Policy Institutes

Illinois law mandates that non-union public-sector workers like Mark Janus pay money for union collective-bargaining activities that they do not support. Collective bargaining in the public-sector often involves advocacy of quintessentially political questions, such as the amount of public worker wages, pensions, and other benefits that will be paid for with the public’s tax money. Thus, these government-compelled exactions—“agency fees”—give these workers a Hobson’s choice: Either sacrifice your First Amendment rights and fund political advocacy you may not like, or find other employment.

The Supreme Court upheld the constitutionality of these fees in Abood v. Detroit Board of Education (1977), but has since questioned Abood’s reasoning in Knox v. SEIU (2012) and Harris v. Quinn (2014). Two terms ago, the Court in Friedrichs v. California Teachers Association (2016) seemed primed to overrule Abood, but the untimely passing of Justice Antonin Scalia left the Court to split 4-4 on the question. This case deals with the same question that was presented in Friedrichs: Should Abood be overruled and public-sector agency-fee arrangements be declared unconstitutional? Following the Abood precedent, a federal district court understandably dismissed Janus’s case, which ruling the U.S. Court of Appeals for the Seventh Circuit quickly upheld. Cato and the National Federation of Independent Business Small Business Legal Center are now supporting Janus in petitioning the Supreme Court to reconsider Abood once again. We focus on the embedded issue of whether stare decisis—a doctrine that argues for generally letting precedent lie even if wrong—should prevent the Court from overruling Abood.

Stare decisis is a prudential policy designed to promote predictable and consistent legal principles, not a mandatory edict to blindly follow past decisions. This is especially true in cases involving constitutional rights. Indeed, the Supreme Court has repeatedly held that stare decisis is at its lowest ebb when constitutional rights are at stake, because it is exceptionally difficult—if not impossible—to correct constitutional cases. Moreover, judges can get the law wrong. And when past judges or courts get the law wrong, current judges and courts have a duty to correct misapplications of the law. This is what happened in Abood. The Supreme Court has made clear in subsequent cases that when government majorities compel people to subsidize speech with which they disagree, those laws are subject to the highest form of judicial scrutiny—which the rationales put forth in Abood cannot overcome. Furthermore, Abood doesn’t even meet the traditional justifications for applying stare decisis. These factors—including whether reliance interest have built up around the decision, and whether the decision has become unworkable—favor overruling Abood. No one relies on having their First Amendment rights abridged and it is nearly impossible to draw a line between what’s political and what’s not in public-sector collective bargaining. Abood has caused serious infringement of people’s core constitutional rights for over 40 years. In that time, millions of public workers have had millions of dollars taken from them to further causes that they don’t support.

The Supreme Court should take this case and reaffirm that the First Amendment protects against compelled speech and association of this kind.

I receive lots of daily health-policy newsletters. This morning, one of them exhibited an all-too-common misunderstanding and bias about how health-insurance markets work.

The setting is the “Consumer Freedom Amendment” Sen. Ted Cruz (R-TX) has offered to the Senate GOP’s bill to rewrite ObamaCare. Contrary to what the Republican Party has pledged for seven yearsa pledge that presidential candidate Donald Trump even put in writingthe Senate bill would not repeal the health-insurance regulations that are behind ObamaCare’s rising premiums, race-to-the-bottom coverage, and collapsing insurance markets. The Cruz amendment would keep those regulations on the books, but allow consumers to purchase insurance that does not include all of ObamaCare’s hidden taxes and coverage mandates. In effect, it would separate the market. Currently healthy enrollees would opt for the lower-cost “Freedom Option” coverage, which would stay with them once the developed expensive illnesses. Currently sick enrollees would opt for ObamaCare-compliant plans. Premiums for ObamaCare-compliant plans would rise even more than they already have, essentially turning ObamaCare’s Exchanges into high-risk pools that would require lots of government subsidies to keep afloat.

Enter one of my daily newsletters, which matter-of-factly reported:

Of course, everyone paying into the system for those who most need care is the way insurance is fundamentally supposed to work.

Of course! I hear this sort of thing all the time. Now, there is a charitable interpretation that would render this particular phrasing just barely true, but I am fairly sure that interpretation is not what the author intended to convey. Instead, the sentence glosses over a distinction so crucial that entire insurance markets hang in the balance. And it does so in a way that presents the (legitimately disputed and controversial) pro-ObamaCare ideology as an of-course-this-is-fundamentally-true fact.

Fundamentally, insurance markets are a system of subsidies. People with the same ex ante (i.e., before-the-fact) risk of needing medical care pay into the system to subsidize the few in that group who will develop expensive medical needs. We know insurance is supposed to work this way, because of what happens when you try to pool together people with different ex ante health risks at the same premium: the system of subsidies collapses. (See: state-level experiments with community rating, ObamaCare’s CLASS Act, the child-only market under ObamaCare, U.S. territories under ObamaCare, and Exchanges in dozens of counties). Risk-based premiums, exclusions for preexisting conditions, and other measures that ObamaCare supporters hate are actually consumer protections. They exist to keep that system of subsidies stable, so it can keep doing the most good possible by subsidizing people who become sick.

The idea that everyone should pay the same premium regardless of risk arises because left-of-center folks want to cram additional, hidden subsidies into the insurance system. They want to do this rather than create explicit taxes and transfers because, as Jonathan Gruber taught us, there is not sufficient political support for explicit taxes and transfers. But again, when you force insurers to cover unlike risks at the same premium, insurance markets collapse. So ObamaCare throws tons of money at insurers—with everything from the individual mandate to risk-adjustment—in the hope of preventing a collapse. Sometimes it prevents a collapse. Sometimes, not so much.

The above sentence therefore amounts to saying, “Insurance is fundamentally supposed to work exactly like ObamaCare supporters want, with mandates and lots of government subsidies, not like its opponents say.”

That’s what the news tells me, anyway.

Broadway Journal reports that theater professionals are very concerned about the Trump administration’s no-doubt-idle threats to defund the National Endowment for the Arts:

“It’s important money for us,” said Jeffory Lawson, the managing director of the Chelsea-based Atlantic Theater Co. As with any lost funding, replacing those grants would be challenging, he said. And beyond dollars, the NEA confers a stamp of approval for a project, which is appealing to other donors. It’s “a highly competitive grant application,” he said, that’s reviewed and rated largely by theater professionals. “It’s not just a bureaucrat making a decision.” (The NEA claims that $9 in private donations follow every $1 it grants.)

I don’t know why people who prize their independence, and are very proud these days to be defying the government in their plays and public comments, are so eager for a “stamp of approval” from that very government. In fact, I’ve written about that problem before, such as in this 1995 speech to the Delaware Center for Contemporary Arts:

Government funding of anything involves government control. That insight, of course, is part of our folk wisdom: “He who pays the piper calls the tune.” “Who takes the king’s shilling sings the king’s song.”

Defenders of arts funding seem blithely unaware of this danger when they praise the role of the national endowments as an imprimatur or seal of approval on artists and arts groups. Jane Alexander says, “The Federal role is small but very vital. We are a stimulus for leveraging state, local and private money. We are a linchpin for the puzzle of arts funding, a remarkably efficient way of stimulating private money.” Drama critic Robert Brustein asks, “How could the NEA be ‘privatized’ and still retain its purpose as a funding agency functioning as a stamp of approval for deserving art?”

In 1981, as conservative factions battled for control of the National Endowment for the Humanities, Richard Goldstein of the Village Voice explained the consequences this way:

The NEH has a ripple effect on university hiring and tenure, and on the kinds of research undertaken by scholars seeking support. Its chairman shapes the bounds of that support. In a broad sense, he sets standards that affect the tenor of textbooks and the content of curricula….Though no chairman of the NEH can single-handedly direct the course of American education, he can nurture the nascent trends and take advantage of informal opportunities to signal department heads and deans. He can “persuade” with the cudgel of federal funding out of sight but hardly out of mind.

I suggest that that is just the kind of power no government in a free society should have….

On NPR this morning, an activist complained …  saying, “My ancestors didn’t fight for the concept of official history in official museums.” But when you have official museums, or a National Endowment for the Arts serving as a “seal of approval” for artists, you get official history and official art—and citizens will fight over just which history and which art should have that imprimatur.

“Stamp of approval,” “ripple effect,” “ ‘persuade’ with the cudgel of federal funding”—all of this is asking the federal government to pick winners, not just in automobile or energy companies, but in art and literature. Is that really a model for independent artists?

 

I was wrong. When the Every Student Succeeds Act passed in late 2015, I identified two ambiguities I thought were most ripe for exploitation to keep the federal boot hovering over public schools: the requirement that states have “challenging” curricular standards and that standardized tests be given “much greater” weight in accountability systems than non-academic measures.

Certainly, DC may still seize upon these words to extend control. But according to a Friday New York Times report, it is the law’s call for “ambitious” student performance goals—a term not defined in statute—that the Trump administration, which I thought would be highly deferential to states (wrong again!), is citing to reject state plans:

In the department’s letter to Delaware—which incited the most outrage from conservative observers—[Acting Assistant Secretary for Elementary and Secondary Education Jason] Botel took aim at the state’s plan to halve the number of students not meeting proficiency rates in the next decade. Such a goal would have resulted in only one-half to two thirds of some groups of students achieving proficiency, he noted.

The department deemed those long-term goals, as well as those for English-language learners, not ambitious, and directed the state to revise its plans to make them more so.

And so we remain pretty much where we were under the Obama administration in education, and where we are with every law that leaves it to regulatory agencies to fill in the meaning of crucial terms: with states, localities, and the people at the mercy of bureaucrats and secretaries. Government increasingly of men and not laws.

Alas, this bureaucratically dictatorial state of affairs is okay with some people in DC. In an exchange this weekend, a former Obama administration spokesman lauded the regulatory process as a “transparent” and “consistent” way to “fill in the blanks left by the law”:

If only there were some process by which the federal government could fill in the blanks left by the law in a transparent, consistent way

— Matt Lehrich (@mattlehrich) July 7, 2017

Really? I sure can’t see how the regulatory process is “transparent” in any meaningful sense. Here is the web page to follow the ESSA regulatory process, and here is the “Notice of Final Regulation” for just one part of the ESSA. Read it all over. Now imagine every parent—with a full-time job, soccer practices to get the kids to, maybe even a desire for some leisure time—trying to read and influence every regulation for ESSA.

Done imagining? The painful reality, of course, is that making law by regulation is even more beyond the ability of an average American to follow and influence than the writing of actual laws. The ESSA itself is almost 400 single-spaced pages long.

Loads of atrocious problems are at work here—no apparent concern for whether the governed can know and understand the laws governing them; legislators sloughing off their responsibilities to bureaucrats—but underlying it all has been widespread disregard for the Constitution and its clear delegation of only specific, enumerated powers to the federal government, none of which mention education.

I was wrong about the specific opening by which the ESSA might be used to maintain federal control over the nation’s public schools. But in stating that federal control is itself unconstitutional, and rule by bureaucrats especially egregious, I remain clearly in the right.

Great moments in public employee unionism, as recorded in the Battle Creek (Mich.) Enquirer

A battle is brewing at Western Michigan University this summer between a group of hungry goats and a labor union.

The 400-member American Federation of State, County and Municipal Employees has filed a grievance contending that the work the goats are doing in a wooded lot is taking away jobs from laid-off union workers.

A spokeswoman said the university had brought in a crew of the nimble-footed ruminants “to clear undergrowth in a woodlot, much of it poison ivy and other vegetation that is a problem for humans to remove….Not wanting to use chemicals, either, we chose the goat solution to stay environmentally friendly.”

The goats are already ahead of schedule in their task of clearing 15 acres before the fall semester – unless the National Labor Relations Board gets mad and decides to charge in.

A year ago in this space I discussed one of the more disturbing things then-candidate Donald Trump was saying on the campaign trail, his threats against the business interests of Washington Post owner Jeff Bezos, whose paper has been consistently critical of Trump. Trump mentioned tax and antitrust as issues on which Amazon, the company founded by Bezos, might find its status under review. I quoted Wall Street Journal columnist Holman Jenkins: “Mr. Trump knows U.S. political culture well enough to know that gleefully, uninhibitedly threatening to use government’s law-enforcement powers to attack news reporters and political opponents just isn’t done. Maybe he thinks he can get away with it.” 

Mr. Trump is now fighting a very public grudge match against cable network CNN, which as it happens is one of the enterprises affected by the pending AT&T-Time Warner merger. (Time Warner is CNN’s parent company.)  During the campaign, Trump criticized the merger, but in March he nominated to head the Department of Justice’s antitrust division Makan Delrahim, a veteran antitrust lawyer who seemed to take a more benign view. “The sheer size of it, and the fact that it’s media, I think will get a lot of attention,” Delrahim had said in an interview on Canadian TV in October, before the election. “However, I don’t see this as a major antitrust problem.”

On Wednesday the New York Times reported that some close to the President, at least, were looking at options: 

White House advisers have discussed a potential point of leverage over their adversary, a senior administration official said: a pending merger between CNN’s parent company, Time Warner, and AT&T. Mr. Trump’s Justice Department will decide whether to approve the merger, and while analysts say there is little to stop the deal from moving forward, the president’s animus toward CNN remains a wild card.

And then yesterday Alex Pfeiffer of the Daily Caller reported

The White House does not support the pending merger between CNN’s parent company Time Warner and AT&T if Jeff Zucker remains president of CNN, a source familiar with President Trump’s thinking told The Daily Caller.

Maybe reports based on unnamed sources are better ignored. Or maybe they’ll prove accurate, and we’re facing a White House that – like the late Sen. Edward Kennedy of Massachusetts, or disgraced Illinois Gov. Rod Blagojevich – is not above using the resources of government in an effort to oust owners or editors from unfriendly press outlets.

Either way, I’ll repeat what I wrote in this space five years ago: 

One moral is that we cannot expect our First Amendment to do the whole job of protecting freedom of the press. Yes, it repels some kinds of incursions against press liberty, but it does not by its nature ward off the danger of entanglement between publishers and closely regulated industries, stadium operators, and others dependent on state sufferance. That’s one reason there’s such a difference in practice between a relatively free economy, where most lines of business do not require cultivating the good will of the state, and an economy deeply penetrated by government direction, in which nearly everyone is subject to (often implicit) pressure from the authorities. 

The Trump administration’s approach to North Korea’s nuclear weapons and ballistic missile development has been almost exclusively an emphasis on military confrontation. The latest eruption of escalatory actions and rhetoric is in keeping with the norm.

Following Pyongyang’s successful testing of an inter-continental ballistic missile (ICBM) this week, Trump referenced “some pretty severe things that we are thinking about” in response. Gen. Vincent K. Brooks, commander of U.S. forces in South Korean, warned ominously that “it would be a grave mistake for anyone” to doubt our willingness to use military force in response to North Korean “provocation.” UN Ambassador Nikki Haley said in a statement that we will use “our considerable military forces…if we must, but we prefer not to have to go in that direction.” Finally, U.S. and South Korean forces “fired a barrage of guided-missiles into the ocean” off the east coast of the Korean Peninsula, as a show of force.

Many Americans believe the hardline approach to North Korea is wise because peaceful negotiations, in Eli Lake’s words, have been used by Pyongyang “to buy time and extract concessions from the West.” Diplomacy doesn’t work on the intransigent North Korea, we’re told.

But that conflicts with the historical record. According to Stanford University’s Siegfried S. Hecker, the record from the Bill Clinton and George W. Bush administrations shows that “Pyongyang was willing to slow its drive for nuclear weapons” but “only when it believed the fundamental relationship with the United States was improving, but not when the regime was threatened.”

This is a crucial point. For decades, Washington’s general approach has involved economic sanctions, military encirclement, and regular threats of preventive war. In this environment, and without good faith overtures from Washington, North Korea is going to continue to insist on having the ability to deter invasion or attack by the United States or its allies.

We came close  to real progress in the 1990s. The imperfect “Agreed Framework,” struck by Pyongyang and the Clinton administration, froze Pyongyang’s nascent nuclear program and opened it up to inspections in exchange for economic and diplomatic concessions from Washington. It held promise of sustainable de-escalation.

But problems arose. In Hecker’s retelling, the agreement:

was opposed immediately by many in Congress who believed that it rewarded bad behavior. Congress failed to appropriate funds for key provisions of the pact, causing the United States to fall behind in its commitments almost from the beginning. The LWR [light-water reactor] project also fell behind schedule because the legal arrangements were much more complex than anticipated. The Agreed Framework, which began as a process of interaction and cooperation, quickly turned into accusations of non-compliance by both parties.

Nevertheless, the Agreed Framework continued to be the basis for constructive diplomacy. According to Mike Chinoy, a senior fellow at the University of South California’s U.S.-China Institute, “Despite North Korean frustration at U.S. delays in providing much of the promised assistance, the political thaw reached a high point in 2000” when the two countries issued a joint communique “pledging that neither would have ‘hostile intent’ towards the other.” Chinoy continues:

Then Bush took office. After a review of Korea policy, Bush declined to reaffirm the communique pledging “no hostile intent.” Meanwhile, leading conservatives in his administration — Vice President Dick Cheney, Defense Secretary Donald Rumsfeld, Undersecretary of State John Bolton and others — actively sought to torpedo the Agreed Framework. The president labeled North Korea a member of the “axis of evil,” along with Iran and Iraq. In mid-2002, a U.S. intelligence determination that North Korea had taken initial steps to acquire the capability to make a uranium bomb was used by the conservatives as an excuse for Washington to pull out of the 1994 framework deal.

In the following months, Kim watched as U.S. troops toppled Saddam Hussein while the Bush administration, in the name of the “war on terror,” expounded a doctrine of regime change for rogue states. Rumsfeld formally proposed making regime change in Pyongyang official U.S. policy, while Bolton warned Kim to “draw the appropriate lesson” from Iraq.

With the Bush administration’s abrogation of the Agreed Framework, North Korea announced its withdrawal from the Nuclear Non-Proliferation Treaty, kicked out inspectors, and became determined to obtain deliverable nuclear weapons in order to avoid the fate of Iraq’s Saddam Hussein, and later Libya’s Muammar Gadhafi.

Would Pyongyang have permitted improved relations with the U.S. and South Korea and forfeited its nuclear ambitions under sustained diplomacy? It’s hard to say. The Bush administration suspected early on that North Korea was exploring uranium enrichment, which would have violated the spirit but not the letter of the Agreed Framework. But the fundamental issue is that North Korea’s perception of its threat environment is existential. They believe – not without reason – that the survival of the regime is at risk unless they possess a credible nuclear deterrent.  

Given the progress they have now made, de-nuclearization is no longer really in the cards. Nor is there a viable military option (even a minor surgical strike is expected to unleash a massive war involving potentially a million deaths, and that’s if it doesn’t go nuclear). The United States must simply learn to live with a nuclear North Korea. Diplomatic efforts should focus on de-escalation measures, as recently suggested by Russia and China, and freezing Pyongyang’s weapons development where it is, in exchange for economic and diplomatic concessions from the U.S.

But before any of that, we need to get beyond this myth that diplomacy isn’t an option. 

The House of Representatives recently passed the No Sanctuary for Criminals Act (H.R. 3003) and Kate’s Law (H.R. 3004) to tighten immigration enforcement in response to the fear that illegal immigrants are especially likely to commit violent or property crimes.  Both laws stem from the tragic 2015 murder of Kate Steinle by an illegal immigrant named Juan Francisco Lopez-Sanchez after he had been deported multiple times. 

Debates on the House floor over both bills veered into the social science of immigrant criminality.  The majority of research finds that immigrants are less likely to be incarcerated than natives and that increases in their population in local areas are correlated with lower crime rates – even for illegal immigrants.

Despite that wealth of empirical evidence, a two-year-old Fox News piece entitled “Elusive Crime Wave Data Shows Frightening Toll of Illegal Immigrant Criminals” by investigative reporter Malia Zimmerman was offered as evidence of illegal immigrant criminality.  Ms. Zimmerman’s piece makes many factual errors that have misinformed the public debate over Kate’s Law and the No Sanctuary for Criminals Act.  Below, I quote from Ms. Zimmerman’s piece and then respond by describing her errors and what the actual facts are.

“Statistics show the estimated 11.7 million illegal immigrants in the U.S. account for 13.6 percent of all offenders sentenced for crimes committed in the U.S. Twelve percent of murder sentences, 20 percent of kidnapping sentences and 16 percent of drug trafficking sentences are meted out to illegal immigrants.”

Ms. Zimmerman writes that those statistics are for “crimes committed in the U.S.” but they are actually only for some federal sentences in 2014 and not nationwide figures according to a report by the U.S. Sentencing Commission that is the primary source of these figures.  Prisoners incarcerated in federal prisons account for roughly 10 percent of all prisoners in the United States while the other 90 percent are held in state and local prisons and jails for being convicted of breaking state and local laws.  Illegal immigrants convicted of an immigration offense are held in federal prison.  Thus, illegal immigrants are overrepresented in federal prison because the federal government enforces immigration laws but only a small fraction of all those incarcerated for “crimes committed in the U.S.” are in federal prisons.  

Ms. Zimmerman’s claim that 12 percent of murder sentences were meted out to illegal immigrants in 2014 shows just how misleading it is to rely on partial federal data to make a point about nationwide crime.  This U.S. Sentencing Commission lists only 75 murderers sentenced to federal prison in 2014, a mere 0.5 percent of the 14,249 nationwide murders committed that year in the United States.  Of those 75 murderers, Zimmerman claimed that nine were illegal immigrants.  The small number of murderers sentenced to federal prison are not representative of the other 99.5 percent of murders elsewhere in the same year and certainly don’t prove that illegal immigrants are more likely to be criminals.  The federal government does not convict many people for murder, kidnapping, or drug trafficking because those are primarily the purviews of state and local governments.  The figures for kidnapping and drug trafficking are similarly unrepresentative because they are only for federal sentences and not those sentences to state or local incarceration.

Furthermore, it appears that Ms. Zimmerman just copied these numbers from a Breitbart blog post written by Caroline May on July 7th, 2015 despite her claim that “FoxNews.com did review reports from immigration reform groups and various government agencies, including the U.S. Census Bureau, U.S. Sentencing Commission, Immigration and Customs Enforcement, the Government Accountability Office, the Bureau of Justice Statistics and several state and county correctional departments.”  Ms. May claims to have information that parses the U.S. Sentencing Commission by the legal status of the immigrant offender but it is not publicly available.  Regardless, Ms. May did clearly state that the U.S. Sentencing Commission “data only deals with federal offenders sentenced under the Sentencing Reform Act of 1984 (SRA) and does not include other categories like state cases, death penalty cases, or ‘cases initiated but for which no convictions were obtained, offenders convicted for whom no sentences were yet issued, and offenders sentenced but for whom no sentencing documents were submitted to the Commission [emphasis added].’”  Ms. Zimmerman should have also included that vital detail.  

“In the most recent figures available, a Government Accountability Office report titled, ‘Criminal Alien Statistics,’ found there were 55,000 illegal immigrants in federal prison and 296,000 in state and local lockups in 2011.”

Ms. Zimmerman misread the GAO report in several places.  First, she got the years wrong.  The 55,000 figure is the number of criminal aliens incarcerated in federal prison in 2010, not 2011.  The 296,000 criminal alien incarcerations in state prisons and local jails is for 2009, not 2011. 

Second, Ms. Zimmerman misreported the definition of a criminal alien which she claimed were all illegal immigrants.  The GAO report claims that there were 55,000 criminal aliens in federal prison in 2010 and it defines criminal aliens as “[n]oncitizens who are residing in the United States legally or illegally and are convicted of a crime.”  This is an important distinction because there were about 22.5 million foreigners living in the United States in 2010 without citizenship but only about half of them were illegal immigrants.  By lumping them together, Ms. Zimmerman makes illegal immigrants seem more crime prone and legal immigrants less crime prone. 

Third, the 296,000 figure was the estimated total number of incarcerations of illegal immigrants over the course of the entire year of 2009, not the number of illegal immigrants incarcerated.  An example will help illustrate this point: If a criminal alien was incarcerated for 10 short sentences, released after each one, and then incarcerated after each one then that single alien would account for 10 incarcerations under the SCAAP figure. 

The American Community Survey (ACS) reports the number of incarcerated immigrants at a specific time.  For instance, in 2009 the ACS reported that there were 162,579 criminal non-citizen aliens incarcerated in federal, state, and local adult correctional facilities – almost half of the 296,000 incarcerations under SCAAP.  Thus, the total number of people incarcerated over the course of a year is very different from the number of prisoners incarcerated at any one time.  Virtually everyone reporting the number of prisoners or those incarcerated in the United States at any given time uses the ACS method of focusing on a slice of time. 

The GAO reports that there were 160,348 American citizens incarcerated alongside the 54,718 criminal aliens in federal prison in 2010.  The Bureau of Justice Statistics reports different figures of 179,435 American citizens incarcerated alongside 30,336 criminal aliens.  Historical Bureau of Prison data is unavailable but there were about 40,000 criminal aliens incarcerated in May 2017 alongside 147,419 U.S. citizen prisoners.          

“Hundreds of thousands of illegal immigrant criminals are being deported. In 2014, ICE removed 315,943 criminal illegal immigrants nationwide, 85 percent of whom had previously been convicted of a criminal offense.”

Ms. Zimmerman again misunderstood and misquoted these statistics.  Only 56 percent of ICE’s 315,943 removals in 2014 were previously convicted of a crime, not the 85 percent that she wrote.  She misunderstood page seven of the 2014 ICE report on removals.  That report does state that 85 percent of all removals from the interior of the United States had previously been convicted of a crime.  However, ICE only removed 102,224 people from the interior of the United States that year while the rest were removals of unlawful immigrants apprehended at the border. 

Many of the previous criminal convictions were for immigration offenses and not violent and property crimes.  The 2014 ICE report stated that they “conducted 213,179 removals of recent border crossers.  Many of those apprehended along the border had prior criminal or civil immigration violations in the United States.” 

“[A]n internal report compiled by the Texas Department of Public Safety … showed that between 2008 and 2014, noncitizens in Texas – a group that includes illegal and legal immigrants – committed 611,234 crimes, including nearly 3,000 homicides.”

That quote is maddeningly unspecific and the original report is unavailable.  Facts about the Texas Department of Public Safety (DPS) report come from this blog written by J. Christian Adams at PJ Media but that sheds little light.  I found a similar blurb published on the Texas DPS website that describes similar-looking statistics over different years and what the numbers actually mean.  If that blurb and the missing Texas DPS report reported statistics in the same way then the “611,234 crimes, including nearly 3,000 homicides” are actually a count of the total number of lifetime charges filed against all of the noncitizens arrested in Texas from 2008 to 2014.  They are not a count of the total number of crimes committed by illegal immigrants from 2008 to 2014.  Thus, a hypothetical noncitizen charged with a dozen different homicides but who was never actually convicted and who was arrested between 2008 and 2014 would account for 12 out of the 3000 homicide charges.  Only a fraction of the charges mentioned in the blurb actually resulted in convictions which is likely the case with the unavailable Texas DPS report too.  If the Texas DPS report presented its statistics in the same way as the updated Texas DPS blurb then noncitizens did not commit “nearly 3,000 homicides” from 2008 to 2014. 

In 2014, non-citizens were about 10.9 percent of Texas’ population.  From 2008 to 2014, The FBI’s Uniform Crime Report (UCR) system records 8,551 murders in the state of Texas.  If Ms. Zimmerman’s characterization of the data is correct then non-citizens would have committed 35 percent of all homicides in the state during that time period despite being only about 11 percent of the population – which would be shocking if there was any evidence to back it up.

Ms. Zimmerman’s plethora of factual errors should be corrected in her Fox News piece before they further misinform the public and Capitol Hill.  Ms. Zimmerman is correct that federal and state governments do not consistently record the number of incarcerated illegal immigrants – and that should change – but her numerous errors in interpreting government documents and other bloggers have compounded the harm done by poor government record keeping.     

A new document received by ProPublica under a Freedom of Information Act request demonstrates that the U.S. Immigration and Customs Enforcement (ICE) has adopted a policy that conflicts with both President Trump’s executive order (EO) and public Department of Homeland Security (DHS) guidelines on immigration enforcement. I commented for the story, which you can read here.

The bottom line is that the memo shows that for months, ICE has been requiring agents to arrest all unauthorized immigrants whom they “encounter,” regardless of whether they are otherwise priorities for removal. Previously, ICE had admitted that it sometimes arrests non-prioritized immigrants, but this memo goes much further, requiring them to do so in all cases. This directly contradicts President Trump’s statements about targeting criminal aliens, the text of his EO which creates priorities for removal, and Secretary John Kelly’s department-wide DHS memo that requires that agents be able to retain their discretion over arrests and mandates that they follow the department’s removal priorities when arresting people that they “encounter.” 

President Trump executive order creates prioritization of immigrants for removal. 

Here’s the background. On January 25, President Trump issued Executive Order 13768, “Executive Order: Enhancing Public Safety in the Interior of the United States.” The EO stated, “We cannot faithfully execute the immigration laws of the United States if we exempt classes or categories of removable aliens from potential enforcement.” But it then gave this statement effect by rescinding DHS’s Obama-era immigration enforcement priorities from November 2014 and creating new, much broader ones.

Sec. 5.  Enforcement Priorities.  In executing faithfully the immigration laws of the United States, the Secretary of Homeland Security shall prioritize for removal those aliens described by the Congress in sections 212(a)(2) [various criminal convictions], (a)(3) [security concerns], and (a)(6)(C) [immigration fraud], 235 [people caught while crossing illegally], and 237(a)(2) [various criminal convictions] and (4) [security concerns] of the INA as well as removable aliens who:
(a)  Have been convicted of any criminal offense;
(b)  Have been charged with any criminal offense, where such charge has not been resolved;
(c)  Have committed acts that constitute a chargeable criminal offense;
(d)  Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency;
(e)  Have abused any program related to receipt of public benefits;
(f)  Are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States; or
(g)  In the judgment of an immigration officer, otherwise pose a risk to public safety or national security.

These categories are already very broad and could include up to three quarters of all unauthorized immigrants. Nonetheless, they do provide some guidance for officers on who to target for arrest. Under the Trump EO, no one is “exempt” from potential removal, but officers are instructed to use their discretion to focus on those who fit these priorities. Notably absent from this list: every unauthorized immigrant “encountered” by an ICE officer. On February 20, DHS Secretary Kelly publicly signed a memo that spelled out how his department should implement the EO, stating in relevant part:

Thus, in the DHS memo, officers are allowed—i.e. “may”—initiate enforcement actions against removable aliens that they “encounter” but they “should act consistently with the President’s enforcement priorities” and “shall prioritize” those aliens. It also states that the ICE Director may “issue further guidance to allocate appropriate resources to prioritize enforcement activities within these categories—for example, by prioritizing enforcement activities against removable aliens who are convicted felons or who are involved in gang activity or drug trafficking.” Secretary Kelly has interpreted his memo to mean, “just because you’re in the United States illegally doesn’t necessarily get you targeted. It’s gotta be something else.”

ICE memo ignores President Trump’s priorities for removal

However, on February 21, ICE Executive Assistant Director Matthew Albence, who heads up Enforcement and Removal Operations (ERO), quickly issued the above-mentioned memo that claims to implement his agency’s portions of the Trump executive order as well as Secretary Kelly’s memo to the whole department. The relevant portion of that memo reads:

Here ICE has taken the DHS-wide memo and—rather than narrowing it to certain specific categories within the priorities as Secretary Kelly suggested—clearly goes far beyond it, even to the point of violating it. First, by requiring that agents take enforcement actions against anyone they “encounter,” it violates the DHS-wide guideline to not “remove the individual, case-by-case decisions of immigration officers.” Second, it violates the memo and the Trump EO by prioritizing for removal those individuals that the agents “encounter,” above those specifically listed in the Trump EO and DHS memo.

The ICE memo does mention the prioritization but only applies it to detention decisions and “efforts to remove.” How can ICE claim that its “efforts to remove” are targeted against prioritized aliens while also requiring ICE agents to arrest all that they “encounter”? It appears to me that ICE has adopted the view that priorities only apply to its investigations and targeted operations—i.e. “efforts”—while it is free to arrest anyone whom they encounter during those “efforts.” This explains reports of immigrants being arrested who appear to fall outside DHS’s priorities.

In its justification of the memo for the story, ICE claims that “ICE prioritizes the arrest and removal of national security and public safety threats; however, no class or category of alien in the United States is exempt from arrest or removal.” This is a complete non-answer. A category may not be “exempt” from potential arrest, while still being de-prioritized relative to other categories. That is what the memo and EO instruct. Instead, it makes arrests of non-prioritized aliens mandatory if encountered by ICE agents.

ICE is simply creating its own priorities that contradict the secretary’s, yet Congress entrusted the secretary with the responsibility of “establishing national immigration enforcement policies and priorities.” Nothing in the memo delegates to ICE the authority to create new priorities. Indeed, it does just the opposite, instructing ICE to follow the priorities and allowing it only to promulgate memos that narrow the focus of the priorities.

Congress has also advised DHS to prioritize criminal immigrants in recent years. In every Homeland Security appropriations since 2008, the House appropriations committee has stated that the DHS “Secretary shall prioritize the identification and removal of aliens convicted of a crime by the severity of that crime.” In 2015 and 2016, this language was enacted into law. Unfortunately, likely due to the fact that Congress has avoided regular appropriations process, it was not enacted for 2017, but it is a part of the Committee-passed DHS appropriations bill for 2017 and likely will be again in 2018.

In any case, ICE’s practice simply cannot be squared with the public DHS memo or the Trump EO. The memo proves that the agency wants to have as few limits as possible on its authority, and it believes that no one in the White House or in DHS will stop them, even when it ignores their orders. This effect is not new to the Trump administration. ICE flouted the executive actions of President Obama as well. It is new, however, to see that the agency is spelling out its defiance in written instructions to its agents. This makes sense given that the agency’s performance metrics are mainly the quantity of removals, not the quality of removals.

The agency’s defenders will likely claim that it is just “enforcing the law,” but in no other sphere of law do we consider prioritization a failure to enforce the law. We take stock of the seriousness of the offense and allocate resources accordingly. Non-prioritization implies that ICE should spend equal time and resources on arresting non-criminal mothers with U.S. citizen kids as it does on serious violent offenders. That’s not just inhumane. It’s dangerous.

Twice here, yours truly has reported on The Fourth Corner Credit Union’s attempts to get the Kansas City Fed to grant it a master account, so that it could gain access to the Federal Reserve operated interbank payment and settlement system, and thereby supply ordinary banking services to Colorado’s legal marijuana-related businesses.

Although the 1980 Depository Institutions Deregulation and Monetary Control Act (DIDMCA) requires that “All Federal Reserve bank services…shall be available to nonmember depository institutions and such services shall be priced at the same schedule applicable to member banks,” the Kansas City Fed, after dragging its feet for months, summarily turned down TFCCU’s request in July 2015, on the dubious grounds that the National Credit Union Authority had earlier (and almost certainly at the Fed’s behest) denied TFCCU’s request to take part in its Share Insurance Fund — the credit-union counterpart of FDIC deposit insurance. I say “dubious” in part because TFCCU was planning to secure private insurance coverage, but mainly because insurance coverage had never been considered a requirement for having a Fed master account.

Until now, things have worked out badly for TFCCU. Although it sued the Kansas City Fed, the Fed’s lawyers replied with a motion to dismiss the suit, to which TFCCU’s lawyers responded with a counter motion, along with a request for summary judgement. Alas, TFCCU’s efforts came to naught when U.S. District Judge R. Brooke Jackson sided with the Fed. In his nine-page opinion, Jackson insisted that despite TFCCU’s “attempts to give me comfort that, notwithstanding the oath I took to uphold the laws of the United States, I can grant the relief it seeks,” despite federal justice guidelines issued in February 2014, granting banks in states where marijuana-related businesses were legal a green light to do business with them, subject to specific reporting requirements, and despite TFCCU’s stated intent to obey federal law, his hands were tied by the Controlled Substances Act.

Well, recently TFCCU got some good news at last. In a message he sent me last week, Mark Mason, the credit union’s attorney, wrote

I wanted to share the big win with you — we got Judge Jackson’s order vacated by the 10th Circuit Court of Appeals. Judge Bacharach’s opinion agreed 100 percent with our position [that the F]ed must provide all depository institutions access to the payments system and that it has no discretion in that regard.

Judge Bacharach’s well-argued opinion, which is well-worth reading in full, allows TFCCU to proceed with its suit after all. Though not yet a complete victory for the beleaguered credit union, it’s at least a giant step in that direction.

[Cross-posted from Alt-M.org]

The Federal Reserve released the minutes from its June policy-setting meeting yesterday afternoon.  The Federal Open Market Committee (FOMC) minutes reflect an economic outlook consistent with recent public comments made by Fed officials: an improving labor market, confidence that the current path of monetary policy will achieve 2% inflation in the long run, and an expectation that economic growth will continue to rise from the disappointing Q1 figures.

Balance Sheet Reduction

The minutes note that all FOMC participants agreed to the balance sheet reduction program, which was described in more detail in an update to the Fed’s Policy Normalization Principles and Plans following the June policy meeting. In sum, the program suggests that the Fed will limit the reinvestment of the principal of maturing assets on its balance sheet through a series of monthly caps. Initially, the Fed will allow up to $6 billion in Treasuries and $4 billion in agency debt and MBS to roll off each month. Whatever matures above those limits in a given month will continue to be reinvested. Every three months the caps will increase by $6 billion for Treasuries and $4 billion for agency debt and MBS over 12 months until $30 billion of Treasuries and $20 billion of agency debt and MBS are rolling off each month. The Committee anticipates these to be the monthly caps until the balance sheet returns to a new normal that is considerably lower than the present $4.5 trillion level but appreciably higher than its pre-crisis level of around $800 billion.

One new detail revealed in the minutes is that the FOMC seems to be split on when the balance sheet wind down should be announced. Some members want to announce the start date within a couple months while others prefer to wait until late this year. Noticeably absent from the minutes is a discussion about the actual start date for the reduction plan.

The Inflation Target

Another detail of interest is that one FOMC member suggested the Committee’s commitment to a 2% inflation target would be more publicly credible if the Fed allowed for a period of above 2% inflation. Since FOMC minutes don’t name names, we can only speculate that this suggestion came from Neel Kashkari — the only voter to dissent at the meeting, preferring to have held rates steady in June. Many monetary policy analysts have recently suggested that the Fed’s inflation target is asymmetric, meaning that policymakers are much more comfortable undershooting the target than overshooting it.

Financial Stability

FOMC members expressed a range of views on matters related to financial stability.  Some participants are concerned that the current labor market could lead to rapidly rising inflation and increased financial instability, a development that would call for aggressively raising the target range for the federal funds market. Others do not believe previous episodes of labor market inflation dynamics are relevant to today, and are therefore less concerned that low unemployment will cause inflation to increase excessively. Another member believes the financial system is more robust to shocks today than it was before the crisis, but also noted that the FOMC should remain “vigilant” about developments in financial markets.

Interest Rates

The Committee is divided on how the balance sheet reduction will impact the path of interest rates, with some members believing that as securities roll off the frequency of rate increases can slow. Others anticipate that normalizing the balance sheet will not materially affect the path of rate hikes.

Something of concern is that there is no mention of how the FOMC intends to normalize policy in the federal funds market. The minutes contain no discussion of how, when, or if the FOMC will end its policy of paying above market interest on excess reserves, a policy that prevents a traditional federal funds market from emerging.

Another area with a troubling lack of clarity is the Committee’s continued practice of citing a lower than normal neutral (or natural) rate of interest as justification for its policy stance without sharing its estimates of that neutral rate. If monetary policy is supposedly data driven, the Fed should be transparent about the data and estimates it is using.

Conclusion

Overall, as is typical, the minutes reveal little new. The path to normalization is starting to materialize, but with ample room for the Fed to reverse course. While the FOMC will likely announce when balance sheet reductions are to begin, that actual start date is still unclear with lots of flexibility for the Fed to backtrack on ending balance sheet reinvestments. And without a strategy for unwinding interest on excess reserves simultaneously, the path to normalization is fraught with challenges.

[Cross-posted from Alt-M.org]

According to the WSJ, drug-trade-related violence is rising again in Mexico:

On the morning of March 23, gunmen here fired eight shots into a cherry-red Renault Duster SUV, killing newspaper reporter Miroslava Breach as she waited outside her home to drive her 14-year-old son Carlos to school.

A hand-painted sign at the scene said the journalist—known for her investigations into ties between drug gangs and local political machines—was murdered “for having a loose tongue.”

After a few years of declining violence under Mexican President Enrique Peña Nieto, the drug war has come roaring back to life.

Ms. Breach was one of 11,155 people murdered in Mexico in the first five months of 2017, according to government statistics. The pace of murders—about one every 20 minutes—represents a 31% jump from a year earlier, and, by year-end, could rival 2011’s 27,213 homicides for the worst body count in Mexico’s peacetime history.

Why? The story offers multiple reasons, such as increased bloody competition between rival gangs, set off by the arrest of senior leaders. The most interesting hypothesis, however, is this:

There is also a counterintuitive dynamic at work, say scholars of the drug trade: In recent months, voters have thrown out of office allegedly corrupt state and local leaders of President Peña Nieto’s ruling Institutional Revolutionary Party, or PRI. That, in turn, has led to the breakdown of unofficial alliances between drug gangs and politicians—what some are calling a pax mafiosa—that had kept the killings in check.

That is, when governments impose bad laws, corruption that circumvents the laws can have beneficial effects. In this case, violence is costly to traffickers as well as other citizens, so corruption that diminishes prohibition enforcement—de facto legalization—makes it easier for the cartels to operate non-violently.

Everybody’s finding errors in Duke historian Nancy MacLean’s “work of speculative historical fiction” on Nobel laureate James Buchanan and the libertarian movement, Democracy in Chains. I’d feel left out if I weren’t misquoted, so I’m relieved to find my name on page 211. Here’s what MacLean says about me and some of my purported allies:

Now: Did I actually say that the poor and working class are “intent on exploiting the rich”? Or “that they contribute nothing”? Well, here’s what I wrote on pp. 252-53 of The Libertarian Mind, which is the source MacLean footnotes:

Economists call this process rent-seeking, or transfer-seeking. It’s another illustration of Oppenheimer’s distinction between the economic and the political means. Some individuals and businesses produce wealth. They grow food or build things people want to buy or perform useful services. Others find it easier to go to Washington, a state capital, or a city hall and get a subsidy, tariff, quota, or restriction on their competitors. That’s the political means to wealth, and, sadly, it’s been growing faster than the economic means.

Of course, in the modern world of trillion-dollar governments handing out favors like Santa Claus, it becomes harder to distinguish between the producers and the transfer-seekers, the predators and the prey. The state tries to confuse us, like the three-card monte dealer, by taking our money as quietly as possible and then handing some of it back to us with great ceremony. We all end up railing against taxes but then demanding our Medicare, our subsidized mass transit, our farm programs, our free national parks, and on and on and on. Frederic Bastiat explained it in the nineteenth century: “The State is that great fiction by which everyone tries to live at the expense of everyone else.” In the aggregate, we all lose, but it’s hard to know who is a net loser and who is a net winner in the immediate circumstance.

On the preceding pages I introduced James Buchanan and the concept of public choice:

One of the key concepts of Public Choice is concentrated benefits and diffuse costs. That means that the benefits of any government program are concentrated on a few people, while the costs are diffused among many people. Take ADM’s ethanol subsidy, for instance. If ADM makes $200 million a year from it, it costs each American about a dollar. Did you know about it? Probably not. Now that you do, are you going to write your congressman and complain? Probably not. Are you going to fly to Washington, take your senator out to dinner, give him a thousand-dollar contribution, and ask him not to vote for the ethanol subsidy? Of course not. But you can bet that ADM’s corporate officers are doing all that and more. Think about it: How much would you spend to get a $200 million subsidy from the federal government? About $199 million if you had to, I’ll bet. So who will members of Congress listen to? The average Americans who don’t know that they’re paying a dollar each for ADM’s profits? Or ADM, which is making a list and checking it twice to see who’s voting for their subsidy?

I also wrote on page 253 about the “parasite economy,” in which

every group in society comes up with a way for the government to help it or penalize its competitors: businesses seek tariffs, unions call for minimum-wage laws (which make high-priced skilled workers more economical than cheaper, low-skilled workers), postal workers get Congress to outlaw private competition, businesses seek subtle twists in regulations that hurt their competitors more than themselves. 

Let’s be clear: when public choice economists and I talk about “rent seeking” and “concentrated benefits,” and we point to “subsidy, tariff, quota, or restriction on their competitors,” we’re not trying to protect the rich. We’re talking about ways that businesses, unions, and other organized interest groups seek to use government to gain advantages that they couldn’t gain in the marketplace. And when we suggest limiting the power of government to hand out such favors, we are arguing in the interests of workers and consumers.

I do not believe that MacLean’s two very short quotations from The Libertarian Mind and the paragraphs in which she situates them fairly depict my argument in the book. One might even say that she reversed the meaning of “the predators and the prey.” Unfortunately, selective quotation and misrepresentation seem to be MacLean’s M.O., as Steve Horwitz, Phil Magness, Russ Roberts, David Henderson, David Bernstein, Bernstein again, Nick Gillespie, Michael Munger, and others have pointed out.

By the way, Professor MacLean derides me as a writer “subsidized by wealthy donors.” Well, yes, it’s true that the Cato Institute is supported by voluntary contributions, not by tax funding. And donors to organizations – Duke University, NPR, the Sierra Club, Planned Parenthood, the Brookings Institution, the Cato Institute – tend to be well-off. But I assure Professor MacLean that I was absorbing the ideas of John Locke, Adam Smith, F. A. Hayek, the American Founders, and John Stuart Mill long before I discovered that there might be jobs available to write about such ideas.

Although James Buchanan was not involved in the founding of the Cato Institute, as MacLean writes, we are proud that he chose to write frequently for the Cato Journal, speak at various Cato events, and allow us to count him as a Distinguished Senior Fellow. And we regret that he has been so ill treated by a fellow academic.

The First Amendment right to free speech extends far beyond just verbal expression. Some of the most iconic First Amendment cases have concerned the right to make silent but powerful statements, such as wearing a black armband to protest a war, Tinker v. Des Moines (1969), or an impolite shirt to protest the draft, Cohen v. California (1971). As these cases have recognized, what we choose to wear often plays an important role in how we express ourselves.

But in Minnesota, such personal expression has been unjustifiably prohibited. The state completely bans the wearing of any “political badge, political button, or other political insignia” in or around the polling place on election day. When several Minnesota citizens attempted to vote wearing clothes expressing support for the Tea Party movement or buttons reading “Please I.D. Me,” they were told that such apparel violated the law. They sued to overturn the law, but their challenge has twice been rejected by the U.S. Court of Appeals for the Eighth Circuit.

Now those voters have appealed to the Supreme Court. On the eve of our nation’s independence day, Cato, joined by the Rutherford Institute, Reason Foundation, and Individual Rights Foundation, has filed an amicus brief supporting that petition.

We explain just how startlingly far Minnesota’s statute extends. Anything from the word “occupy” to the peace symbol to a donkey or elephant might be construed as a “political insignia,” thereby running afoul of the law. Further, the statute gives election judges the power to ban any materials “promoting a group with recognizable political views.” That means Minnesota voters can’t even feel safe wearing shirts supporting the ACLU, NAACP, or their local union.

No compelling government interest justifies such a sweeping ban. Only once has the Supreme Court upheld a law that regulated speech in the polling place. But in that case, Burson v. Freeman (1992), the law was limited to “the solicitation of votes and the display or distribution of campaign materials.” Because that law specifically targeted electioneering, the Court held that it was narrowly tailored to advance “a compelling interest in protecting voters from confusion and undue influence.”

By instead banning all political insignia, Minnesota has gone vastly beyond Burson. Concerns about the electoral process can’t justify a ban on speech that is unrelated to any issue or candidate on the ballot.

Finally, we explain in our brief that the law is so vague it gives unaccountable election judges far too much discretion in determining what is permissible. So long as Minnesota’s law remains on the books, voters are left unsure whether any given government agent might rule that their Gandhi or Lennon (or Lenin!) shirt is a political stance or just a fashion statement. As a result, even apolitical speech has undoubtedly been chilled by the law, making it unconstitutionally overbroad.

The Supreme Court should take up Minnesota Voters Alliance v. Mansky and strike down Minnesota’s ban on political expression.

For many years, Violet Dock Port had owned and operated a docking facility that stretched along a mile of the Mississippi River in St. Bernard Parish, Louisiana. As a private business, Violet was in economic competition with the local Port Authority, which also owns and operates riverfront property.

In 2007, the Port Authority took an interest in Violet’s land and tried to negotiate a purchase, but those negotiations failed. If this had been a normal negotiation between two private market participants, the Port Authority would have had only two options at that point: improve its offer or walk away. But instead it decided to appeal to its status as a public agency and claim that it required Violet’s land for “public use.” Invoking Louisiana’s eminent domain power to complete the deal by force, the Port Authority took over Violet’s business and eliminated its competition.

Violet has challenged this taking in state court, and the case has now reached the Louisiana Supreme Court. Cato has joined the National Federation of Independent Business Small Business Legal Center, Southeastern Legal Foundation, and Louisiana Association of Business and Industry on an amicus brief urging the state supreme court to strike down this taking under both the federal and Louisiana constitutions.

Under both constitutions, private property can only be taken by eminent domain if it is for a true public use. But a taking that is solely for the purpose of eliminating private competition is not a legitimate “public use.” There is nothing public-minded about destroying a private-sector business for the benefit of a public enterprise, and no reason to believe that such an agglomeration will help consumers or the economy. Indeed, the state’s economic arguments are dangerously broad because they could apply just as much to a private company that wished to eliminate competition.

Allowing this taking to stand would incentivize politically powerful corporate interests to lobby for the forcible transfer of property from smaller firms—solely for the purpose of eliminating competition.

Beyond the issue of “public use,” the Louisiana Constitution also specifically speaks to exactly what happened here. It declares that “no business enterprise or any of its assets shall be taken for the purpose of operating that enterprise or halting competition with a government enterprise.” The lower court implausibly interpreted this clause to not apply to the Port Authority because of a separate clause granting general eminent domain power to public ports. But as we point out in our brief, that ignores the core interpretive principle that the specific takes precedence over the general.

The lower court’s reasoning could effectively write an important property protection out of the state constitution entirely, by subordinating it to every general grant of government authority. For each of these reasons, the Louisiana Supreme Court should reverse the lower court in St. Bernard Port & Terminal District v. Violet Dock Port, Inc. and reject this taking.

If the port authority wants to make a deal with its competitors, it should do so the old fashioned way: by making them an offer they can refuse.

The situation is grim. Dangerous foreigners are streaming into the United States, killing and abducting innocent Americans. They depress the wages of American workers and hurt American businesses. Something must be done about these invaders!

Is this another warning from Donald Trump? Another column by Sean Hannity? The conclusion of another paper from the Center for Immigration Studies?

Nope, it’s a paraphrase of warnings from politicians, unions, and major newspapers from a century ago, about the dangers of Chinese immigrants and other “Asiatics,” as well as the businesses they opened, especially “chop suey houses.” These warnings would be comical if they weren’t so abhorrent.

Consider this, from the Chicago Tribune:

More than 300 Chicago white girls have sacrificed themselves to the influence of the chop suey “joints” during the last year, according to police statistics. … Vanity and the desire for showy clothes led to their downfall, it is declared. It was accomplished only after they smoked and drank in the chop suey restaurants and permitted themselves to be hypnotized by the dreamy, seductive music that is always on tap.

Or this, from the Mixer and Server, a publication of the Cooks’ and Waiters’ Union, an ancestor of today’s UNITE HERE:

View this matter from every angle, without heat or racial prejudice, and the fact stares us in the face that there is a conflict between the American wage-earner and the workers or employers from the Orient. Our Government has been compelled to close its doors to Asiatics in recognition of this fact.

Or this resolution from one of the forerunners of the AFL-CIO:

WHEREAS the evils arising from the employment of white women and girls in establishments owned or controlled by Chinese and Japanese constitute, both morally and economically, a serious menace to society; therefore be it

RESOLVED, That the American Federation of Labor be requested to pledge its best endeavors to secure the passage of a law prohibiting the employment of white women or girls in all such establishments.

Those quotations are from “The ‘War’ Against Chinese Restaurants,” a paper by UC-Davis law professor Gabriel J. “Jack” Chin and attorney John Ormonde that is the cover story of the summer issue of Cato’s Regulation. (A longer version of the paper is forthcoming in the Duke Law Journal.) The article is filled with other shocking warnings, as well as inspiring responses from that era’s defenders of mobility and economic freedom.

The Chinese Restaurant War was driven by nationalism and bigotry. That war echoes today, of course, as Chin and Ormonde note in their conclusion:

Back in 2015, Steve Bannon, now a top White House official, had a special guest on his radio program: Donald J. Trump. Trump spoke of his concern about immigration but added, “You know, we have to keep our talented people in this country.” Bannon disagreed, saying: “When two-thirds or three-quarters of the CEOs in Silicon Valley are from South Asia or from Asia, I think… . A country is more than an economy. We’re a civic society.” In saying this, Bannon wildly overestimated the percentage of Silicon Valley professionals of Asian descent. More importantly, he repeated an old belief: that only white citizens should be a part of this nation’s civic society.

As a wave of Islamist terror attacks sweep across Europe, London police urge people to “run, hide, tell”. The Czech Republic’s response? Fight back.

The Czech parliament is working to liberalize the country’s gun laws, allowing people to better defend themselves. The reason for this new policy is safety, as well as practicality; in light of recent attacks in neighboring countries, the Czech government recognizes that disarming people puts them in danger, and that broad European gun control policies are ineffective. The Interior Minister said it best when he asked parliament to “show [him] a single terrorist attack in Europe perpetrated using a legally-owned weapon”.

In contrast, the European Union’s answer to terror is as counterintuitive as it is feckless. France has spearheaded efforts to ban all “military-style” rifles – AR and AK-style rifles, not to be confused with those capable of automatic fire, commonly referred to as “machine guns” – from Europe. As my colleague Dan Mitchell has noted, the EU is violating its own commitment to state sovereignty in favor of radical, unsuccessful gun prohibition.

Despite strict gun control in France, Islamic radicals were still able to obtain rifles and kill 17 people in the Charlie Hebdo attack of 2015. More recently, in places like Nice and London, terrorists have worked around gun restrictions by using trucks and other vehicles to kill civilians.

The Czech Republic, which already boasts 800,000 registered firearms and 300,000 licensed gun owners, is taking proactive steps to avoid their citizens becoming victims without a means of defending themselves. The new measure is a protest against the self-destructive dogma of European gun control and in favor of civil liberties and self-empowerment.  

If the rest of Europe followed the Czech Republic’s example, civilians would be able to defend themselves – whether against terrorism or “normal” crime – instead of depending on police and other government agents, which typically arrive far too late if at all.

Earlier this week, the D.C. Circuit court issued a surprising decision in Lucia v. SEC. The case addresses whether administrative law judges (ALJs) are “inferior officers” and are therefore subject to the appointments clause. But the heart of the case is far less wonky than it seems. The question is really this: what makes a judge a judge? If a person has the power to ruin a company, bankrupt a person, force the person to give up a lifelong profession, and bar the individual from interacting with friends and former colleagues, and if the person does this wearing a black robe and sitting amidst the trappings of court of law, is that person an officer? Because ALJs do all of this and more. Their decisions about whether evidence is admissible and their determinations about whether a witness is lying have a profound effect not only on the hearings over which they preside, but over any subsequent appeal. If this much authority and discretion are not enough, what on earth is?

It seems the judges, who sat en banc to hear the case (a rare occurrence, signaling a case of particular import), could not agree. They split right down the middle and deadlocked. The earlier decision will stand…for now. The case is almost assuredly bound for the Supreme Court. But until the High Court takes it up (and while it seems this is the sort of case they would take, there are no guarantees on that front), the D.C. Circuit’s earlier ruling, finding that ALJs are not inferior officers but “mere employees” will stand.

Aside from the absurdity of stating that individuals with so much authority are “mere employees,” the earlier ruling is problematic for the simple reason that it relies on a poorly reasoned ruling of an earlier case by the same court. In Landry v. FDIC, the D.C. Circuit considered the role of ALJs at the FDIC and found they were simply employees because their decisions were not final; they were final only when issued by the FDIC itself. Similarly, ALJs at the SEC issue “initial,” not “final” decisions. 

It seems odd that an individual could perform almost all the same tasks a federal judge does, and yet because there is the possibility that the full commission could review and overturn the “initial” decision, that individual lacks the discretion of even an inferior officer. It also seems I am not alone in my opinion. The D.C. Circuit expressly stated its interest in revisiting Landry when it agreed to hear Lucia en banc. Unfortunately, my opinion seems to be shared with only an even half of the sitting judges in this Circuit. We will simply have to wait to see what the Justices up the way make of it. 

The New York Police Department’s Civilian Complaint Review Board (CCRB) reported that over a three-year period, NYPD officers threatened, blocked, and otherwise tried to prevent individuals from recording them in public in the performance of their duties. Almost 100 of the 346 allegations made between 2014 and 2016 were substantiated by the board, not counting the many cases that may not have been reported.

To be fair, there are many thousands of contacts between police and individuals that happen in New York City. Although there is no way to know how many of those interactions are recorded, it’s fair to assume that many of them have been as cell-phone recording capabilities have become ubiquitous. However, there is clearly a segment of officers—perhaps very small, but nevertheless real—who feel that they may violate the First Amendment rights of people who record them. To alleviate this, the CCRB suggested that a new entry should be included in the Patrol Manual to reassert the public’s right to record police interactions. That insertion is fine, but more could and should be done because it is extremely unlikely that every officer who disrupted lawful, public recording was ignorant of the right to do so. Any officer who already knew the law was committing misconduct.

Police officers should be held accountable for their actions. Unfortunately, New York State law prohibits the Department or the CCRB from releasing the names of officers who have complaints lodged against them, whether or not they are sustained, or what the outcomes of any disciplinary actions taken were short of termination. As I testified before the U.S. Commission on Civil Rights in 2015:

According to an investigation of New York City’s Civilian Complaint Review Board records, about 40 percent of the 35,000 NYPD officers have never received a civilian complaint, but roughly 1,000 officers have more than 10 complaints on file. One officer has over 50 complaints but retains his position.

Institutionally, the NYPD knows these 1,000 officers are repeat offenders several times over. Multiple complaints against a single officer over a period of months or years implies the officer must, at times, operate too close to the line of impropriety. Those 1,000 officers represent fewer than three percent of NYPD officers but can damage the reputation of the rest of the department. Clearly, some portion of these 1,000 officers are abusing their authority, and the NYPD is unwilling or unable to remove these officers from duty. And because the public can’t know their names and records, we cannot measure how effectively the NYPD addressed these incidents with any given officer. (internal citations omitted)

The lack of transparency is not limited to New York, by any means, but the NYPD’s institutional dedication to data collection at least gives us a glimpse of what is going on. Getting the right to record in the Patrol Manual is be a good start, but the State of New York should repeal the anonymity granted to misbehaving officers. Such laws punish the best officers by making them indistinguishable from those who intentionally—and sometimes repeatedly—violate the rights of the people they are supposed to serve.

For a robust First Amendment analysis of the right to record, read this opinion by 2014 B. Kenneth Simon Lecturer Judge Diane Sykes. You can read my 2015 USCCR testimony on police transparency and the use of force here. Finally, you can check out the 2014 panel we hosted on recording the police here.

 

In a recent Washington Post op-ed, U.S. Attorney General Jeff Sessions makes numerous misleading claims about the U.S. War on Drugs and the appropriate role of the federal government in combatting drug crime. The premise of his argument is that drug trafficking is an intrinsically violent and crime-inducing activity, so the only way to make our communities safe is by adopting a tougher, heavy-handed approach to drug crime.

However, many of the facts and statistics that the Attorney General uses to support his arguments are distorted, misguided, or flat out incorrect. Sessions paints a false narrative of drug trafficking in America, and he mistakenly assumes that weak drug law enforcement has spurred violent crime. Let’s analyze his statements one by one. 

  •  “Drug trafficking is an inherently violent business. If you want to collect a drug debt, you can’t, and don’t, file a lawsuit in court. You collect it by the barrel of a gun.” Correct. But only because drugs are illegal! Prohibition forces drug production and distribution underground, so standard dispute resolution uses violence rather than courts. The solution is trivial: legalize drugs. 
  • “For the approximately 52,000 Americans who died of a drug overdose in 2015, drug trafficking was a deadly business.”  Drug overdoses indeed claimed 52,000 lives in 2015, according to the CDC, but most of these involved non-prohibited drugs, such as prescription painkillers.. In addition, Sessions confuses drug overdoses with drug trafficking. The majority of the 52,000 overdose deaths had nothing to do with drug smuggling or drug crime; rather, they were instances in which someone accidentally consumed too much of an opioid. That occurs far more under prohibition, when information about purity and quality are scarce, than in a legal market. 
  • “Yet in 2013, subject to limited exceptions, the Justice Department ordered federal prosecutors not to include in charging documents the amount of drugs being dealt when the actual amount was large enough to trigger a mandatory minimum sentence. Prosecutors were required to leave out objective facts in order to achieve sentences lighter than required by law. This was billed as an effort to curb mass incarceration of low-level offenders, but in reality it covered offenders apprehended with large quantities of dangerous drugs. The result was that federal drug prosecutions went down dramatically — from 2011 to 2016, federal prosecutions fell by 23 percent.” Sessions states that total federal prosecutions fell dramatically between 2011 and 2016, but he fails to mention that federal drug prosecutions actually remained constant (32%) as a share of all prosecutions during that time period. The natural interpretation is therefore that federal prosecution became less aggressively generally; not that attention to drug enforcement declined disproportionately. 
  • “Meanwhile, the average sentence length for a convicted federal drug offender decreased 18 percent from 2009 to 2016.” The correct number is closer to 15 percent. 
  • “Before that policy change, the violent crime rate in the United States had fallen steadily for two decades, reaching half of what it was in 1991. Within one year after the Justice Department softened its approach to drug offenders, the trend of decreasing violent crime reversed.” National violent crime has fallen precipitously since peaking in the early 1990s, and violent crime indeed ticked up in 2015. But Sessions conveniently forgets that in 2012—right before the policy change supposedly went into place—violent crime rates actually increased. Violent crime rates then fell steadily in 2013 and 2014, the two years immediately after the Justice Department’s policy change. In 2015, violent crime edged up by 3.9 percent, but it’s too early to tell if this represents a reversing trend or just one of the numerous ups-and-downs observed since 1990. 
  • “In 2015, the United States suffered the largest single-year increase in the overall violent crime rate since 1991. And while defenders of the 2013 policy change point out that crime rates remain low compared with where they were 30 years ago, they neglect to recognize a disturbing trend that could reverse decades of progress: Violent crime is rising across the country. According to data from the FBI, there were more than 15,000 murders in the United States in 2015, representing a single-year increase of nearly 11 percent across the country. That was the largest increase since 1971.” These facts are all correct. But again, one year of data is not even remotely enough to demonstrate a change in trend. Ups and downs in the crime rate happen regularly. And even if crime rates were slightly on the rise, where is the evidence that this is connected to fewer drug convictions? Many other factors are plausibly at play. 
  • “Defenders of the status quo perpetuate the false story that federal prisons are filled with low-level, nonviolent drug offenders. The truth is less than 3 percent of federal offenders sentenced to imprisonment in 2016 were convicted of simple possession.”  Sessions conflates “low-level, nonviolent drug offenders” with those “convicted of simple possession.”  Nearly half of the nation’s roughly 200,000 federal inmates are imprisoned on drug-related charges.  Sessions is right that hardly any of these charges are for mere possession.  But drug trafficking encompasses activities as benign as selling a few grams of marijuana on the street corner. 35% of drug offenders sentenced in federal prison had no or minimal criminal history beforehand, according to a recent report by the Bureau of Justice Statistics. And 76% of drug offenders serving time did not use a weapon in their most recent offense. 
  • “The truth is that while the federal government softened its approach to drug enforcement, drug abuse and violent crime surged. The availability of dangerous drugs is up, the price has dropped and the purity is at dangerously high levels.” Rising drug availability, declines in prices, and rising purity levels have been trends since long before the Obama policy changes. For example, the cost of heroin has fallen by over 70 percent since the early 1990s. The same pattern is true for other drugs. There is no evidence that the federal government’s change in policy had any discernable impact on drug prices, availability, or purity. 
  • “Overdose deaths from opioids have nearly tripled since 2002. Overdose deaths involving synthetic opioids rose an astonishing 73 percent in 2015.” It is true that opioid overdose deaths have risen nearly threefold since 2002 – which demonstrates that rising drug availability and potency are trends that far predate Obama-era policy changes! 

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