Policy Institutes

Two recent economic studies purporting to estimate the impact of the Trans-Pacific Partnership (TPP) agreement on the U.S. economy have sparked a kerfuffle between the deal’s advocates and detractors. One study, published by the Peterson Institute for International Economics, estimates increases to U.S. income of 0.5 percent by 2030 with gains to labor accruing slightly more than gains to capital.  The other, published by Tufts University’s Global Development and Environment Institute, estimates that the TPP would reduce U.S. income by 0.5 percent, reduce employment by almost half a million jobs, and increase income inequality.  The findings of each study are being trumpeted as dispositive by their respective constituencies. Who’s right?

In a recent blog post, PIIE-affiliated economist Robert Lawrence wrote that to judge the credibility of these models, three questions should be asked: Is the model used appropriate for exploring trade policy? Does the model depict TPP sensibly? Are the results credible? Lawrence then goes on to explain why he answers “yes” to each question regarding the PIIE study and “no” to each regarding the Tufts study. Well sure, Bob, at a minimum, those criteria are important. And they help distinguish the PIIE model as relatively credible – that is, relative to the Tufts model. But what about relative to reality?  

A model might depict TPP sensibly, but incompletely and imprecisely.  How can we be sure those imperfections don’t have a large impact on the results?  And even if the results are credible, in that they don’t deviate dramatically from expectations, their purpose – or, at least, the weight assigned to these studies in the public’s mind – is to produce reasonable estimates, not to corroborate the model’s capacity to process reasonable expectations.

With apologies to my trade economist friends, anyone who treats the estimates produced by economic models as mathematical truths is, well, part of the problem. Lawrence doesn’t do that, but too many trade policy combatants do. Certainly, some models are more rigorous than others, but all rely on assumptions. The greater the number and complexity of exogenous policy changes being modeled, the greater the number of estimates and assumptions to incorporate, and the further removed from reality the results will be. Sometimes the estimates are merely best guesses and sometimes the assumptions have no better than a 50 percent probability of occurrence.  For example, many of the economic benefits of TPP will derive from reductions in non-tariff barriers to trade, such as regulatory opaqueness.  How does one model the increase in regulatory transparency?  How does one account for stricter environmental or labor or intellectual property regulations? How does one assign numeric values to rules limiting restrictions on cross-border data flows?

The PIIE study assumes that 75 percent of non-tariff barriers constitute trade restrictions (with 25 percent being regulations intended to promote or protect social goods, such as food quality and safety, for example) and that about 75 percent of those NTBs affecting goods trade and 50 percent affecting services trade are actionable.  So, the PIIE assumptions are that 56.25 percent and 37.50 percent of NTBs affecting good and services, respectively, will be reformed under the TPP, and the effect of each reform is modeled as a trade cost reduction of 0 to 100 percent for each combination of industry and country.  One other assumption is that 20 percent of these reforms also will benefit non-TPP members, which – through a feedback loop – will magnify the benefits to TPP-country economies.  So, modeling the TPP requires numerous assumptions and estimates from the outset.

With respect to the PIIE study, perhaps, we can accept that the sign of the coefficient on income is positive (“the TPP will produce benefits for the U.S. economy”), but the magnitude of 0.5 isn’t much better than a guess because it is the product of so many assumptions and estimates.  And despite the model’s relative rigor in using microeconomic behavioral equations to transmit the effects of TPP, predicting how economic agents will react to a confluence of policy changes is a dicey proposition – a fatal conceit. Economics is not science. The preferences, information, and knowledge that drive economic decisions are all personal, nuanced, and dispersed.  They cannot be represented mathematically with any precision.  Assumptions about how economic agents should react that are, at best, based on probabilities and expectations of utility- or profit-maximization don’t always hold. To their credit, the Tufts economists, responding to Lawrence’s legitimate indictment of their approach, concede that economic models involve a lot of guesswork and that economic modelers have a long way to go.

What the public and policymakers should be considering – what should be under the spotlight – are the rules of the TPP, not the projected outcomes. The outcomes cannot be known with certainty. The rules are objective and concrete. We should be able to draw conclusions about the desirability of the TPP from its language – from the rules it articulates – without guarantees of particular outcomes. The TPP should be judged by the degree of economic freedom it restores, not by a shouting match over highly contestable estimates.  Indeed, some chapters of the TPP are expressly about reducing trade barriers, including tariffs and other obstacles to competition. Those provisions should be universally embraced, as they will help restore our economic freedoms. (For those whose companies or industries are subsequently exposed to greater competition when barriers are removed, please realize that you have been benefitting at everyone else’s expense and that liberalization rights that wrong.)

Other chapters of the TPP are less about liberalization and more about crafting common rules about how governments treat foreign enterprises and how they enforce labor rights, environmental regulations, intellectual property provisions, and so on.  It is less clear whether and how these “governance” chapters enhance or impair or economic freedom. But each chapter can be assessed exhaustively on a qualitative basis, without need of highly malleable estimates of economic outcomes.

In the weeks and month ahead, look for a comprehensive, chapter-by-chapter assessment of the TPP from my Cato Institute trade policy colleagues and me.

The ongoing U.S. presence in Afghanistan is plenty misguided on its own: our efforts likely increase rather than decrease Muslim antipathy toward the United States, and our track record of fostering democracy, capitalism, peace, or freedom via invasion and occupation is, to say the least, poor.

To make matters worse, we are complicating the mission by also trying to suppress opium production:

The United States spent more than $7 billion in the past 14 years to fight the runaway poppy production that has made Afghan opium the world’s biggest brand.

Beyond the usual arguments, American-inspired drug prohibition is especially problematic in Afghanistan.  The inevitable evasion and corruption undermine the rule of law, and anti-opium actions such as crop eradication generate hostility from local farmers rather than winning their hearts and minds.

Not to mention that all our efforts appear to have no meaningful impact on the opium trade:

More opium was cultivated in 2014, the last year of the NATO combat mission, than in any other year since the United Nations began keeping records in 2002.

The good news is that, despite U.S. efforts, the opium trade is normalizing:

But here in one of the few corners of Helmand Province that is peaceful and in firm government control, the green stalks and swollen bulbs of opium were growing thick and high within eyeshot of official buildings during the past poppy season — signs of a local narco-state administered directly by government officials.

In the district of Garmsir, poppy cultivation not only is tolerated, but is a source of money that the local government depends on. Officials have imposed a tax on farmers practically identical to the one the Taliban use in places they control.

Some of the revenue is kicked up the chain, all the way to officials in Kabul, the capital, ensuring that the local authorities maintain support from higher-ups and keeping the opium growing. And Garmsir is just one example of official involvement in the drug trade.

Multiple visits to Afghan opium country over the past year, and extensive interviews with opium farmers, local elders, and Afghan and Western officials, laid bare the reality that even if the Western-backed government succeeds, the opium seems here to stay.

To be sure, official prohibition combined with de facto legalization is far from the libertarian ideal.

But de facto tolerance for the opium trade allows farmers to earn a living in peace and saves the resources now wasted on attempts at opium suppression.  Permitting the market to move above ground also shrinks the violence associated with underground markets.

Profits from opium trafficking are, of course, a source of revenue for terrorists.  That, however, is also an artifact of prohibition: if opium were legal, the profit rate would be no different than for any other crop, and terrorists would have one less source of revenue.

In response to my op-ed in this morning’s Philadelphia Inquirer, calling on the Senate to delay filling Justice Scalia’s Supreme Court seat until after the people have spoken in November about which way they want the country to go, I’m getting quite a bit of feedback claiming that the president was elected not for three but for four years.

True, and he’s perfectly within his constitutional power to nominate someone to fill the seat. But those critics, pointing to the 2012 elections, seem to forget the 2014 elections, which were widely read as a repudiation of Mr. Obama and his policies. The Republican Senate is perfectly within its constitutional powers to ignore any such nomination—much as Senator Schumer and his colleagues did for two years after President George W. Bush made 11 appellate court nominations in 2001, including John Roberts, Michael McConnell, and Miguel Estrada, all with stellar qualifications.

What seems to be forgotten as well is that, at the end of the day, these are political decisions. The Constitution leaves the composition of the courts indirectly but ultimately to the people, a power they exercise through elections. And that is why this next election will be so important.

Under the header, “Obama is president until January 20, 2017. It’s his job to nominate a justice, the Senate has a responsibility to vote,” Hillary Clinton’s Facebook page issues the following statement:

Nearly everything Clinton says here is either misleading or just untrue.

It was actually 222 days between when Justice Powell announced his retirement (June 26, 1987) and the Senate confirmed Justice Kennedy to succeed him (February 3, 1988).

Reagan nominated Kennedy in a non-election year (November 30, 1987).

Recent history is replete with partisan jockeying over Supreme Court nominations, from both Republicans and Democrats. Kennedy was Reagan’s third pick to fill that vacancy. The first was Robert Bork, the second was Douglas Ginsburg. Opponents painted Bork as a racist and misogynist. Ginsburg withdrew after he came under fire for having smoked marijuana (O, the humanity!) as a young man. Sen. Chuck Schumer once called on the Senate to block almost anyone George W. Bush nominated to the Supreme Court.

As a senator, Barack Obama tried to filibuster a vote on Samuel Alito’s nomination. Once Obama became president and started nominating judges, Sen. Harry Reid moved to prevent Republicans from doing the same thing to lower-court nominations. Et cetera, et cetera.

As for our constitutional principles, whether or not Senate Democrats acted wisely in rejecting those nominations, there can be no question they acted well within the powers the Constitution grants them. Schumer, Obama, and Reid likewise acted well within those powers.

The Senate does not have “a responsibility to vote” on an Obama nomination, any more than it had a responsibility to vote on Ginsburg’s nomination. The Senate can withhold its consent any way it wants.

Thus, if Senate Republicans now refuse even to entertain any Obama nominations, there will be nothing ahistorical about it, and nothing particularly improper about it. There won’t even be anything particularly Republican about it. Hillary is just making stuff up to serve her own partisan interests.

Which means she, too, is acting well within the historical tradition of Supreme Court nominations.

 

In addition to his many judicial bona fides, Justice Antonin Scalia was an underappreciated defender of the Fourth Amendment. With his typical thoroughness and deep textualism that reshaped American judging, the late conservative icon threw out convictions of individuals who were arrested as a result of unconstitutional violations. In Kyllo v. United States (2001), police illegally took thermal images of a man’s home to find a marijuana grow operation. In United States v. Jones (2012), a man had his Jeep tracked with GPS devices without a warrant, leading to a drug trafficking conviction. And in Florida v. Jardines (2013), police brought a drug dog onto a man’s porch to indicate drug activity inside, again, a marijuana grow operation. To Justice Scalia, the sanctity of a person’s home and property—beyond the “reasonable expectation of privacy” standard that dominates Fourth Amendment jurisprudence—was to be held above the governmental interests in fighting crime.

In Kyllo, Scalia wrote for a divided 5-4 majority that included Justices Clarence Thomas, Ruth Bader Ginsburg, David Souter, and Stephen Breyer: “The Fourth Amendment’s protection of the home has never been tied to the measurement of the quality or quantity of information obtained….In the home, our cases show, all details are intimate details, because the entire area is held safe from prying government eyes.” In Jardines, another non-traditional 5-4 split in which he was joined by Justices Thomas, Ginsburg, Sonia Sotomayor, and Elena Kagan, Scalia affirmed this dedication to the home, writing “[W]hen it comes to the Fourth Amendment, the home is first among equals.”

Jones was unanimous and, consequently, one of his dryer decisions lacking both colorful barbs and grand statements about the Fourth Amendment itself. However, it bore the Scalian hallmark of deep historical consideration of the government intrusion, and the Court ultimately rejected the warrantless tracking of Mr. Jones’ Jeep.

When unencumbered by a coalition for a majority or unanimous opinion, Scalia famously unleashed his contempt for specious arguments in his dissenting opinions. In Maryland v. King (2013), a case in which the state of Maryland prevailed on warrantless DNA collection from arrestees, Scalia set the tone at the beginning:

“The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence. That prohibition is categorical and without exception; it lies at the very heart of the Fourth Amendment.”

Scalia, joined by Justices Ginsburg, Kagan, and Sotomayor, picked apart the majority’s claim that identification was the target of the collection. The idea that a person who had been fingerprinted, had retained counsel, and had filed motions in court, needed to be identified by DNA testing “taxes the credulity of the credulous.” The government, the dissenters claimed, was trying to gather evidence of other crimes not related to the crime for which he had been charged. Scalia added, “Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches. The Fourth Amendment must prevail.”

Scalia wasn’t perfect on the issue. For example, he signed on to the majority opinion in Kentucky v. King (2011), which said police officers who knock on a door without suspicion can enter the residence to stop the destruction of evidence, arguably creating their own ‘exigent circumstances’ exception to the warrant requirement. Only Justice Ginsburg dissented in that case.

But, generally speaking, Justice Scalia understood that the Fourth Amendment should protect all Americans from the insecurity that comes from roving watchers and investigators equipped with ever-evolving technologies and tactics. While it may be tempting to balance law enforcement interests to keep “guilty” people in prison, Scalia recognized the importance of limiting the government’s ability to impose upon the lives and homes of American citizens in criminal investigations.

Unfortunately, concurrences in these cases and other opinions demonstrate that most of the remaining justices are still wed to the utterly arbitrary—and thus inherently unreliable—“reasonable expectation of privacy” standard laid out in Katz v. United States (1967). My colleague Jim Harper calls the Katz standard “a one-way ratchet against privacy and Fourth Amendment protection.” Scalia, on the other hand, used Katz to broaden the traditional common-law trespass rules dating back centuries, not supplant them with judicial determinations of privacy expectations.

Because the Fourth Amendment is neither a hot-button political issue that dominates nomination fights nor is its support easily predictable on the left-right divide, a nominee from either party—most likely a tabula rasa given present political circumstances—is not very likely to be a stalwart guardian of Fourth Amendment rights.

Court watchers and legal scholars will take years to comprehend the sum of Justice Scalia’s profound impact on the Supreme Court and American law. While a celebrated conservative, Scalia’s jurisprudence was not easily pigeonholed and his Fourth Amendment jurisprudence should not be forgotten. As law enforcement will continue to find new ways to get around the Fourth Amendment, we can only hope that the successor to his seat on the bench carries on this important but overlooked part of his legacy. In the meantime, the American public has one fewer protector against unconstitutional police intrusion.

Resquiescat in pace 

As government workers – though only about a third of private-sector office workers – get a day off for Presidents’ Day (legally, though not in fact, George Washington’s Birthday), I thought I’d offer some reading about presidents.

First, my own tribute to our first president, the man who led America in war and peace and who gave up power to make us a republic:

Give the last word to Washington’s great adversary, King George III. The king asked his American painter, Benjamin West, what Washington would do after winning independence. West replied, “They say he will return to his farm.”

“If he does that,” the incredulous monarch said, “he will be the greatest man in the world.”

Then, of course, Gene Healy’s book The Cult of the Presidency, which argues that 200 years after Washington, “presidential candidates talk as if they’re running for a job that’s a combination of guardian angel, shaman, and supreme warlord of the earth.” Buy it today, at a 50 percent discount!

Gene updated that argument with a short ebook, False Idol: Barack Obama and the Continuing Cult of the Presidency. As they say, start reading in minutes!

And then you can read my short response to Politico’s question, who were the best and worst presidents? I noted:

Presidential scholars love presidents who expand the size, scope and power of government. Thus they put the Roosevelts at the top of the list. And they rate Woodrow Wilson – the anti-Madisonian president who gave us the entirely unnecessary World War I, which led to communism, National Socialism, World War II, and the Cold War –8th. Now there’s a record for President Obama to aspire to! Create a century of war and terrorism, and you can move up from 15th to 8th.

Hmmm, maybe it would be better to just read a biography of George Washington.

 

Senate Majority Leader Mitch McConnell (R-KY) responded to the sudden death of Supreme Court Justice Antonin Scalia with a press release saying, “this vacancy should not be filled until we have a new President.” Republican presidential candidates Ben Carson, Sen. Ted Cruz (TX), and Sen. Marco Rubio (FL) agree. Hillary Clinton spoke for many Democrats: “The Republicans in the Senate and on the campaign trail who are calling for Justice Scalia’s seat to remain vacant dishonor the Constitution. The Senate has a constitutional responsibly here that it cannot abdicate for partisan political reasons.” Conor Friedersdorf says the no-vote stratagem is “illegitimate” because “the Senate does have an obligation to fulfill its ‘advice and consent’ obligation….A preemptive rejection of any possible Supreme Court appointment is self-evidently in conflict with that obligation.” Clinton and Friedersdorf are wrong. Senators have every right to advocate not holding a vote on an Obama appointment, and not to hold a vote.

Clinton and Friedersdorf are overlooking the “consent” part of “advice and consent.” Consent means the Senate is under no obligation whatsoever even to hold a vote on any presidential appointment. The Senate’s obligation is to do what the Senate wants, and only what the Senate wants. Those are the rules. To try to hold senators to a different rule is to try to change the rules on them–and people tend to resent that. Everyone is free to disagree with the positions individual senators or the Senate as a whole take on individual nominations or prospective nominations. But there is no question that senators individually or collectively can deny their consent to any actual or prospective nomination for any reason–just as the American people can vote for whomever they want, for whatever reason they want.

Indeed, President Obama isn’t even entitled to nominate a replacement for Justice Scalia–or at least, Congress can deny him that right. The Constitution gives Congress the power to decide how many seats there are on the Supreme Court. In 1789, there were only six. Given sufficient congressional support (i.e., veto-proof majorities in both chambers), Congress could reduce the number of Supreme Court justices from the current nine to eight. McConnell, Cruz, and Rubio could propose doing so right now. It seems strange to criticize senators who are merely expressing in what circumstances they will withhold their consent when Congress has the power to deny the president the ability to fill this vacancy entirely by itself eliminating this vacancy.

At the same time Democrats turn a blind eye to President Obama repeatedly ignoring constitutional limits on his power, they claim Republicans would dishonor the Constitution if they use powers the Constitution clearly grants them. That is unlikely to dissuade Senate Republicans from delaying a vote on Scalia’s successor until 2017. Nor should it. For more on this topic, please read this by my colleague Ilya Shapiro at Forbes.

Scalia’s untimely passing was a gut punch. I didn’t agree with him all the time. But I agree with Trevor Burrus about him. RIP.

Much will be said in the coming days and weeks about Justice Scalia’s legacy.  He served on the Supreme Court for 30 years and was always an active presence during the Court’s oral arguments.  Because he served such a long time, it will take some time to adjust to his absence.  Scalia’s most important legacy will not be any particular opinion he authored, but his approach to constitutional interpretation in general.  He was a champion of the constitutional text and the original understanding of the charter. Scalia stopped the liberals from nullifying the parts of the Constitution that they disagreed with, such as property rights, federalism, and the right to keep and bear arms. In recent years, Scalia criticized his liberal colleagues for citing the practices and precedents of foreign countries because those rulings could not help to shed any light on the meaning of the American Constitution.  His finest hour, in my opinion, was when he defended the Great Writ of habeas corpus against a dangerous attack from conservative lawyers in the Bush administration in the aftermath of 9/11.

Scalia was a conservative, not a libertarian, so I disagreed with many of his opinions, but one can’t really appreciate Scalia unless one was reading Supreme Court rulings in the years before he arrived on the Court in 1986.  The quality of the legal analysis and writing were generally poor.  Scalia brought real intellectual rigor to the Court’s internal debates and opinions.  The conservative legal movement has lost its greatest champion.  Scalia was a gamechanger and now that he is gone, there is much uncertainty.

Go here for the epic debate at Cato between Antonin Scalia and Richard Epstein in 1984.

The news has just broken that Supreme Court Justice Antonin Scalia, 79, was found dead today in his room at a luxury resort in west Texas where he was attending a private event. He apparently died of natural causes.  

Scalia has been a major force in American law since President Reagan nominated him to the Supreme Court in 1986. His opinions, including his trenchant dissents, have shaped every area of our law. A leader of the conservative wing of the Court, the force of his intellect, both on and off the bench, was immense.

The immediate question on many minds, of course, is whether his seat will be filled before President Obama leaves office. Given the growing differences between the president and the Republican majority in the Senate, especially over the reach of executive power under the Constitution, it is likely that the seat will remain vacant until the next president is in office.

May Justice Scalia rest in peace.

 

Justice Antonin Scalia died today. It is a profound loss to the Court, the nation, and to the study of law. Everyone should mourn his loss, no matter which side of the political spectrum they are on.

Yet, due to Scalia’s divisiveness, there will no doubt be many uncouth tweets, posts, and op-eds in the coming days from those who disagreed with him more often than not. While there are other justices on the “conservative” side of the Court, Scalia’s pugnacious and often vituperative opinions have a way of either getting under your skin (if you disagree) or making you triumphantly raise your fist in the air (if you agree). In my opinion, Scalia was not only finest writer ever to sit on the Court, he was one of the best rhetoricians in history.

In the coming days, we will see many reactions from across the political spectrum. I predict, and hope, that many of Scalia’s ideological opponents will give the man the respect he deserved. And perhaps that, more than anything, will be the testament to his enduring legacy. By any objective measure, Scalia is among the greatest justices in our history. With his penetrating logic and his colorful wit, Scalia was the most forceful and visible advocate for originalism, a theory of constitutional interpretation that was derided when he ascended to the bench and is now, for both liberals and conservatives, mainstream.

During law school, many of my classmates would comment on their intense dislike for Scalia. I always responded by pointing out how many opinions he had published in our textbooks. Those opinions weren’t just in there because they were comparatively fun to read, which is true, but because a Scalia opinion has a way of clarifying the legal questions at issue. They are perfect pedagogical devices. 

Unquestionably, Scalia’s ideas will still be discussed in 100 years, much in the same way we still discuss Joseph Story, Oliver Wendell Holmes, Jr., or Learned Hand. This raises the question, however, of whether Scalia was one of the last great Supreme Court justices. Let me explain:

Only a few hours after Scalia’s death was announced, people began discussing how an ensuing nomination fight would go down. Every indication points to complete stagnation, and President Obama will likely end his presidency unable to fill the vacancy, leaving the Court one justice short. Of course, he could nominate someone who the Senate would confirm–an ideological moderate–but he is no more likely to do that than a Republican president in the same situation. The Court is simply too important now.

Which is why Justice Scalia was one of the last of a dying breed: an iconoclastic Supreme Court justice with hard and fast principles, a blazing intellect, and the wherewithal to carry an entire school of jurisprudence on his back. In other words, someone who could never be confirmed today, no matter which party nominated them.

This is true for both parties. Many times, I’ve heard people on the left say, “we need a Scalia,” acknowledging the force of the man’s words and ideas. Current battles over the Court almost guarantee that neither side will find another one. 

Now, two qualifications are paramount for possible Supreme Court justices: 1) youth; 2) ideological conformity. The grueling nomination process also means that prospective nominees must have led ideologically milquetoast lives, never having said too much to push the wrong people’s buttons, but having said just enough to convince the party that they are a predictable, party-line vote. Certainly, a Scalia nomination today would have no chance of winning approval.  

Truly brilliant legal minds like Scalia help create the intellectual framework for our judicial system, and I fear that we will not see many more like him. 

My deepest condolences to the Scalia family.

RIP

Justice Scalia, who was marking his 30th year on the Supreme Court, is indisputably the most influential jurist of my lifetime (and probably longer than that). He reoriented the study and practice of constitutional law towards the meaning of the actual Constitution and the interpretation of statutes toward their actual text. Originalism and textualism simply wouldn’t exist in a way worthy of their names without him.

But that’s not the only way in which he revolutionized the law. His writing style—clear, direct, and with obvious personality—blew fresh air through often staid and technocratic jurisprudence. He knew that he was writing not just for legal experts, but for the ages. There’s a reason that his opinions get reprinted in law school casebooks even when he’s not in the majority.

In coming days, we’ll see plenty of analyses of Scalia’s “greatest hits,” and there were plenty, whether you agree with him or not. I especially appreciate his opinion for the Court in District of Columbia v. Heller (2008), which confirmed that the Second Amendment protects an individual right. (And note that the dissenting justices pushed back on originalist grounds.) I especially regret his concurring opinion in Gonzales v. Raich (2005), where the Supreme Court authorized the federal government’s regulation of (marijuana) plants that people grow in their backyard for their own consumption. But agree with him or not in any particular case, you cannot deny his impact.

Scalia’s passing is a huge event not simply because this justice was a giant, or because the Court is increasingly split 5-4 on the biggest cases. Those facts are significant, to be sure—and this term alone so many key cases will now be recast, in areas ranging from affirmative action to abortion, workers’ First Amendment rights to immigration, voting rights to Obamacare’s contraceptive mandate. But the bigger deal is that, of course, we are now in the midst of a presidential election, one that is going down as one of the most bizarre and bitter ever.

Given how consequential Justice Scalia’s replacement will be—deciding all those 5-4 cases and serving on the Court for decades—it would be irresponsible for the Senate to confirm any nominee President Obama may send them. Election 2016 is now about the direction of the Supreme Court. Let the people decide.

My condolences to the Scalia family. RIP. 

The Spin Cycle is a reoccurring feature based upon just how much the latest weather or climate story, policy pronouncement, or simply poo-bah blather spins the truth. Statements are given a rating between 1-5 spin cycles, with less cycles meaning less spin. For a more in-depth description, visit the inaugural edition.

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As one of us has already noted, on Monday evening the Supreme Court voted 5-4 to put President Obama’s Clean Power Plan on ice—where it will remain until the justices get a chance to rule on the regulatory package themselves or until a new President sidelines it. The White House, whistling past a graveyard of unrecyclable solar panels (thanks to all the arsenic in them), blew up the vorticity of its spin cycle into relativistic speeds, calling it a “bump in the road” and a “temporary procedural issue.”

Over in the UK, Lisa Nandy, the shadow energy and climate minister knows why: “There is such strong support within the US for Obama’s efforts on climate change that I think this ruling will prove to be only a very temporary issue.”

Au contraire! According to a Yougov poll late last month, a grand total of 9 per cent of Americans think global warming is the most important issue confronting us. In only one country was there less support:  Saudi Arabia.

All of this ignores some facts on the ground. This is the biggest intervention by the Supremes in ongoing litigation since they stopped the partial Florida recount in December 2000 in the case that became Bush v. Gore. They only do stuff like this when there’s a lot at stake, irreparable harm will be done by not intervening, and at least five justices believe it more likely than not that the challenge will succeed.

Monday’s  5-4 vote hinged on Justice Anthony Kennedy. This is noteworthy because the only reason the Clean Power Plan came about in the first place was because of his deciding vote in the 2007 case, Massachusetts v. EPA, which controversially said that the Clean Air Act amendments passed in the George H. W. Bush administration contained one small bit of language that may allow the EPA to regulate carbon dioxide.

But the Court reminded the administration in last summer’s mercury ruling – Michigan v. EPA – that when it starts citing an obscure part of decades-old legislation in order to drastically remake the nation, it’s going to take notice. The damage had already been done with the regulations at issue in that case – you can’t unspend the money that was spent complying with the illegal regulation – but it’s a different story with the Clean Power Plan, which the Court has now nipped in the bud.

This “bump in the road” is actually Mount McKinley Denali. And calling the Supreme Court’s stay a “temporary procedural issue” is about as accurate as saying the same about stopping the 2000 Florida recount.

Five spinnies, hands down!

Yesterday’s agreement for a cessation of hostilities in the Syrian conflict – including provision for humanitarian aid deliveries – is welcome news from an increasingly bloody conflict. The deal has been greeted with justifiable skepticism from observers around the world, who note the many and varied problems inherent in the proposed agreement. This is not a formal ceasefire, and it faces long odds of successful implementation. But that doesn’t mean it isn’t worth supporting to the fullest extent possible. If it does succeed in reducing violence inside Syria, it just might act as the necessary first step to a more comprehensive ceasefire and transition agreement.

One could hardly have imagined a more ill-omened location for the agreement, which was announced yesterday on the sidelines of the Munich Security Conference. The agreement itself calls for a cessation of hostilities inside Syria – though it does not apply to either of Syria’s main extremist groups, ISIS or Jabhat al-Nusra – and for the rapid provision of access for the delivery of humanitarian supplies to Syria’s besieged cities. It is not an immediate deal: parties have one week before it takes effect. Yet if the deal sticks, it will help to stem the flow of Syrian refugees and provide desperately needed humanitarian assistance.

There are certainly reasons to doubt the deal’s feasibility. It is accurately described as a cessation of hostilities, rather than a ceasefire, which would require monitoring and enforcement mechanisms. This deal lacks either; without a relatively neutral third party monitor, it will be difficult to ascertain from dueling propaganda whether it is actually working. Nor are the main belligerents – the Assad regime and the Syrian rebels – actually parties to the agreement, another reason for its less formal structure. The deal will rely heavily on the ability of Russia and the U.S. to pressure conflicting parties.

The biggest obstacle to any peace remains the same: the definition of “terrorist.” This agreement doesn’t apply to extremist groups, meaning that US airstrikes against ISIS will continue unabated. But it is also unknown whether Russia will reorient its own airstrikes, which have often struck at more moderate anti-Assad rebels that the Russians describe as terrorists. The problem is compounded by the fact that Jabhat al-Nusra itself doesn’t hold geographically distinct territory, with members spread throughout the West of Syria who mingle and cooperate with other rebel groups. It will be exceedingly hard to tell whether Russian airstrikes are aimed at Nusra alone, or at other groups.   

It is also true that the one week delay before hostilities end will likely allow Russia and the Assad regime to solidify the gains they’ve made in and around Aleppo, freezing the conflict in a strategically advantageous way. Russia pulled a similar stunt during the Ukraine conflict, delaying the implementation of a ceasefire in order to solidify rebel control over the key town of Debaltseve. Yet if Russia continues its indiscriminate air campaign past the one week mark, however, it will suffer a reputational and public relations costs. 

For all these flaws, the deal agreed in Munich offers a potential way forward for a peace process which has stalled, in a situation where there are few other good options. The alternatives are far worse: an impossible to protect no-fly zone which would could bring the US and Russia into direct conflict, a military intervention by Turkey or Saudi Arabia aimed at backing favored rebels and toppling Assad, or simply the incessant grinding humanitarian tragedy of the ongoing war.

And if the cessation of hostilities is successful, it will provide much needed space for humanitarian aid to flow into besieged areas like Deir ez-Zor and Aleppo, as well as providing the time and minimal level of trust needed to reopen the stalled Geneva peace process. There were also hints from Kerry and Lavrov that we might see increased U.S.-Russian military cooperation against ISIS, which has so far been inhibited by Russia’s wholehearted military support for Assad. Secretary of Defense Ashton Carter spoke this week in Europe about the need to accelerate the campaign against ISIS. But this is likely to be impossible in the absence of a peace process in Syria and increased coordination or cooperation with Russia.

There are many good reasons to be skeptical about yesterday’s announcement. As Secretary Kerry noted, “the proof of commitment will come only with implementation.” Despite that, it offers the potential for a path forward in a conflict that has become increasingly intractable and bloody. It might fail. But until it does, the United States should do everything in our power to help it succeed. 

You Ought to Have a Look is a feature from the Center for the Study of Science posted by Patrick J. Michaels and Paul C. (“Chip”) Knappenberger.  While this section will feature all of the areas of interest that we are emphasizing, the prominence of the climate issue is driving a tremendous amount of web traffic.  Here we post a few of the best in recent days, along with our color commentary. 

The big climate news of the week is, of course, that the U.S. Supreme Court put a stay on the EPA’s Clean Power Plan until the Plan’s detractors have their day in court.

Cato’s Ilya Shapiro summarized the situation succinctly:

The Supreme Court’s stay of the Clean Power Plan is a welcome development. The regulations constitute an unprecedented assertion of agency authority – particularly the dubious invocation of Section 111 of the Clean Air Act to justify regulating power-plant emissions – so the Court had to step in to prevent irrevocable harm to the energy sector. As we saw last term in Michigan v. EPA, often it’s too late to fix administrative abuses judicially after the fact. Lawlessness must be nipped in the bud.

And this move may have foreshadowed the death knell of the Clean Power Plan altogether; the only question is whether the justices will have a chance to strike it down for good before the next president reverses it.

Lots has been written on it.  In addition to Ilya’s, below is a sampling of others offering good insights. There are many more, and we apologize to those whose comments should have made this list but were left off (through negligence or space).

David Rivkin and Andrew Grossman: “Pulling the Plug on Obama’s Power Plan

Jonathan Adler: “Supreme Court puts the brakes on the EPA’s Clean Power Plan

Amy Harder and Brent Kendall: “Carbon-Rule Stay Puts Obama Environmental Legacy on the Line

Wall Street Journal Editors: “A Supreme Carbon Rebuke

Competitive Enterprise Institute: “Supreme Court Puts EPA’s Clean Power Plan on Hold

Mike Bastach: “The Supreme Court Just Delivered A Crippling Blow To Obama’s Global Warming Agenda

PBS Newshour: “Will a surprising Supreme Court move shake the Paris climate accord?” 

While there are many interesting lines of discussion about the SCOTUS decision, one that is particularly intriguing is the impact that the Clean Power Plan stay will have on the adoption of the Paris Climate Agreement.

Coral Davenport’s story for The New York TimesSupreme Court’s Blow to Emissions Efforts May Imperil Paris Climate Accord” lays out the potential impact and is well-worth an entire read.  Here’s a teaser:

But in the capitals of India and China, the other two largest polluters, climate change policy experts said the court’s decision threw the United States’ commitment into question, and possibly New Delhi’s and Beijing’s.

Competitive Enterprise Institute’s (CEI) Chris Horner adds that “Obama administration officials repeatedly told international community that Clean Power Plan ‘legally bulletproof’.”

Oops.

Horner goes on to wonder whether countries, since they were duped by the U.S., will now actually refuse to sign the Agreement at the U.N.’s big signing celebration scheduled in New York City on, you guessed it, Earth Day 2016, or whether they’ll just follow the money.

We’ll see (but we remain, like Horner, skeptical of any initial refusal…that’ll come later down the road when promised targets are being missed).

We also can’t help but wonder how this may effect another aspect of the U.N.’s Paris Climate Agreement—the requirement that the IPCC produce a report (in 2018) examining the climate impacts and feasibility of limiting total global surface warming since the pre-industrial period to 1.5C instead of the more common (but equally arbitrary) 2.0C (see Section II, paragraph 21, of the Agreement).

2.0°C is theoretically possible, with or without the Paris Agreement.  It requires that the earth’s climate sensitivity be near the low end of mainstream assessments and business-as-usual economic/energy development around the world perhaps sped up a bit with a worldwide deployment of fracking technologies (see here ).

1.5°C is almost assuredly not. The world has already warmed up by about 0.9°C since about 1900 and there are probably still several tenths of a degree C of surface warming that is “baked in” the system. Those numbers add up pretty close to 1.5°C already. And, global temperatures are going to continue to rise as we emit carbon dioxide (in increasing amounts or not)—even if we expect the rise occur at a rate that is quite a bit slower than that being advertised by the world’s collection of climate models. The SCOTUS stay certainly isn’t going to help this situation.

The Paris Agreement requirement to examine a 1.5°C scenario is just wasted time and effort.  But, that pretty much goes for U.N. climate conferences in general.

 

Will Wilkinson notes that there is a libertarian argument for Bernie Sanders. I’m not sure I buy the precise point Wilkinson is making. Sanders says he wants to make the United States more like Finland, Sweden, and Denmark. And those countries do indeed rank higher than the United States in the Cato Institute’s Human Freedom Index, compiled by my colleagues Ian Vásquez and Tanja Porčnik. But Sanders wants to emulate those countries in the ways they are less free than the United States (i.e., expanding government transfers), not in the ways they are more free (taxes and regulation). I think this powerful Sanders ad featuring Eric Garner’s daughter Erica is a much better libertarian argument for Sanders.

Sanders’ record here isn’t exactly clean. The police confronted Eric Garner because they believed he was selling untaxed cigarettes. If Sanders indeed penned the below letter in 1972 (I have been unable to verify its authenticity, but it sounds like him), then he is well aware cigarette taxes disproportionately burden the poor. 

Aside from the actual tax burden, cigarette taxes also lead to hostile confrontations between citizens and police. I would like to see Sanders propose repealing the federal cigarette tax. Instead, he has voted to increase it, which increases the likelihood of such confrontations. That is probably swamped, however, by Sanders’ support for decriminalizing marijuana and regulating/taxing it like alcohol and tobacco. That would probably do even more than repealing the federal cigarette tax to reduce such confrontations between black men and the police.

If that letter is authentic, it provides other libertarian arguments for Sanders. His health care plan is not one.

.@BernieSanders pretends #MedicareForAll would reduce HC spending. In fact, it would give us Defense Dept-level waste. #CatoSOTU

— Michael F. Cannon (@mfcannon) January 18, 2016

>@BernieSanders wants everyone in a #Medicare program that wastes 1 in 3 dollars spent? A better idea: http://t.co/0eGnO3Q0js. #Cato2016

— Michael F. Cannon (@mfcannon) October 14, 2015

What’s silly about the @HillaryClinton/@BernieSanders #MedicareForAll tiff is that #ObamaCare will give us single payer in 10yrs regardless.

— Michael F. Cannon (@mfcannon) January 18, 2016

Many who can’t get mental health care are on a @VeteransHealth waiting list, @BernieSanders. Solution: http://t.co/kSKwSqtudF. #Cato2016

— Michael F. Cannon (@mfcannon) October 14, 2015

As chair of the Sen. Veterans Committe, @BernieSanders perpetuated a @VeteransHealth system that encourages war. http://t.co/kSKwSqtudF.

— Michael F. Cannon (@mfcannon) October 14, 2015

 

The United States wants Mexico to extradite Joaquin “El Chapo” Guzman, the notorious head of the Sinoloa drug cartel who was recently re-captured after his second escape from a Mexican prison.  Federal prosecutors want to try El Chapo in Brooklyn or in another city with outstanding indictments.

Does this prosecution make sense? Let’s take as given that El Chapo has broken U.S. drug laws and commissioned acts of violence on U.S. soil.  And let’s set aside whether governments should prosecute bad laws, like drug prohibition, so long as those laws remain on the books.

Even given those assumptions, U.S. prosecution of El Chapo makes little sense.  

For starters, such a prosecution would be unusually expensive because of the heightened security measures needed.

More importantly, taking drug kingpins out of circulation seems to increase rather than decrease violence, with no detectable impact on drug production or consumption.  

Thus prosecuting El Chapo accomplishes no meaningful goal, even for those who endorse prohibition; it is criminal justice theater, designed to convince the public that the authorities are “doing something.”

A few weeks ago, in a post entitled, “The Politics of Non-Political Money,” I talked about the Bitcoin blocksize debate as surfacing “politics” in the Bitcoin ecosystem. Important protocol and software development projects require people of disparate views and plans to come together over common standards and code. My thesis in that post was simply that good behavior is good politics because it builds credibility. Some differ, and many—it should be no surprise—aren’t taking my advice. But the precedents set in the blocksize debate are important for the future of Bitcoin, for other cryptocurrencies, and for similar projects that may offer alternatives to governmental monetary and administrative systems.

The politics are intense, there are ways that Bitcoin governance is like government, and proposals to fork the software are kind of like constitutional amendments. But I’m increasingly comfortable thinking of Bitcoin governance as a market phenomenon. Specifically, groups with differing visions are competing to win the favor of Bitcoin miners and nodes, so that their vision, if it prevails, can carry the Bitcoin project forward.

Brian Armstrong, CEO of Coinbase, has stepped forward recently as a strong advocate for Bitcoin Classic and a 2MB blocksize. He cites four competitors to the current dominant coding team in this slide deck. Miners and nodes will choose one software version or another. It makes no difference whether we characterize their decisions as “voting” or “buying.”

Bitcoin may have some of the strongest network effects possible because incompatible versions of the software won’t recognize each others’ blocks, transactions, or mined coins. A miner on the “minority” side of a hard fork will mine bitcoins that are incompatible with the majority side, so those coins will be less useful and naturally worth less. And as more move to the majority side, “minority” coins will rapidly approach zero value, making switching a rational imperative, to be executed quickly.

These dynamics make for a “winner take all” Bitcoin software market, and they make it very unlikely that Bitcoin will “split.” (The Verge isn’t the only news outlet to get things precisely wrong.) If a split were to happen, it would be because the cryptocurrency market was big and diverse enough for two coins, fairly seamless exchange among the two coins existed, or both of those things. That would be a little more complicated, and it’s a little ways off, but it would be the opposite of fatal.

Rancor aside, all of the things in the Bitcoin world are as they should be. The virtuous incentives that are in place are part of Bitcoin’s genius.

In saying all this, I don’t think I’m breaking any new ground, and I may be stating the technical details imperfectly, but using a “market” frame of reference is different from the norm in open source development. Open source typically draws everyone together to work on a cooperative basis. Many of the big, important open source projects happen in standards bodies, or sometimes they operate under a benevolent dictator who makes the hard calls. And forks matter less.

A watchword in traditional open source development is “consensus,” but that word does not offer a way to administer decisionmaking when there substantial, deep-running disagreement. It simply gives every participant a veto—and there are lots of vetoes out there right now.

Rather then hewing to a “consensus” norm and fretting about its violation, the competitors in the blocksize debate might think of themselves as competitors, like Coke and Pepsi. In product meetings and the boardroom, they might mutter oaths about your competition—“Vile peddlers of swill they are!” But publicly, they should be the cryptocurrency that refreshes or the Bitcoin generation. Their job is to code a great product and sell it. Probably with more merits arguments than slogans, of course. And some of the difficulty of this debate exists because customers—particularly many miners, but not only them—lack the technical and economic sophistication to know decisively what protocol and code they most want to run.

Cooperative open source development has produced many incredible products, but the spur of competition is well known to wring the very best work from people. Platform competition and a winner-take-all market is no exception. There are good arguments why Bitcoin development should happen in the same way as most other open source projects, I’m sure, but I’m inclined to prefer a level of antagonism and distrust among coding teams, because they will be the best watchdogs for the errors of each other. Competition works. Markets are more decentralized than standards bodies.

The choice is not one product or the other, of course, but among features such as blocksize limits. Here the “politics” frame seems to serve well again. The dominant Bitcoin software provider, Core, could easily use a technique that U.S. political parties use to undercut third parties: cooption. When a third party appears to be gaining a foothold, stealing the lesser party’s ideas is a perfectly legitimate method of dissipating its support. Failing to do so risks splitting the dominant party’s constituency, losing it votes and elections.

Bitcoin Core could pretty much kill off Bitcoin Classic by adopting the 2MB blocksize, and it could ensure its continued dominance. But that means withdrawing from what appears to be a rock-solid, imovable principle held by the Core team. Indeed, at times, certain writings have sounded like Core might conduct their own “whiny ragequit” if the Bitcoin blocksize changes.

Since I wrote about Bitcoin’s “politics,” Core and its members have taken steps to be more communicative, which is great. One of the most recent communications is a conciliatory post from Matt Corallo characterizing the community as agreed upon a capacity increase in Bitcoin. His post equivocates between a blocksize increase and the capacity increase available through Segregated Witness, a technique that debuted at the Hong Kong Scaling Bitcoin conference for sharply reducing the content blocks must include. But, by all appearances, this is a group working through the difficulties of compromise under growing pressure from a competitor.

Markets. Politics. Who knows? A little of both. But I’ve recently been reviewing the history of the U.S. Constitution and thinking in terms of parallels. When the Framers met in Philadelphia in 1787, they placed themselves under a strict rule of secrecy so that their deliberations could be orderly and frank. They debated through the hot summer, and there was lots of give and take, even on principles of the highest order, such as the rights of certain classes of humans to life, liberty, and property. Imperfect though it was, what emerged from the constitutional convention was, I think, the greatest charter for government yet devised.

The Bitcoin blocksize debate is a little like that. While creating an incredibly valuable, fully decentralized monetary system, Bitcoin and the blockchain may allow fully equal self-government across large swaths of human activity—a vast improvement on political democracy (credit: Samuel Patterson). So it’s a debate of constitutional significance, and greater-than-constitutional proportion. The difference is that this debate is being held online in 2016. It’s radically transparent, and authority to build this system of self-government is not reserved to the wealthy, well-educated, or well-connected. It’s decentralized and available to all. So the Bitcoin blocksize debate is just like the U.S. Constitutional Convention of 1787, except it’s market-based—with trolls!

Monday, February 22, will be the anniversary of George Washington’s birth, although the federal government in typical federal government fashion has instructed us to observe Washington’s Birthday (not Presidents’ Day) on a convenient Monday sometime before the actual date. There’s a reason that we should celebrate George Washington rather than a panoply of presidents. 

wrote this several years ago:

George Washington was the man who established the American republic. He led the revolutionary army against the British Empire, he served as the first president, and most importantly he stepped down from power. 

John Trumbull, “General George Washington Resigning His Commission”

In an era of brilliant men, Washington was not the deepest thinker. He never wrote a book or even a long essay, unlike George Mason, Thomas Jefferson, James Madison, Alexander Hamilton, and John Adams. But Washington made the ideas of the American founding real. He incarnated liberal and republican ideas in his own person, and he gave them effect through the Revolution, the Constitution, his successful presidency, and his departure from office.

What’s so great about leaving office? Surely it matters more what a president does in office. But think about other great military commanders and revolutionary leaders before and after Washington—Caesar, Cromwell, Napoleon, Lenin. They all seized the power they had won and held it until death or military defeat.

John Adams said, “He was the best actor of presidency we have ever had.” Indeed, Washington was a person very conscious of his reputation, who worked all his life to develop his character and his image.

In our own time Joshua Micah Marshall writes of America’s first president, “It was all a put-on, an act.” Marshall missed the point. Washington understood that character is something you develop. He learned from Aristotle that good conduct arises from habits that in turn can only be acquired by repeated action and correction – “We are what we repeatedly do.” Indeed, the word “ethics” comes from the Greek word for “habit.” We say something is “second nature” because it’s not actually natural; it’s a habit we’ve developed. From reading the Greek philosophers and the Roman statesmen, Washington developed an understanding of character, in particular the character appropriate to a gentleman in a republic of free citizens.

What values did Washington’s character express? He was a farmer, a businessman, an enthusiast for commerce. As a man of the Enlightenment, he was deeply interested in scientific farming. His letters on running Mount Vernon are longer than letters on running the government. (Of course, in 1795 more people worked at Mount Vernon than in the entire executive branch of the federal government.)

He was also a liberal and tolerant man. In a famous letter to the Jewish congregation in Newport, Rhode Island, he hailed the “liberal policy” of the United States on religious freedom as worthy of emulation by other countries. He explained, “It is now no more that toleration is spoken of as if it were the indulgence of one class of people that another enjoyed the exercise of their inherent natural rights, for, happily, the Government of the United States, which gives to bigotry no sanction, to persecution no assistance, requires only that they who live under its protection should demean themselves as good citizens.”

And most notably, he held “republican” values – that is, he believed in a republic of free citizens, with a government based on consent and established to protect the rights of life, liberty, and property.

From his republican values Washington derived his abhorrence of kingship, even for himself. The writer Garry Wills called him “a virtuoso of resignations.” He gave up power not once but twice – at the end of the revolutionary war, when he resigned his military commission and returned to Mount Vernon, and again at the end of his second term as president, when he refused entreaties to seek a third term. In doing so, he set a standard for American presidents that lasted until the presidency of Franklin D. Roosevelt, whose taste for power was stronger than the 150 years of precedent set by Washington.

Give the last word to Washington’s great adversary, King George III. The king asked his American painter, Benjamin West, what Washington would do after winning independence. West replied, “They say he will return to his farm.”

“If he does that,” the incredulous monarch said, “he will be the greatest man in the world.”

I talked about George Washington in this Cato Daily Podcast in 2007.

As I noted last week, Los Angeles is not the only region experiencing declining transit ridership. Another is Washington, DC, where a recent report from the Washington Metropolitan Area Transit Authority (WMATA aka Metro) revealed that ridership has fallen to the lowest level since 2004. Ominously, the agency’s financial situation is so bad that it has hired a bankruptcy attorney to help it deal with its problems and is reshuffling its top management, forcing at least one executive to retire.

As detailed in the actual report to the agency’s board, rail revenues and ridership in the first half of F.Y. 2016 are both down by 7 percent from the same period in F.Y. 2015. Metrorail ridership peaked in 2009, and if the second half of F.Y. 2016 is as bad as the first, annual ridership will be down as much as 30 percent from that peak despite a 15 percent increase in the region’s population. Bus ridership and revenue in 2016 is also down but by only about 3 percent below 2015.

Metro rail’s ridership declines, continued the report, are due to declining service reliability. Median travel times, the unpredictability of travel times, and the frequency of major service delays have all increased.

The report doesn’t say so, but a large part of the problem can be attributed to the construction of the Silver Line in Virginia. Since the Silver and Blue lines share the same tracks in DC and the Blue Line was already operating at full capacity, opening the Silver Line forced the agency to reduce service on the Blue Line, which quite possibly lost it more Blue Line customers than it gained on the Silver Line. The cost of operating the Silver Line also diverted resources away from needed maintenance of the older lines. The decline in bus ridership probably represents people who rode both train and bus who gave up transit due to these problems.

Anecdotal evidence provided by comments and tweets on WMATA news reports suggests that a lot of DC-area residents have permanently given up on transit. “Eliminating WMATA from my day is the best decision I could have made for improving quality of life,” says one. “I stopped riding and started driving in June,” says another. “Parking costs more but there were huge delays weekly on metro, no reliability.” “The decision to avoid WMATA is simple,” observes a third. “It’s cheaper and over twice as fast for me to drive vs taking the new silver line.”

To make matters worse, a train operator ran a red light last week and almost collided with a train going in the opposite direction. Metro train used to be run partly by computer, but since the fatal 2009 crash that resulted from computer failure, Metro hasn’t trusted the computer system and relied instead on human operators controlling speeds and braking. But an FTA report last December found that train operators have run at least 47 red lights in the past four years.

The reliability problems have led WMATA’s deputy general manager, Rob Troup, to resign in disgrace and the agency is reshuffling its top management. Troup is not the first WMATA executive to resign due to failure to fix the system’s problems, and he probably won’t be the last.

Since the trains bring in nearly three-fourths of the agency’s fares, the decline in revenues seriously impacts WMATA’s budget. This may be one reason why WMATA has hired Kevyn Orr, the bankruptcy lawyer who guided Detroit through its bankruptcy. One of the things Orr will need to do is help WMATA deal with its $2.5 billion unfunded pension and health care liability, which will add considerably to its woes in the near future.

WMATA’s troubles will soon be replicated in many other cities. Many transit agencies, including those in Boston, Buffalo, New York, Pittsburgh, and Portland, have even more unfunded obligations (when measured as a share of operating revenues) than Washington’s. Few transit agencies that built rail lines since the 1980s have budgeted enough money for maintenance. Back in 2010, the FTA found that America’s rail transit systems suffer from a $60 billion maintenance backlog, a number that has probably greatly increased as agencies aren’t spending enough money to keep up with deterioration, much less reverse the problem.

I’ve written exhaustively about this administration’s sheer statistical failure at the Supreme Court. It has the worst record of any modern presidency, whether you count in absolute won-loss – where the solicitor general’s office struggles to get to 50 percent, against a historical norm of 70 percent – or by unanimous losses alone.

While we’re still in the part of the Court’s term before the decisions start flying fast and furiously, I thought I’d present the latest update on where we stand with respect to those unanimous losses, where President Obama doesn’t even get the votes of the two justices he appointed. Here are the stats:

  • In the first 6.5 years of Obama’s presidency (January 2009 to June 2015), the government lost unanimously at the Supreme Court 23 times, an average of 3.62 cases per year.
  • In all 8 years of George W. Bush’s presidency, the government lost unanimously 15 times (1.875 cases per year).
  • In all 8 years of Bill Clinton’s presidency, the government lost 23 times (2.875 cases per year).
  • In other words, Obama has lost unanimously twice as often as Bush and 1.5 times as often as Clinton. Obama also passed Bush’s 8-year total in less than 5 years.
  • The Justice Department’s unanimous loss rate from 2012 to 2014 was especially bad – 13 cases in 30 months – almost three times Bush’s overall rate and almost twice Clinton’s (and that doesn’t count amicus litigating positions with unanimous losses).

For the record, here are the unanimous losses in the last four terms, so we can reminisce about the greatest hits (cases in which Cato filed marked with an asterisk):

  • 2012 (4 cases): United States v. Jones*; Sackett v. EPA*; Hosanna-Tabor v. EEOC; Arizona v. United States
  • 2013 (5 cases): Gabelli v. SEC*; Arkansas Fish & Game Commission v. United States*; PPL Corp v. Commissioner of Internal Revenue*; Horne v. USDA*; Sekhar v. United States
  • 2014 (4 cases): Burrage v. United States; Bond v. United States*; Riley v. California*; Noel Canning v. NLRB*
  • 2015 (3 cases): Mach Mining v. EEOC; Henderson v. United States; McFadden v. United States

These cases have nothing in common, other than the government’s view that federal power is virtually unlimited: Citizens must subsume their liberty to whatever the experts in a given field determine the best or most useful policy to be. If the government can’t get even one justice to agree with it on any of these unrelated cases, it should realize there’s something seriously wrong with its constitutional vision. 

And so, as we look ahead to the opinions due to come down this spring and summer, keep in mind that if the government loses, it won’t be because its lawyers had a bad day in court or because the justices ruled based on their political preferences. It will be because the Obama administration continues to make legal arguments that don’t pass the smell test.

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