which math and reading proficiency rates are in the teens.

Ideally, Congress would enact a universal education savings account program, similar to the one that Sen. Ted Cruz is proposing. At the very least, Congress should work to reauthorize the D.C. Opportunity Scholarship Program (OSP) that is set to expire this year. At about $9,000 each, OSP vouchers cost taxpayers a fraction of what it costs per pupil at the public schools yet a random-assignment study found that OSP students were 21 percentage points more likely to graduate from high school than the control group. Moreover, researchers Patrick Wolf and Michael McShane calculated that the total benefits to the taxpayer are even greater than the immediate savings: 

Because a high-school diploma makes an individual less likely to commit crimes, it therefore decreases both the costs incurred by victims of crimes and those borne by the public in administering the justice system. Coupled with the increased tax revenue made on the increased income, this yields an extra benefit for society of over $87,000 per high-school graduate.

Multiplying the number of additional graduates by the value of a high-school diploma yields a total benefit of over $183 million. Over the time of our study, the OSP cost taxpayers $70 million, so dividing the benefits by the cost yields an overall benefit-to-cost ratio of 2.62, or $2.62 for every dollar that was spent.

Sadly, the OSP is threatened by the Obama administration’s war on school choice:

Since coming into power, the administration has actively opposed policies that empower low-income minorities to enroll their children in the schools of their choice. Obama’s proposed budgets repeatedly zeroed out funding for the Washington, D.C., Opportunity Scholarship Program… Last year, more than 95 percent of the D.C. voucher recipients were black or Hispanic.

The program survived only because of its champions in Congress, particularly former House speaker John Boehner, who ensured that the program would continue to receive funding. However, the program is set to expire later this year, and while the latest omnibus bill funds it for fiscal year 2016, it failed to reauthorize the program, spurring the Wall Street Journal in December to wonder “how Nancy Pelosi prevailed despite Republican majorities in both houses.”

Even though he was a scholarship student who now sends his own children to private school, it’s unlikely President Obama will sign any legislation creating new school choice options in his final year in office. If federal lawmakers are serious about expanding school choice, they should make reauthorizing the OSP a top priority.

To learn more about the impact of the D.C. Opportunity Scholarship Program and the Obama administration’s efforts to shut it down, watch this short documentary from Reason Magazine

Bryana Bible defaulted on her student loans. Upon her default, the guarantor of her loans, United Student Aid (USA) Funds, paid the default claim and took over the loan. Bible and USA Funds agreed to a $50-a-month repayment plan. Per the applicable Higher Education Act and Department of Education regulations, however, the agreement included a collection fee of 18.5% of the unpaid loan balance.

Bible balked at this fee and filed a class action against USA Funds, alleging that the company violated both the terms of the promissory note and the federal Racketeer Influenced Corrupt Organizations Act (!). The district court agreed with USA Funds because both the law and applicable regulations allowed for exactly that fee to be imposed. But when the case got to the appellate stage, it went off the rails.

The Seventh Circuit panel fractured, with one judge considering the regulatory text unambiguously permitting the fee, one judge considering the regulatory text unambiguously prohibiting the fee, and one just finding the regulations altogether ambiguous. The judges decided to resolve the case by deferring to the Department of Education’s opinion on the matter.

The Secretary of Education filed an amicus curiae brief, siding with Bible—which contradicted both the agency’s previous regulations and the statute’s express terms. Still, because the Secretary’s brief offered novel interpretative guidance, the court was forced to defer to the agency’s interpretation of its own guidance under a rule called Auer (or Seminole Rock)deference—a doctrine requiring courts to defer to agencies’ interpretation of their own guidance unless plainly erroneous or inconsistent with the regulation—instead of hazarding its own interpretation.

USA Funds has asked the Supreme Court to clean up this mess. Cato has joined the American Action Forum and Judicial Education Project on a brief urging the Court to take up the case and overrule both Auer v. Robbins (1997)and Bowles v. Seminole Rock & Sand Co. (1945).

Auer deference is simply outdated—and was superseded by statute from its inception. In 1946, one year after the Court decided Seminole Rock, Congress passed the Administrative Procedures Act (APA). The APA distinguished between legislative and interpretative rules. Legislative rules are subject to notice-and-comment practice but interpretative rules are not. Accordingly, judicial deference to a rule that results from an open notice-and-comment procedure may be justifiable, while deference to an interpretative rule—like the one at issue here—which is not subject to such a process, is inappropriate.

The text, history, and structure of the APA confirm this reading. Indeed, Auer deference subverts the APA’s purpose and immunizes the least politically accountable agency action from meaningful judicial review.

Moreover, even if the Court decided to apply Auer deference rather than overruling it, the Education Secretary’s guidance plainly fails the Auer test because it’s “plainly erroneous or inconsistent with the regulation.” The Department of Education in 1994 – under President Clinton – issued interpretative guidance stating that collection fees like the one here are not only permissible but “reasonable” under the very same regulation that it now interprets to bar them.

Taking a step back, Auer deference has become increasingly unpopular in legal circles because its invocation is now a too-frequent occurrence that shuts down jurisprudence. Justices Scalia, Thomas, and Alito have written several opinions in the last decade indicating that they wish to overturn Auer. USA Funds v. Bible presents a perfect case for the Court to do so, thus restoring a measure of reasonableness and accountability to the administrative state.

While Cato believes that same-sex couples ought to be able to get marriage licenses (if the state is involved in marriage in the first place), a commitment to equality under the law can’t justify the restriction of private parties’ constitutionally protected rights like freedom of speech or association.

Arlene’s Flowers, a flower shop in Richland, Washington, declined to provide the floral arrangements for the same-sex wedding of Robert Ingersoll and Curt Freed. Mr. Ingersoll was a long-time customer of Arlene’s Flowers and the shop’s owner Barronelle Stutzman considered him a friend. But when he asked her to use her artistic abilities to beautify his ceremony, Mrs. Stutzman felt that her Christian convictions compelled her to decline. She gently explained why she could not do what he asked, and Mr. Ingersoll seemed to understand.

Later, however, he and his now-husband, and ultimately the state of Washington, sued Mrs. Stutzman for violating the state’s laws prohibiting discrimination in public accommodations. The trial court ruled against Arlene’s Flowers and the case is now on appeal.

Cato has filed an amicus brief supporting Arlene’s Flowers and Mrs. Stutzman, urging Washington’s highest court to reverse the trial court’s decision. Although floristry may not initially appear to be speech to some, it’s a form of artistic expression that’s constitutionally protected. There are numerous floristry schools throughout the world that teach students how to express themselves through their work, and even the Arts Council of Great Britain has recognized the significance of the Royal Horticultural Society’s library, which documents the history, art, and writing of gardening.

The U.S. Supreme Court has long recognized that the First Amendment protects artistic as well as verbal expression, and that protection should likewise extend to floristry—even if it’s not ideological and even if it’s done for commercial purposes. The Supreme Court declared more than 70 years ago that “[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.” West Virginia Board of Education v. Barnette (1943). And the Court ruled in Wooley v. Maynard—the 1977 “Live Free or Die” license-plate case out of New Hampshire—that forcing people to speak is just as unconstitutional as preventing or censoring speech.

The First Amendment “includes both the right to speak freely and the right to refrain from speaking at all” and the Supreme Court has never held that the compelled-speech doctrine is only applicable when an individual is forced to serve as a courier for the message of another (as in Wooley). Instead, the justices have said repeatedly that what the First Amendment protects is a “freedom of the individual mind,” which the government violates whenever it tells a person what she must or must not say.

Forcing a florist to create a unique piece of art violates that freedom of mind. Moreover, unlike true cases of public accommodation, there are abundant opportunities to choose other florists in the same area.

Finally, granting First Amendment protection to florists would not mean that public-accommodation laws could provide no protection to same-sex couples. The First Amendment protects expression, which should include floristry but would not include many other wedding-related businesses like caterers, hotels, and limousine drivers who are not in the business of creating artistic expression. These sorts of businesses may have other defenses available, constitutional or statutory, but that’s a different legal matter. 

The Washington Supreme Court (“SCOWA”) will hear oral argument in Arlene’s Flowers v. Washington in late winter or early spring. Whichever side loses there will likely petition the U.S. Supreme Court for cert – unless the state loses on a state-law ground, in which case there will likely be no basis for federal review.

On February 18th at noon, Cato will be hosting a book forum with Columbia University professor Michael Doyle on his new book The Question of Intervention: John Stuart Mill and the Responsibility to Protect.  The forum will include a presentation of Doyle’s conception of the key standards that should guide decisions to intervene militarily abroad, followed by responses from two distinguished discussants—Anne-Marie Slaughter (President and CEO of New America, and former director of the State Department Policy Planning Staff), and Christopher Preble (Executive Vice President for Defense and Foreign Policy Studies, Cato Institute). 

In light of the persistent calls for the United States to intervene in trouble spots around the world, this event will provide an illuminating discussion of the circumstances in which moral and security considerations supersede the norm of state sovereignty and justify foreign intervention.  To register for the event, click here.

After a short pause over the holidays, here is a new installment in the HP series on technological breakthroughs. This time, we look at improvements in agriculture, and the fight against schizophrenia, aging and diabetes.    New robotic farm will harvest 30,000 heads of lettuce daily.    The world’s first completely robotic farm is in the works in Japan. Developed by a company called Spread, the farm will be able to harvest crops at greater quantities than before. The indoor farm already uses LED light instead of natural sunlight and stores the growing plants on vertical racks, allowing crop growth to be more easily controlled and more productive. With full automation, the farm will increase its lettuce production to 30,000 heads per day. The state-of-the-art facility also will provide environmental benefits such as recycling used water and greatly reduced labor costs. Spread hopes to export its technology around the world in the near future.      A new study released by the Broad Institute of MIT has found new links between brain development during adolescence and schizophrenia. The researchers focused in on a gene called component 4 (C4), which is found in the immune system. They examined 100,000 human DNA samples from 30 countries. When C4 is prominently expressed in the genetic code, people have a higher risk of developing schizophrenia. Additional analyses of mice found that C4 plays a role in closing off synapses in the brain. This process emerges during adolescence and opens exciting new avenues for additional research.     A cure for aging?   A competition in Silicon Valley is underway inspiring innovators in medicine to discover a way to reduce the effects of aging. The Palo Alto Longevity Prize awards $1 million in prizes to researchers who can find a way to reduce the effects of aging and disease. But, the goal of the competition is not just to find a way to allow individuals to live longer, but also to raise their quality of life by reducing the impact of age-related diseases such as Alzheimer’s and cancer. The body has a natural state of rest, called homeostasis, which it returns to after recovering from sickness or trauma. In a person’s early life, it is relatively easy for their body to return back to that state after getting a cold or breaking a bone. But after the age of 40, it becomes much harder for that person’s body to get back in sync.   ‘Cure’ for Type 1 diabetes close.    Scientists at Harvard and MIT have found a way to provide long-term treatment for Type 1 diabetes. Tests in animals have been so far successful. Through embryonic stem-cell research, the team found a way for cells to detect glucose levels and adjust insulin levels accordingly throughout the body. The breakthrough would effectively eliminate reliance on insulin injections for several years at a time and reduce the risks that come from Type 1 if an injection is missed or a sudden spike in blood-sugar occurs. The disease afflicts millions of individuals across the world, including 400,000 in Britain alone, according to The Telegraph. Those with Type 1 diabetes must check their blood sugar levels and take insulin injections daily in order to live with the disease. 

Ever wonder about the neutrality (or lack thereof) of scientists investigating the subject of global warming? Does it seem that far too many of them eagerly sound alarm bells when it comes to documenting and communicating the potential consequences of human-induced climate change to the public? Well, that little voice inside your head telling you something is awry appears to be vindicated based on new research published in the journal Public Understanding of Science.

In an article that is both enlightening and damning at the same time, Senja Post (2016) set out to investigate the “ideals and practices” of German scientists in communicating climate change research findings to the public. Post accomplished her objective by conducting and analyzing a representative survey of German scientists holding the academic rank of full professor and who were actively engaged in climate change research. Altogether, 300 such scientists were identified and invited to participate in her survey, and 42 percent of them responded with a completed questionnaire in which they were queried about “various aspects of climate change, their attitudes toward publicly communicating scientific uncertainty, and their media relations.”

According to Post, the results of her survey indicated that “the more climate scientists are engaged with the media the less they intend to point out uncertainties about climate change and the more unambiguously they confirm the publicly held convictions that it is man-made, historically unique, dangerous and calculable.” Similarly, the more scientists were convinced of the alarmist narrative that rising atmospheric CO2 is causing dangerous climate change, the more they worked with the media to disseminate that narrative. Post’s survey also revealed that “climate scientists object to publishing a result in the media significantly more when it indicates that climate change proceeds more slowly rather than faster than expected,” which finding, in her words, “gives reason to assume that the German climate scientists are more inclined to communicate their results in public when they confirm rather than contradict that climate change is dramatic.”

Such findings are saddening and shameful, highlighting a near-ubiquitous bias among climate scientists (at least in Germany) who willfully suppress the communication of research findings and uncertainties to the public when they do not support the alarmist narrative of CO2-induced global warming. Such deceit has no place in science.

 

Reference

Post, S. 2016. Communicating science in public controversies: Strategic considerations of the German climate scientists. Public Understanding of Science 25: 61-70.

The Constitution has gotten short shrift in the ongoing presidential debates, save for an occasional mention by Rand Paul. Now that he’s out of the race, Politico reports this morning, in a piece entitled “Ted Cruz, born-again libertarian,” that Cruz is scrambling for Paul’s supporters, claiming that he’s the one remaining “constitutional conservative.” That’s rich, and here’s why.

If there is any test of libertarian constitutionalism, it concerns the proper role of the courts in limiting legislative and executive excesses, federal, state, and local. Even many conservatives today are rethinking their earlier views and arguing now that courts need to be more engaged in the business of limiting government and preserving liberty. And no Supreme Court decision in our history more symbolizes the divide between the earlier conservatives and the libertarians who’ve gradually brought this re-thinking about than Lochner v. New York, where the Court in 1905 struck down an economic regulation because it violated the right to liberty of contract protected by the 14th Amendment.

And where does Ted Cruz stand on that? Here’s Damon Root writing yesterday about the Paul exit in Reason’s “Hit & Run” blog:

Ted Cruz, meanwhile, stands in direct opposition to the libertarian legal movement on the central issue of economic liberties and the Constitution. For example, in July 2015 Cruz attacked the Supreme Court’s Lochner decision as a regrettable example of the Court’s “imperial tendencies” and “long descent into lawlessness.”

Unfortunately for Cruz, he undercut his own position in that speech by mangling the facts of Lochner, which he incorrectly described (while reading from a prepared text) as a case where “an activist Court struck down minimum wage laws” on behalf of an individual right “that has no basis in the language of the Constitution.” (Cruz’s opposition to Lochner also happens to be indistinguishable from Barack Obama’s negative view of the case.)

In reality, Lochner was not a minimum wage case at all; it was a maximum working hours case, plain and simple. What’s more, there is significant historical evidence showing that the individual right at issue in Lochner—liberty of contract—is deeply rooted in the text and history of the 14th Amendment.

Ted Cruz may be a “constitutional conservative” in the old and, increasingly, passing sense, but he’s hardly heir to those Rand Paul supporters who take the Constitution seriously. If his views on Lochner are any indication, he’d be more comfortable with the deferential Court that has left Obamacare largely intact. At the least, he needs to bone up on his constitutional theory and history.

Last year I referred readers to the abuse of civil asset forfeiture laws by the IRS in its attempt to take more than $107,000 from North Carolina small business owner Lyndon McLellan without charging him with any crime.

The IRS cleaned out Mr. McLellan’s business account because it suspected him of “structuring,” an offense whereby a person avoids legally-mandated financial reporting requirements by keeping their deposits and withdrawals under $10,000.  Because there are many perfectly legitimate reasons a business owner may deposit less than $10,000 at a time (for instance, if their insurance policy only covers $10,000 cash on hand), and because civil asset forfeiture allows the government to seize cash and property without proving any wrongdoing, IRS structuring seizures are prone to abuse.

Tacitly recognizing the abuse allowed by the law, former Attorney General Eric Holder announced changes to the use of civil forfeiture in structuring offenses last year.  The policy changes should have spared innocent business owners like Lyndon McLellan, but it seems some federal prosecutors never got the memo.  In fact, the Assistant U.S. Attorney in charge of the case responded to criticism by sending veiled threats to Lyndon McLellan and his lawyers at the Institute for Justice, warning them against publicizing the case lest it “ratchet up feelings” in the IRS offices.

The publicity worked. After significant public and political pressure, the IRS relented and returned the amount they had taken from Mr. McLellan’s bank account. As I noted last year, however, the IRS refused to reimburse Mr. McLellan for the costs of fighting the seizure or to pay interest on the money it had wrongfully seized.

But this week a federal judge ruled that the IRS must do more to make Mr. McLellan whole, and awarded him legal costs totalling more than $20,000.

The court held:

Certainly, the damage inflicted upon an innocent person or business is immense when, although it has done nothing wrong, its money and property are seized. Congress, acknowledging the harsh realities of civil forfeiture practice, sought to lessen the blow to innocent citizens who have had their property stripped from them by the Government… . This court will not discard lightly the right of a citizen to seek the relief Congress has afforded.

Fortunately, thanks to the efforts of Mr. McLellan and the Institute for Justice, the good guys won this time. Ultimately, however, the only way to ensure that civil forfeiture abuses stop happening is to abolish civil forfeiture. If the government cannot prove beyond a reasonable doubt that a person engaged in criminal activity, it should not be able to punish them as if they’re guilty.  As long as Congress and state legislatures allow this practice to continue, more innocent Americans will end up fighting for their livelihoods like Lyndon McLellan had to.  

For the Institute for Justice page detailing Mr. McLellan’s case, click here.

For Cato’s explainer on the troubling history of civil asset forfeiture, click here.

The big trade news from yesterday was that government officials from the 12 nations negotiating the Trans Pacific Partnership traveled to New Zealand for the official signing ceremony. While the negotiators are no doubt relieved, and are looking forward to some time off, we now get to perhaps the most difficult part of the process: Seeing whether Congress will approve what the Obama administration negotiated.

Finding a way for different branches in a divided government to work together is never easy. This year you have Presidential elections thrown into the mix, which makes things even harder.

Senator Mitch McConnell is sounding pretty skeptical about holding a vote before the election, and maybe even after as well:

McConnell said his “advice” is that Congress not vote on TPP prior to the election in part because the two Democratic presidential candidates and several Republican candidates oppose the agreement.

With respect to a lame-duck vote, McConnell signaled it may not be fair to constituents to take a vote on a controversial issue such as trade after they cast their votes for who should represent them in Congress.

People are sometimes able to resolve their differences, and maybe there is some deal to be struck here. On the other hand, Senator McConnell feels pretty strongly about the “tobacco carveout” that was included in the TPP’s investment provisions. The Obama administration has used this carveout to generate TPP support from groups such as the Cancer Action Network, but it’s not clear that such support will lead to any Democratic votes for the TPP, whereas it clearly is affecting Republican views of the TPP.

So, the TPP has been signed, but it is not clear whether it can be sealed and delivered.  In fact, at this point, it seems very possible that whoever becomes President will want to take a fresh look at the terms. Hillary Clinton might want to see if it is “progressive” enough (the Obama administration keeps calling it the “most progressive trade agreement in history”); on the other side, Marco Rubio might want to make it a lot less progressive (e.g., by taking out the minimum wage provisions, and deleting the tobacco carveout).

I’ll close with a quote from Victoria Guida of Politico: “The future of the Trans-Pacific Partnership is as clear as mud … .” 

Remember peak oil? Remember when oil prices were $140 a barrel and Goldman Sachs predicted they would soon reach $200? Now, the latest news is that oil prices have gone up all the way to $34 a barrel. Last fall, Goldman Sachs predicted prices would fall to $20 a barrel, which other analysts argued was “no better than its prior predictions,” but in fact they came a lot closer to that than to $200.

Low oil prices generate huge economic benefits. Low prices mean increased mobility, which means increased economic productivity. The end result, says Bank of America analyst Francisco Blanch, is “one of the largest transfers of wealth in human history” as $3 trillion remain in consumers’ pockets rather than going to the oil companies. I wouldn’t call this a “wealth transfer” so much as a reduction in income inequality, but either way, it is a good thing.

Naturally, some people hate the idea of increased mobility from lower fuel prices. “Cheap gas raises fears of urban sprawl,” warns NPR. Since “urban sprawl” is a made-up problem, I’d have to rewrite this as, “Cheap gas raises hopes of urban sprawl.” The only real “fear” is on the part of city officials who want everyone to pay taxes to them so they can build stadiums, light-rail lines, and other useless urban monuments.

A more cogent argument is made by UC Berkeley sustainability professor Maximilian Auffhammer, who argues that “gas is too cheap” because current prices fail to cover all of the external costs of driving. He cites what he calls a “classic paper” that calculates the external costs of driving to be $2.28 per gallon. If that were true, then one approach would be to tax gasoline $2.28 a gallon and use the revenues to pay those external costs.

The only problem is that most of the so-called external costs aren’t external at all but are paid by highway users. The largest share of calculated costs, estimated at $1.05 a gallon, is the cost of congestion. This is really a cost of bad planning, not gasoline. Either way, the cost is almost entirely paid by people in traffic consuming that gasoline.

The next largest cost, at 63 cents a gallon, is the cost of accidents. Again, this is partly a cost of bad planning: remember how fatality rates dropped nearly 20 percent between 2007 and 2009, largely due to the reduction in congestion caused by the recession? This decline could have taken place years before if cities had been serious about relieving congestion rather than ignoring it. In any case, most of the cost of accidents, like the other costs of congestion, are largely internalized by the auto drivers through insurance.

The next-largest cost, pegged at 42 cents per gallon, is “local pollution.” While that is truly an external cost, it is also rapidly declining as shown in figure 1 of the paper. According to EPA data, total vehicle emissions of most pollutants have declined by more than 50 percent since the numbers used in this 2006 report. Thus, the 42 cents per gallon is more like 20 cents per gallon and falling fast.

At 12 cents a gallon, the next-largest cost is “oil dependency,” which the paper defines as exposing “the economy to energy price volatility and price manipulation” that “may compromise national security and foreign policy interests.” That problem, which was questionable in the first place, seems to have gone away thanks to the resurgence of oil production within the United States, which has made other oil producers, such as Saudi Arabia, more dependent on us than we are on them.

Finally, at a mere 6 cents per gallon, is the cost of greenhouse gas emissions. If you believe this is a cost, it will decline when measured as a cost per mile as cars get more fuel efficient under the current CAFE standards. But it should remain fixed as a cost per gallon as burning a gallon of gasoline will always produce a fixed amount of greenhouse gases.

In short, rather than $2.38 per gallon, the external cost of driving is closer to around 26 cents per gallon. Twenty cents of this cost is steadily declining as cars get cleaner and all of it is declining when measured per mile as cars get more fuel-efficient.

It’s worth noting that, though we are seeing an increase in driving due to low fuel prices, the amount of driving we do isn’t all that sensitive to fuel prices. Real gasoline prices doubled between 2000 and 2009, yet per capita driving continued to grow until the recession began. Prices have fallen by 50 percent in the last six months or so, yet the 3 or 4 percent increase in driving may be as much due to increased employment as to more affordable fuel.

This means that, though there may be some externalities from driving, raising gas taxes and creating government slush funds with the revenues is not the best way of dealing with those externalities. I’d feel differently if I felt any assurance that government would use those revenues to actually fix the externalities, but that seems unlikely. I actually like the idea of tradable permits best, but short of that the current system of ever-tightening pollution controls seems to be working well at little cost to consumers and without threatening the economic benefits of increased mobility.

Just days before the Trans-Pacific Partnership is scheduled to be signed by its 12 member governments, an official expert from the UN Human Rights Council released a statement criticizing the agreement for being incompatible with the goals of the UN human rights regime.  The criticism isn’t about the TPP in particular so much as the modern model of trade agreements as an inadequate vehicle for furthering wealth redistribution and massive regulatory intervention to pursue progressive goals.  That is, it’s a complaint about what the TPP doesn’t do.

There are, of course, lots of things the TPP doesn’t do.  Critics have complained that the TPP doesn’t prevent climate change, doesn’t eliminate human trafficking, and doesn’t reform repressive regimes in Vietnam and Brunei.  But these are not things the TPP was ever supposed to do.  It’s like complaining that Obamacare doesn’t end the drug war.

There are legitimate criticisms to be leveled against the TPP—things it does but shouldn’t and things it doesn’t do as well as it should.  There’s also a lot to like.  But debates over trade agreements often get bogged down with unrelated controversies that are easier to argue about.  Not one of the complaints the UN expert makes is explicitly about trade liberalization.  

The statement includes two specific criticisms of the TPP.  One is the secrecy of the negotiations, and the other is investor-state dispute settlement.  These are well-worn, standard complaints opponents of the TPP have been making for years.  The persuasiveness of both arguments relies on reflexive fear of the unknown—opponents can hint at what horrible things might happen from the TPP rather than looking at specific, measurable impacts.

These issues have become so controversial, in fact, that eliminating ISDS from future trade agreements and increasing transparency in negotiations would probably result in more free trade

The proliferation and prominence of non-trade arguments against trade agreements show that agreements like the TPP have strayed too far away from their core mission.  Using “human rights” as an argument against trade agreements will be harder to do if they focus more on simply eliminating tariffs, quotas, and subsidies.  A debate over the value of protectionism in promoting national and global welfare sounds very appealing and would surely lead to better policy.

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