Policy Institutes

Two years ago on Presidents’ Day (which is legally Washington’s Birthday) I talked about my book The Libertarian Mind at the National Constitution Center (video). As part of that appearance I wrote about America’s libertarian heritage in the Philadelphia Inquirer:

Where better than Philadelphia on Presidents’ Day to talk about liberty and reviving the American tradition of freedom and limited government.

Thomas Jefferson said that when he wrote the Declaration of Independence in June of 1776, he had no book or pamphlet at hand but simply set down “an expression of the American mind.” With its foundation on the equal and inalienable rights of all people, including life, liberty, and the pursuit of happiness, the Declaration also reflects the libertarian mind.

Indeed, the principles of the Declaration are so closely associated with libertarianism that the Chinese edition of my previous book, Libertarianism: A Primer, features a cover photograph of the famous room in Independence Hall, complete with Windsor chairs and green tablecloths.

Libertarianism is the philosophy of freedom. It has, in different form throughout history, inspired people who fought for freedom, dignity, and individual rights — the early advocates of religious tolerance, the opponents of absolute monarchy, the American revolutionaries, the abolitionists, antiwar advocates and anti-imperialists, opponents of National Socialism and communism….

I believe that the simple, timeless principles of the American Revolution — individual liberty, limited government, and free markets — are even more powerful and more important in the world of instant communication, global markets, and unprecedented access to information, a world that Jefferson or Madison could not have imagined. Libertarianism is the essential framework for a future of life, liberty, and the pursuit of happiness.

Mainstream media reporting on infrastructure seems to be driven by the lobby groups that are pushing for more federal spending. A Washington Post article today reflects two popular lobbyist themes: “the bridges are falling down” and “the federal government needs to solve the problem.” For today’s story, the Post could have saved the reporter’s salary and simply asked the press office at the American Road and Transportation Builders Association (ARTBA) to write it.  

The headline, “More than 55,000 bridges need repair or replacement,” captures the bridges-falling-down theme. That figure is the number of “structurally deficient” bridges, which the Post sources from the ARTBA. But the story does not mention that these bridges (56,007 according to federal data) are 9.1 percent of the nation’s 614,387 bridges, which is the lowest such percentage in 24 years. The chart below shows that the share of bridges in this category fell from 21.7 percent in 1992 to just 9.1 percent in 2016.

That positive trend undermines the scary scenario that most articles want to convene, so it is not mentioned. By the way, “structurally deficient” does not mean unsafe.

The other lobbyist theme is captured by the Post in a quote from Rep. Bill Shuster, “We at the national level have to figure out how we’re going to make these investments.”

No we don’t. Of the 600,000 bridges, 99 percent are owned by state and local governments. Responsibility lies with the owner. The states have a powerful ability to tax, and about half of them have raised their gas taxes in just the past five years to fund highways and bridges. The states can also borrow or privatize to steer additional funds to infrastructure.

The Post story notes the large differences in bridge maintenance across the states. Apparently, 23 percent of bridges in Rhode Island are structurally deficient, but just 2 percent are in Texas. That does not suggest a need for federal intervention, but rather that Rhode Island’s leaders have been negligent.

It also suggests that a new federal spending effort to reduce the number of structurally deficit bridges would be unfair. It would reward irresponsible states such as Rhode Island, and penalize states such as Texas that have already prioritized bridge maintenance.

    

Donald Trump has of late been complaining that the media has been underplaying the threat presented by Islamist terrorism.     

Although one could question whether a hazard that has inflicted six deaths per year in the United States since 9/11 actually represents something that could be called a “threat,” the New York Times in its Sunday, February 5 edition presented on its front page an exercise in terrorism fear-mongering that should surely warm Trump’s heart, if any.

The article, “Not ‘Lone Wolves’ After All” by Rukmini Callimachi seeks in the most ominous tones to demonstrate “How ISIS Guides World’s Terror Plots From Afar.”    

The article does an excellent job at showing how a few ISIS operatives have been trying through internet communication to stir up violence by sympathetic would-be jihadists around the world. However, the evidence from the article includes enough information to indicate that this effort has been an abject, even almost comedic, failure.

The information could have been framed that way, but, one darkly suspects, it might not have made the Sunday front page if it had been.

Callimachi argues that “a pattern has emerged.” In this, a supporter “initially tries to reach Syria, but is either blocked by the authorities in the home country or else turned back from the border.”   

This could be taken to be an indication of the pronounced decline ISIS is experiencing. After all, the group’s whole point and appeal, proclaimed repeatedly for years, is to establish a viable caliphate in the Middle East.

But Callimachi espies a nefarious upside for the vicious group: “Under the instructions of a handler in Syria or Iraq, the person then begins planning an attack at home.” 

The article is centered on an effort by “virtual coaches” in ISIS over no less than 17 months to get the apparent leader of a small band of sympathizers in India to commit some violence in its name. Apparently working with a congenial criminal network in India, one of the coaches was able to supply the distant conspirators with two pistols that proved to be rusty accompanied by 20 essentially irrelevant bullets.     

And only at the end of the article do we find out that the police were able through wiretaps to close down the whole scheme shortly after the boys in the band found they could not fabricate bombs from material surreptitiously supplied by their handler following the instructions he apparently posted on YouTube: “We could not succeed in making powder, as it became jellylike paste,” one lamented. Far from dedicated jihadists, the plotters cooperatively spilled all they knew about the plans and connections to the authorities after they were arrested.  

The article is peppered with similar tales. One guy shoots himself in leg, another was supposed to drive over people but attacks with an ax instead because he didn’t have a driving permit, a third detonates a bomb prematurely killing only himself, and an explosive in a suicide vest proves insufficiently lethal to smash a nearby flowerpot.  

About the only “success” for what Callimachi calls the “cybercoaches” seems to have been the slitting of the throat of an 85-year-old priest in northern France—perhaps the most pointless and thoroughly counterproductive act of terrorism in history. That is, really, really stupid.

The only example of cybercoach work in the United States that is dealt with in any detail in the article is a case in Rochester, NY, in which the 25-year-old Emanuel Lutchman, looking for ways to get to Syria, was encouraged by his ISIS handler to do some local terrorism to demonstrate his devotion to the cause. The idea was to launch a machete attack on a bar on New Year’s eve somehow killing, in the words of his distant, disembodied coach, “1000000s of kuffar”—infidels.

Left out of the article is that Lutchman was rather inadequate for the mission. He had spent most of the previous ten years in prison for various infractions, the first of which was robbing a man of such unimpressive items as his cell phone, baseball hat, bus pass, library card, and cigarettes. He was also mentally ill and was apparently no longer taking his prescribed medication. He had tried to commit suicide several times, most recently by stabbing himself in the stomach. He had no money, job, or resources, and he was given to picking up cigarette butts outside the targeted bar from which he had repeatedly been shooed away by its irritated owner who characterized him as an “aggressive panhandler.”

Lutchman attracted the attention of the FBI when he mindlessly posted favorable commentary about violent jihad and about ISIS on the web, and he soon found himself at the center of a terrorist cell of four. The other three were all FBI operatives. They worked to facilitate his (or his handler’s) addled fantasies, even shelling out the $40 Lutchman didn’t have to buy a machete and other terrorist equipment from a local Walmart.

Any terrorist “threat” presented by the hapless Lutchman and his remote cybercoach, then, was pretty modest. But you’d never know that by reading Callimachi. Or by listening to Trump.

If you did not see President Trump’s press conference yesterday, you might want to watch.  It was quite the spectacle.  His statements on “Buy America” issues may not have been the highlight of the event, but they raise some interesting questions.  Here’s what he said:

We have also taken steps to begin construction of the Keystone Pipeline and Dakota Access Pipelines. Thousands and thousands of jobs, and put new buy American measures in place to require American steel for American pipelines. In other words, they build a pipeline in this country, and we use the powers of government to make that pipeline happen, we want them to use American steel. And they are willing to do that, but nobody ever asked before I came along. Even this order was drawn and they didn’t say that.

… And I’m reading the order, I’m saying, why aren’t we using American steel? And they said, that’s a good idea, we put it in. 

I mentioned this issue on this blog a couple weeks ago.  As I pointed out then, Trump is saying that he put measures in place to require pipeline companies to use American steel, but the Presidential memo he signed does not, in fact, do this.  Instead, it instructs the Secretary of Commerce, as part of an inter-agency consultation, to “develop a plan” under which pipelines “use materials and equipment produced in the United States, to the maximum extent possible and to the extent permitted by law.”

This is a much more limited approach than what he is publicly suggesting. Let’s look at how this general policy is likely to work in practice, if applied. Take the example of the Keystone XL pipeline. Here’s what a Reuters article had to say about this pipeline’s steel:

When U.S. President Donald Trump signed orders to revive two controversial energy pipeline projects this week, he pledged to require new pipelines to use American-made steel, a gesture to workers in the hard-hit industry who helped propel him to power.

But U.S. steelmakers will receive negligible benefit from the multi-billion dollar Keystone XL project, one of the two projects Trump ordered to proceed, because they have limited ability to meet the stringent materials requirements for the TransCanada line.

Meanwhile, in the quiet prairie town of Gascoyne, North Dakota, deer wander among gleaming stacks of steel tubing intended for the Keystone pipeline. The company bought the material years ago when the U.S. debate was raging over whether the project should go ahead.

About half of the pipe was forged in Arkansas, at a plant owned by India’s Welspun. About a quarter came from a Russian-owned plant in the Canadian province of Saskatchewan, and the rest came from Italy and India.

So according to this article, while some of the steel for the pipeline is from U.S. sources, U.S. steelmakers could not produce all of the steel that was needed, and therefore TransCanada had to buy it from foreign sources.  As a result, using exclusively American steel was not possible here.  This may violate Trump’s public pronouncements, but according to the terms of the Presidential memo (use American inputs “to the maximum extent possible”), it is likely that the Keystone XL pipeline would be allowed to use this foreign steel.

With all this in mind, where is U.S. trade policy headed?  Is it going to reflect the declarations of policy that Trump makes at press conferences, which take economic nationalism further than we have seen it in a long time?  Or is it going to be more like the carefully worded memos that someone who knows a bit about trade law and policy is writing and having Trump sign, which only go a little beyond our existing protectionism?  There’s a large gap between these two.  In the coming months, we will see who is hired for key positions at the main trade agencies, and we will try to guide them away from the protectionist extreme.

In a recent working paper, economists Thomas Buchmueller and Colleen Cary find that one particular kind of restriction does reduce opioid misuse among Medicare beneficiaries:

The misuse of prescription opioids has become a serious epidemic in the US. In response, states have implemented Prescription Drug Monitoring Programs (PDMPs), which record a patient’s opioid prescribing history. While few providers participated in early systems, states have recently begun to require providers to access the PDMP under certain circumstances. We find that “must access” PDMPs significantly reduce measures of misuse in Medicare Part D.

Yet, they also find

no statistically significant effect [of must access PDMP’s] on a key medical outcome: opioid poisoning incidents.

How is this possible?

The simplest explanation is that, despite all the hype, prescription opioids are not that dangerous, even in heavy doses, when used under medical supervision. Instead, most poisonings reflect use of diverted prescription opioids, or black market opioids like heroin, that users obtain when doctors cut them off from prescription opioids. These alternate sources may be adulterated, of higher dosage than the user realized, or consumed with other drugs that generate adverse reactions.

Under this interpretation, restrictions on opioid prescribing might even increase opioid poisonings. 

The plot thickens in the ongoing battle for the Consumer Financial Protection Bureau, the controversial agency created in the wake of the 2008 financial crisis.  Yesterday, a federal appeals court decided it would grant rehearing of last year’s case, PHH v. CFPB, which held the agency’s structure to be unconstitutional.  The decision issued last year not only ruled the agency’s structure to be unconstitutional, but also placed the director under the president’s authority, giving the president the power to fire the director at will.  Now that the court will rehear the case, its earlier decision is no longer binding, meaning the president can no longer rely on it if he wishes fire Director Richard Cordray.

The bureau is the brain-child of Massachusetts Senator Elizabeth Warren, but even the progressive firebrand did not dream up an agency as powerful as the one that congress ultimately created.  Senator Warren, then a private citizen, initially proposed a commission structure.  While independent commissions, such as the Securities and Exchange Commission (SEC), are constitutionally questionable (they are not directly accountable to the President or Congress, and are therefore outside the three branches of government established by the Constitution), they have the benefit of both precedent and a measure of checks and balances.  As Judge Kavanaugh noted in the initial PHH v. CFPB decision, a structure like the SEC’s allows the commissioners to serve as checks on each other.  The SEC is by law bi-partisan, with no more than three of the five seats filled by members of the same party, and there is pressure for the chair to get consensus from all five commissioners or risk a reputation for divisiveness and partisanship.  Other regulators, like the Commodity Futures Trading Commission and the Federal Trade Commission, have similar structures.

The CFPB, however, was ultimately structured as a bureau headed by a single director, who is removable only for cause.  As I have discussed previously, the problem is not only that this structure is unconstitutional (which is no small problem), or that its mandate to pursue “abuse” practices is frighteningly vague, but that the current director, Richard Cordray, has embraced his power with gusto, expanding the agency’s authority as far as possible (and even further). 

The fall out from the initial PHH v. CFPB decision and the strange intricacies of the Dodd-Frank Act have provided terrific fodder for legal intellectuals everywhere.  The unusual structure of the CFPB coupled with the current president’s unconventional style have taken us to a new frontier, legally speaking. For example, one scholar has argued that the president does not need the court’s permission to dismiss Cordray for cause; because each branch of the government has the obligation to uphold the Constitution, the president arguably could determine on his own that the structure is unconstitutional and that he therefore does not need the judiciary’s permission to remove the current director.  There are also reasons to believe that the president has sufficient support to remove the director for cause (which he has always had the power to do).  Either of these actions would be an extremely bold move by the president, without historical precedent.  And this is where President Trump’s temperament and style come into play; this is not a president terribly concerned with whether he is being too bold.

If the appellate court rules that the CFPB is constitutional, it is likely that PHH will seek to appeal that decision to the Supreme Court (and it is reasonable to think the Court would take the case).  If it rules that it is unconstitutional, typically the agency would be expected to seek appeal itself.  But Dodd-Frank allows the CFPB to pursue litigation in the Supreme Court only with the permission of the attorney general – a presidential appointee.  This raises the question: does Attorney General Sessions give permission?  If not, what happens? 

It is also possible that the appellate court won’t rule on the constitutional question at all.  In the original case, decided by a panel of three judges, one judge declined to rule on the constitutionality of the agency, instead finding that the agency’s actions were improper and that that finding meant there was no need to consider the constitutional question.  The court rehearing the case may make a similar determination, leaving the constitutionality of the agency still an open question for the judiciary.

It is not at all surprising that the D.C. Circuit Court opted to rehear this case.  The case presents important questions of constitutional law.  It does mean that this already long story will only get longer, and more complex.  Even if the court decides not to rule on the constitutional question, it is likely that this open issue will draw other litigants.  I expect a long battle.  Unless, of course, congress takes action first.

Late yesterday The Hill posted a short op-ed I wrote on President Trump’s nomination of Judge Neal Gorsuch to fill the seat of the late Justice Antonin Scalia. As often happens, a couple of editorial changes, especially in the title, muted somewhat the central point of the piece. But even were that not so, that point is worth further attention.

It concerns judicial independence. As I wrote, facing a nominee with impeccable qualifications, Democrats are now crafting an indirect assault against Judge Gorsuch. Thus, they’re pointing to the president’s outrageous attacks on the judiciary, among other things he’s said, and contending that he’s imposed a “litmus test” on the nominee. So they’re demanding that Judge Gorsuch “very explicitly and directly” disavow the president’s remarks, which he has already done respectfully, but in addition that he “very specifically” make his own policy views known in the upcoming confirmation hearings (which we’ve just learned will begin on March 20).

Not only does that second demand fundamentally misconceive the role of a judge, but judicial litmus tests mark the end of judicial independence. If a prospective or actual nominee can be compelled by a president or by the Senate Judiciary Committee to state his policy views with a measure of specificity as a condition of being either nominated or confirmed, then to that extent future cases will be decided not on the law but by politics in the nomination and confirmation processes. And that will be the end of the rule of law, for when all is politics, nothing is law.

Admittedly, this is a dilemma of our system, whereby we select judges under something like a veil of ignorance. But it is inescapable, and we have to live with it because the alternative is worse. Usually, of course, we look for indirect indications of a prospective nominee’s views, but in the case of appellate court judges, those are often not instructive because good judges are bound by law and precedent, more so in the latter case than if they were on the Supreme Court.

And so we go through this “confirmation theater,” which is relatively recent and usually reveals very little about how a nominee will rule in future. That we do, however, is a mark of something much deeper and more disturbing—how divided we are about our fundamental constitutional principles, about which I have written elsewhere in detail and in this context. Were there more agreement we could focus simply on a nominee’s qualifications. With Judge Gorsuch’s confirmation, however, perhaps we will start slowly to move toward resolving those deeper disagreements, for which he is eminently qualified.

To see how little is left of one of our most important rights, the freedom of association, look no further than to today’s unanimous decision by the Washington State Supreme Court upholding a lower court’s ruling that florist Baronelle Stutzman was guilty of violating the Washington Law Against Discrimination (WLAD) when she declined, on religious grounds, to provide floral arrangements for one of her regular customer’s same-sex wedding. The lower court had found Stutzman personally liable and had awarded the plaintiffs permanent injunctive relief, actual monetary damages, attorneys’ fees, and costs.

This breathtaking part of the Supreme Court’s conclusion is worth quoting in full:

We also hold that the WLAD may be enforced against Stutzman because it does not infringe any constitutional protection. As applied in this case, the WLAD does not compel speech or association. And assuming that it substantially burdens Stutzman’s religious free exercise, the WLAD does not violate her right to religious free exercise under either the First Amendment or article I, section 11 because it is a neutral, generally applicable law that serves our state government’s compelling interest in eradicating discrimination in public accommodations.

We have here yet another striking example of how modern state statutory anti-discrimination law has come to trump a host of federal constitutional rights, including speech, association, and religious free exercise. It’s not too much to say that the Constitution’s Faustian accommodation of slavery is today consuming the Constitution itself.

Consider simply the freedom of association right. That liberty in a free society ensures the right of private parties to associate, as against third parties, and the right not to associate as well—that is, the right to discriminate for any reason, good or bad, or no reason at all. The exceptions at common law were for monopolies and common carriers. And if you held your business as “open to the public” you generally had to honor that, though you still could negotiate over services.

Slavery, of course, was a flat-out violation of freedom of association—indeed, it was the very essence of forced association. But Jim Crow was little better since it amounted to forced dis-association.  It was finally ended, legally, by the 1964 Civil Rights Act. But that Act prohibited not simply public but private discrimination as well in a range of contexts and on a range of grounds, both of which have expanded over the years. The prohibition of private discrimination was probably necessary at the time to break the back of institutionalized racism in the South, but its legacy has brought us to today’s decision, where florists, bakers, caterers, and even religious organizations can be forced to participate in events that offend their religious beliefs.

Court’s haven’t yet compelled pastors to officiate at ceremonies that are inconsistent with their beliefs, but we have heard calls for eliminating the tax-exempt status of their institutions. Such is the wrath of the crowd that wants our every act to be circumscribed by law—their law, of course. And they’re prepared, as here, to force their association on unwilling parties even when there are plenty of other businesses anxious to serve them. As I concluded a Wall Street Journal piece on this subject a while ago:

No one enjoys the sting of discrimination or rejection. But neither does anyone like to be forced into uncomfortable situations, especially those that offend deeply held religious beliefs. In the end, who here is forcing whom? A society that cannot tolerate differing views—and respect the live-and-let-live principle—will not long be free.

Amen.

As government workers – though only about a third of private-sector office workers – get a day off Monday 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, in multiple formats.

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 2010 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.

That is the question asked by Scott Alexander and John Cochrane in discussing high school education, college and infrastructure spending. Despite rising funding, it is not clear outcomes are improving.

Scott highlights the example of K-through-12 public education where spending has increased substantially since 1970 but test scores have remained stagnant. He asks:

Which would you prefer? Sending your child to a 2016 school? Or sending your child to a 1975 school, and getting a check for $5,000 every year?

On college he presents a similar counterfactual:

Would you rather graduate from a modern college, or graduate from a college more like the one your parents went to, plus get a check for $72,000?  (or, more realistically, have $72,000 less in student loans to pay off)

He also highlights the rising cost of infrastructure spending through the example of a New York City subway:

1900…it’s about the inflation-adjusted equivalent of $100 million/kilometer today… In contrast…a new New York subway line being opened this year costs about $2.2 billion per kilometer

As Scott outlines, the underlying crisis here is made all the worse by the fact that new technologies and globalization should have put downward pressure on the costs of provision.

Two questions arise: why is this happening and what can be done about it?

This requires a huge amount of research. Certainly it cannot be answered in a blog post. But I want to suggest an analytical framework for thinking about these examples that can be applied in each case to work out what is going wrong. This is all the more necessary because the absence of meaningful prices in the public sector makes measuring productivity much more difficult than in the full market sector of the economy.

Rather than merely comparing money spent to outcomes, we can break things down as follows:

Taxpayer dollars -> Inputs -> Production process -> Outputs -> Outcomes (quality-adjusted outputs)

Take schooling. We pay money in through taxes.  These are used to fund the labor (teachers, administrators etc), to build schools, and to pay for the goods and services used within schools. The schools then operate. And those inputs work to produce measurable outputs in terms of number of children being taught, hours of teaching, exams prepared for etc. But what we really care about is outcomes, which are linked to but not quite the same thing (think test scores). This is best thought of as a measure of quality-adjusted output. Productivity (to the extent we can measure it) can be thought of as the ratio of outputs to inputs, whereas what we ultimately care about here is improving the effectiveness of money spent (outcomes over taxpayer dollars).

This framework allows us to posit different theses (which are not mutually exclusive) for why taxpayer dollars have gone up but outcomes stagnated, which we can test empirically:

  1. The cost of inputs, such as teachers etc, may have risen substantially
  2. The number of inputs necessary may have risen (more administrators and other inputs not previously needed)
  3. Productivity (the ability to turn inputs into outputs) may have fallen
  4. Quality of outputs may have declined (e.g. children’s lessons are now worse than they were before)

My hunch is that there are probably a lot of people doing things in education and infrastructure preparation that have added to the number of inputs necessary but which do little to affect the quality-adjusted outputs we care about directly (think a lot of environmental audits and reports, compliance with regulation etc.)

But before jumping to conclusions, we should really try to measure outputs and inputs directly. In the UK, it was historically assumed that public service outputs were the same as public service inputs (implying stagnant productivity). But in recent years the Office for National Statistics there has put in a lot of effort to try to measure the quality and quantity of public service outputs, albeit imperfectly. It has actually proven very useful. They have produced interesting work which found public service productivity improved in each of the first four years of so-called “austerity,” for example.

Unless I have missed it entirely, similar indices are not currently constructed here. But if we really want to get to the bottom of why taxpayer funding is not producing better outcomes, we need to shine a light on the public sector production process to see where things are breaking down. 

Today the Washington Supreme Court unanimously upheld the fines against florist Baronelle Stutzman for refusing to sell flowers to a long-time customer for his same-sex wedding. Even though the court acknowledged that Stutzman “has served gay and lesbian customers in the past for other, non-wedding-related flower orders,” it found that she had violated the state’s public-accommodations law. In doing so, it rejected her claims regarding the freedom of speech, association, and religious exercise in the face of a legal requirement that businesses not discriminate on the basis of sexual orientation.

I’m still working through the opinion, but it’s all pretty standard – and disappointing – stuff. Notably the court cites and rejects Cato’s brief regarding the freedom of expression, indeed rejecting even the idea that floristry is an expressive art. As I wrote in a blog post explaining this point:

Although floristry may not initially appear to be speech to some, it’s a form of artistic expression that’s constitutionally protected. There are numerous floristry schools throughout the world that teach students how to express themselves through their work, and even the Arts Council of Great Britain has recognized the significance of the Royal Horticultural Society’s library, which documents the history, art, and writing of gardening.

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

Also notably, Washington lacks a Religious Freedom Restoration Act (which is what saved the claims in recent high-profile cases Hobby Lobby and Zubik/Little Sisters of the Poor), so it’s not surprising that Stutzman’s free-exercise claim failed in the face of a generally applicable law. Of course, even a state RFRA failed to save a New Mexico photographer who had similarly worked for gay clients but didn’t want to work a same-sex wedding.

This isn’t the last that we’ll hear about the case; Stutzman’s lawyers have already announced that they’ll ask the U.S. Supreme Court to take it up.

But legalisms aside, these sorts of developments aren’t healthy for our society. There are scores of florists, photographers, and other vendors who would be happy to work all sorts of ceremonies; why do we need to bend every last minority dissenter to the wheel of prevailing ideology? Why can’t we be tolerant and just live and let live?

Despite making numerous comments during the 2016 presidential campaign that indicated he favored a much more realistic foreign policy for the United States, Donald Trump continues to beat a hasty retreat from that position.  His actions once he became president point to a continuation of the stale, needlessly confrontational approach that his predecessors adopted—an approach that has caused so much grief for the American people.

I’ve discussed elsewhere the fawning efforts of Trump and Secretary of Defense James Mattis to “reassure” free-riding U.S. allies of the administration’s undying devotion to the status quo.  Those actions followed an extremely belligerent stance adopted toward Iran, the country that policymakers who are determined to perpetuate America’s foolhardy entanglement in the Middle East view as their favorite designated enemy.

Even Trump’s repeated calls during the campaign for a cooperative relationship with Russia, which outraged American hawks, now seem on the verge of abandonment.  Instead of pursuing a policy toward Moscow based on realist principles, the president is drifting toward a stance based on the same lack of realism that plagued the Obama administration. 

Obama and his advisers, especially the infamous Victoria Nuland, the Assistant Secretary of State for European and Eurasian Affairs, apparently believed that Washington and the European Union could back anti-government demonstrators in Ukraine in their campaign to oust the elected, pro-Russian government without Russia lashing out in response.  They were soon disabused of that notion when the Kremlin promptly seized control of Ukraine’s Crimean Peninsula and subsequently backed rebel forces in eastern Ukraine against the new regime in Kiev. Washington and its NATO allies responded by imposing economic sanctions on Moscow, and relations with Russia have deteriorated rapidly since then, with alarming deployments of both Russian and NATO military forces.

President Trump still insists that he wants to get along with Russia, but his lack of realism about the underlying issues will likely preclude a rapprochement.  In a new briefing, White House Press Secretary Sean Spicer insists that the president expects Vladimir Putin not only to reduce Moscow’s support for the Ukrainian separatist rebels, but to return the Crimean Peninsula to Ukraine unconditionally.

The first demand is a stretch, but the second one is a nonstarter.  There is virtually no chance that Russia will disgorge Crimea.  Not only do most Crimean residents apparently favor an affiliation with Russia rather than Ukraine, but Moscow is determined to secure its longstanding naval base at Sevastopol.  Having that crucial base end up in a foreign country occurred because of the breakup to the Soviet Union.  Moreover, Russians point out that Crimea was part of Russia from the 1780s until 1954, when Soviet leader Nikita Khrushchev transferred control to Ukraine. Since Ukraine and Russia were both part of the Soviet Union, that decision didn’t seem to matter much at the time.  But now both Russians and Americans might well ask why so many U.S. political leaders and policymakers regard with apparent reverence the arbitrary edict made by the communist dictator of a defunct country.

President Trump and other U.S. leaders need to accept the reality that Russia will not relinquish Crimea.  Nor will Serbia be able to reclaim Kosovo, Syria regain the Golan Heights from Israel, or Tibet again become independent from China.  The legality (much less the justice) of all of those territorial changes via conquest are certainly open to question.  But a foreign policy based on realism must accept facts on the ground and deal with situations as they are, not how we might wish they would be. If the Trump administration truly wants a cooperative relationship with Russia, it must abandon its unrealistic demand regarding Crimea.

I testified to a House committee today on Department of Energy (DOE) loan programs. These were the Bush/Obama-era subsidies to Solyndra and other renewable energy businesses.

I discussed five reasons why the loan programs should be repealed:

1. Four Decades Is Enough. The federal government has been subsidizing solar and wind power since the 1970s. These are no longer the sort of “infant industries” that some economists claim need government help. Solar and wind are large and mature industries, and they already receive subsidies from state governments, particularly in the form of utility purchase mandates, which are in place in 29 states.

2. Failures and Boondoggles. The DOE claims that Solyndra’s bankruptcy was the exception, and that the agency’s overall loss rate on loans is low. But as an economist, I’m more concerned with whether the overall benefits of projects outweigh the costs, and that appears not to be the case for numerous projects. The Ivanpah solar project in California, for example, is producing less electricity and consuming more natural gas than promised, and its cost per kwh is at least three times more than for natural gas plants.

3. Corporate Welfare and Cronyism. The Washington Post found that “Obama’s green-technology program was infused with politics at every level.” Public opinion polls have shown plunging support for both politicians and big businesses over the years, and one of the reasons is such cronyism. Businesses and policymakers would gain more public respect if they cut ties to each other by ending corporate welfare.

4. Private Sector Can Fund Renewable Energy. Most DOE loan guarantees have gone to projects backed by wealthy investors and large corporations, such as Warren Buffett and General Electric. Such individuals and companies are fully capable of pursuing energy projects with their own money. Buffett’s Berkshire Hathaway has invested $17 billion in renewable energy since 2004. With that kind of private cash available for renewables, we do not need the DOE handing out subsidies.

5. Subsidies Distort Decisionmaking. Federal energy subsidies create counterproductive incentives in the economy. For example, subsidized firms tend to become slow and spendthrift, thus subsidies undermine productivity. Also, because subsidies are not driven by consumer demands, they can induce firms to invest in activities that will not succeed in the marketplace in the long term.

You can watch the full hearing here. My testimony is here. More background on energy subsidies is here.

David French at National Review criticized Nicholas Kristof’s New York Times op-ed where he wrote that many other hazards like bathtubs, stairs, and lightning strikes are deadlier than foreign-born terrorism on U.S. soil.  French is correct that there is a big difference between dying as the result of an accident and dying as a result of murder (intentional killing committed by another person).  Murder is scarier than an accidental death so people are willing to tolerate more precautionary measures to prevent it.  The costs of death appear to be the same to the victim but many risk analysts disagree.  A 2010 report endorsed by the Department of Homeland Security (DHS) estimated the value of each life saved at $6.5 million but argued that $13 million was justifiable.  Another report estimated the value of a statistical life at $15 million.  People seem to intrinsically be repelled when the chance of being murdered in a terrorist attack is compared to your chance of being killed in a bathtub.

My preferred comparison is your annual chance of being murdered by a terrorist versus being murdered in a homicide.  One in 3.6 million people were murdered in a terrorist attack by a foreign-born terrorist on U.S. soil per year from 1975 through the end of 2015 (one in 3.2 million per year for all terrorist attacks committed on U.S. soil by any perpetrator).  One in 14,219 people per year were murdered on U.S. soil by a non-terrorist homicide during the same period.  Comparing murder by terrorist and deaths by accident is useful for explaining the frequency of rare events.  The understandable desire to compare the likelihood of infrequent yet scary events to other infrequent but less scary events is a useful academic, mathematical, or cost-benefit exercise but it is not effective at convincing people to more rationally view the real risk from terrorism.  People understand there is an important distinction between those who die as a result of murder and those who die from accidents.

However, French’s criticism of Kristof for focusing on terrorism deaths caused by foreigners on U.S. soil is off base.  French’s sarcastic comparison to World War II summarizes his position:

By that logic, never mind about those Nazis. Much ado about nothing. After all, ladders, bathtubs, toddlers, and husbands were all more deadly “in America” from 1939-1945 than the SS or the Wermacht. Millions of died overseas, including hundreds of thousands of Americans, but the Germans couldn’t strike us here at home. So all that hysteria over Hitler? Fearmongering, really. He couldn’t hurt us.

The reason Kristof distinguishes between murders committed by terrorists on the homeland and those killed overseas is because Trump’s executive order is entirely concerned with stopping terrorists from entering the United States and committing attacks here. 

The title of Trump’s executive order is:   “EXECUTIVE ORDER: PROTECTING THE NATION FROM FOREIGN TERRORIST ENTRY INTO THE UNITED STATES.” 

The first header of the executive order is “Protecting the Nation from Foreign Terrorist Entry into the United States.” 

The first full sentence is: 

By the authority vested in me as President by the Constitution and laws of the United States of America, including the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., and section 301 of title 3, United States Code, and to protect the American people from terrorist attacks by foreign nationals admitted to the United States, it is hereby ordered as follows [emphasis added].

President Trump’s executive order limited the scope of the debate to foreign-born terrorists on U.S. soil, so it is perfectly reasonable for Kristof to stick to this issue when criticizing Trump’s executive order.  There may be better justifications for the executive order than those offered by the administration itself but that doesn’t change the fact that the official justification written into the text of the order itself is to prevent terrorist attacks committed by foreign nationals on U.S. soil. 

French also unintentionally makes a compelling argument that the government’s overreaction to terrorism killed far more people than it saved.  He writes that we should count the 7,000 U.S. soldiers who have died abroad fighting jihadists as victims of terrorism.  Assuming his numbers are correct, that means 2.35 U.S. soldiers died abroad after 9/11 in the wars started as a result of 9/11 (even though Iraq wasn’t initially about terrorism) for each innocent victim killed during that terrorist attack.  That seems like a bad exchange.

Those 7,000 U.S. military deaths overseas would have to have prevented at least an equivalent number of American deaths from terrorist attacks to justify the loss of life even though the Iraq War was not initially justified with stopping terrorism and had nothing to do with 9/11.  To prevent 7,000 terrorism deaths since 9/11 would mean stopping about 30 San Bernardino-scale attacks each year.  To put that in perspective, only 80 people have been killed on U.S. soil in any terrorist attack from 2002 to the end of 2015.  It is extremely unlikely that our government’s decision to fight several wars overseas in response to 9/11, even though the Iraq War was not a direct response to that attack, prevented 7,000 deaths from terrorism.  This is just a back of the envelope calculation that excludes non-American civilian deaths in war zones, the costs of property damage not incurred in terrorist attacks that didn’t happen, the cost to U.S. taxpayers of fighting wars overseas, and the potential for blowback.  Including all of those costs and savings would yield a far more depressing number even if the deaths of foreign civilians was not considered. 

French is correct to criticize it when Kristof or others compare dying from a terrorist attack to dying from accidents like slipping in a bathtub.  However, it is unfair for him to criticize Kristof for arguing over Trump’s executive order on rhetorical ground chosen by the Trump administration.  

Senator Chuck Grassley (R-IA) recently introduced S. 179, known as the Accountability Through Electronic Verification Act (ATEVA), to mandate E-Verify in the United States.  The bill would mandate E-Verify for all employers in the United States while also mandating civil penalties for non-compliance of $1000 to $25,000 per violation.  ATEVA also includes criminal penalties of $15,000 per illegal immigrant hired and/or a 1 to 10-year prison sentence for repeat violators.  The bill also includes a good faith clause to prevent punishment of the businessman in case E-Verify makes an error.

If ATEVA were to become law, the mandatory E-Verify portion would go into effect one year after the President’s signature.  Most worrying though is that ATEVA would require all employers to verify their existing employees no later than 3 years from the date of enactment.  The identity of unlawful immigrants who are granted final non-confirmations would then be transferred to Immigration and Customs Enforcement (ICE) for removal.  Of course, ICE would have to locate the person but that is still a worrying increase in enforcement coordination.

ATEVA does not resolve the real and persistent problems with E-Verify. 

The first big problem is that E-Verify is expensive.  Oftentimes it is labeled a “free online system” but nothing supplied by the government is free to the taxpayers who pay for it.  E-Verify is also not free because of the opportunity cost of employers and workers who use the system.  The current I-9 form costs employers about 13.48 million man-hours each year to process.  ATEVA would add to that even if the I-9 is eventually replaced by E-Verify.  Those are a lot of hours that employers could otherwise spend on growing their businesses but instead must waste complying with government rules.

About 46.5 percent of contested E-Verify cases in 2012 took DHS eight work days or more to resolve.  During that time, employers are justifiably reluctant to train new employees who might not be work authorized.  Employers will likely avoid that cost by pre-screening job applicants to exclude those who come back as tentative non-confirmations.  Workers could thus get rejected from every job they apply for but not know that a simple and correctable error in the E-Verify database is the reason.  ATEVA makes prescreening illegal except with the expressed permission of the employee but we shouldn’t expect that to prevent unlawful prescreening by employers who don’t mind breaking labor market regulations in the first place.

The second problem is that E-Verify is ineffective at detecting illegal immigrant workers and the system’s accuracy rates are notoriously difficult to judge.  An audit of the system by the firm Westat found that an estimated 54 percent of unauthorized workers were incorrectly found to be work authorized by E-Verify because of rampant document fraud.  E-Verify relies upon the documents presented by the workers themselves.  Frequently, identity information comes from deceased Americans – a loophole the government seems incapable of closing.  For instance, SSNs for roughly 6.5 million Americans who are 112 years old or older do not have a death date attached which means they can easily be used by illegal workers and nobody would complain.  An illegal worker using the SSN of a deceased American would likely end up work authorized.

Employer avoidance of  E-Verify’s is even more difficult to fix.  Many employers ignore E-Verify even when it’s mandated, just like they ignore other government immigration enforcement rules.  Alabama, Arizona, Mississippi, and South Carolina all mandate usage at the state level, yet usage and enforcement have been lax.  In 2014, only 56 percent of employers in Alabama, 57 percent in Arizona, 43 percent in Mississippi, and 54 percent in South Carolina used E-Verify for new hires despite their state laws mandating that 100 percent of employers must use the system.  ATEVA tries to solve this problem by placing high civil and criminal penalties on employers who break the rules.  Violating I-9 rules currently opens up employers to serious criminal and civil penalties but that hasn’t incentivized many to comply even in states where E-Verify is mandated.  It’s also hard to believe that the government will fine to death many small businesses for failing to use E-Verify properly.   

The third problem is that some Americans would be kicked out of the labor market due to E-Verify.  E-Verify’s inaccuracy rate means that Americans will be barred from work due to false positives.  Roughly 0.15 percent of all E-Verify queries currently result in a false “final non-confirmation.”  While that is an admittedly small percentage, if applied nationwide to an American labor pool of roughly 125 million workers, it would result in 187,500 wrongly issued FNCs to American workers each year.

The fourth problem is that E-Verify is supposed to help curb illegal immigration by turning off the jobs magnet.  In the real world, E-Verify barely altered the wages of suspected illegal immigrants.  In Arizona, the E-Verify mandate lowered the expected wage gain of immigrants from Mexico from 253 percent to 241 percent – hardly diminishing the strength of the wage magnet.  That small effect could even overstate E-Verify’s effectiveness because it includes a period of time before employers and employees learned how to circumvent the system. A national mandate in the near future would confront many millions of employers and illegal immigrants who now know how to get around the system thanks to their experience Arizona and other states.

The fifth problem is that ATEVA will incentivize identity theft.  A huge cottage industry of forged identity documents sprung up after the government first mandated that employers check the identification of new hires in 1986 through the I-9 form.  Just as IRCA gave a big boost to the black market 31 years ago, nationally mandated E-Verify would subsidize it even further regardless of the anti-identity theft provisions in ATEVA.         

The sixth big problem will be the reaction to mandatory E-Verify.  The system’s errors and loopholes mean that it will be quickly rendered useless as an employment verification system – which is the most positive thing I’ll say about E-Verify.  Congress will not react to E-Verify’s failure by throwing up it hands and calling it a day.  Congress would instead integrate other biometric information like fingerprints or perhaps even DNA into a national identity system to close the E-Verify “loopholes” to make the system more effective.  Such a beefed up E-Verify system could easily be used for other purposes like creating a national gun registry.  It is unwise to mandate participation in a new government identity tool that will expand in the future, especially in an era of serious privacy scandals.  

ATEVA is another in a long line of bills introduced to mandate E-Verify in an attempt to force employers to help enforce federal immigration law.  The government should enforce its own laws rather than conscripting employers.  If the government cannot enforce its own laws then that is a signal that its laws should change.  Americans should not have to ask government permission to work from a federal government database.  If ATEVA were to ever become law, it would be an expensive new scheme that would fail to help enforce our immigration laws and likely lead to more invasive forms of national identification.

Special thanks to Scott Platton for his help in writing this.

Michael Flynn’s resignation as National Security Advisor is good news, mostly because it makes it slightly less likely that the Trump administration will blunder into a foolish war, especially with Iran. It won’t be the end of the scandal though, as it is hard to believe that the President was totally unaware of Flynn’s actions.

Flynn’s fall is surprising only for its speed. Since he gained prominence as a Joint Special Operations Command intelligence officer in Iraq for helping to develop the “find, fix, and finishmethod of seizing or killing suspected insurgents and terrorists, Flynn has, to put it mildly, showed a deficit of the sound judgment needed in a National Security Advisor.

As head of the Defense Intelligence Agency, Flynn apparently pushed analysts to hype Iran’s malign influence and to find evidence that it had a hand in the 2011 Benghazi attack, feuded with senior staff, demonstrated hostility to dissent, favored conspiracy theories, and got fired for some combination of those things and generally poor management.

He wrote an overwrought book with Michael Ledeen which includes various dubious and unsubstantiated claims, especially about Iran, including that it is allied against the United States with jihadists, North Korea, China, Russia, Iran, Syria, Cuba, Bolivia, Venezuela, and Nicaragua.

In his speech at last year’s Republican National Convention, Flynn essentially accused Hillary Clinton of treason for her email server debacle, despite his own dubious record in handling classified information. And, while receiving classified intelligence briefings along with Trump, Flynn was secretly employed as a lobbyist for Turkish interests, a fact that he hid while taking Turkey’s line in an op-ed endorsing the extradition of Fethullah Gulen. Around that time, Trump was attacking lobbyists and subsequently pretended to bar them from his administration.

Maybe surviving and even profiting from those misjudgments encouraged the reckless and possibly illegal actions that led to Flynn’s resignation. As everyone that reads the news knows, Flynn may have violated the Logan Act, which bars unauthorized citizens from meddling in U.S. diplomacy, when on December 29, in a series of calls, he told Russian Ambassador Sergey Kislyak that the Trump administration would reverse the sanctions that the Obama had just imposed on Russia for its pro-Trump hacking and leaking.

You don’t have to be a former head of the DIA to know that U.S. intelligence agencies intercept the Russian’s ambassador’s cellphone calls. That’s why it’s baffling that Flynn lied to Vice President Pence (and the media) about the content of the calls, which created concern among Justice Department officials that he could be blackmailed by Russians. That lie, more than Trump’s concern about propriety, seems to be why Flynn was likely to be fired, and thus preemptively resigned.

We shouldn’t expect too much from Flynn’s replacement, given who is picking and the fact that most qualified candidates, having seen the Trump White House in action, will want no part of it. Still, at the risk of sounding like the president, it’s hard to see how it could get worse. The retired generals that Trump is predictably considering for the post are less belligerent and better-suited to deflect his worst instincts.

Flynn’s resignation probably won’t end the scandal. It’s doubtful that his pre-inaugural talk with the Russian ambassador was a one-off. According to intelligence reports cited by the Washington Post, Flynn was communicating with Kislyak during the campaign. Nor is it likely that Flynn acted without Trump’s approval. Note that the president-elect tweeted his approval of Russia’s non-response to the sanctions on December 30. It is possible that Flynn’s actions were part of the broader set of conversations between the Trump campaign and Russian officials, now the subject a counterintelligence investigation.

Maybe Flynn will have something to say about all that now that he’s out of a job. He ended his resignation letter like a good Trump soldier, calling on Americans to work to “Make America Great Again.” But otherwise he sounded petulant and barely contrite, admitting only to “inadvertently briefing” Pence and others with “incomplete information,” and blaming his error on the “fast pace of events.”  

I’m tempted to say that no one would so blatantly work with a rival state to undercut U.S. diplomacy. Why not at least use intermediaries outside the campaign, like Nixon did in 1968 when he undermined U.S. peace talks in Vietnam to beat Hubert Humphrey? But, if we didn’t know it three weeks ago, it’ become clear that under Trump, incompetence can’t be underestimated.

Todd Farha, CEO of WellCare Health Plans, was convicted of knowingly executing a fraud by submitting false expenditure reports to the state. However, the district court decided that “knowingly” didn’t actually have to mean that Farha knew that the reports were false, but only that in submitting the reports Farha acted with “deliberate indifference” as to whether they were accurate. Essentially, a non-lawyer was convicted for being insufficiently cautious in adopting an interpretation of an ambiguous regulatory statute.

The U.S. Court of Appeals for the Eleventh Circuit upheld Farha’s conviction even in the absence of the required statutory mental-state element (what lawyers call mens rea). The appellate court decided, in agreement with the district court, that deliberate indifference toward falsity may stand in for knowledge of falsity. The practical implication is that the court lowered the mens rea standard and used a civil standard of liability to a criminal case. (You can be liable in a civil lawsuit even if you’re not guilty for criminal-punishment purposes.)

Cato has now filed a brief supporting Farha’s request that the Supreme Court review his case. The lower court’s holding is out of step with precedent, with bedrock principles of statutory interpretation regarding the mental-state elements of a criminal offense, and with common sense notions of justice. The most egregious aspect of the ruling is that mens rea elements are seen as so crucial to the criminal law that the Supreme Court has been willing to read them into a statute when the statute is silent regarding necessary mental state.

Yet the Eleventh Circuit took the opposite approach and read out of the statute mental-state elements that make the crime too hard to prosecute. This decision is especially troubling in an era of over-criminalization, with an estimated 300,000 separate federal crimes. This situation is exacerbated by the fact that many of the crimes are inherently complex, leading to ambiguity in underlying regulatory-compliance requirements that makes it incredibly challenging for people to understand what they must do to avoid liability.

Unfortunately, instead of attempting to rectify some of this ambiguity, the court here added more ambiguity—because arguably any crime can have a lower mental-state requirement added by the court at trial. This ruling has given prosecutors more weapons and made it even harder for businesses to comply with rampant regulations and made their owners and officers subject to arbitrary legal jeopardy. Many people will now be stripped of their liberty simply on the grounds of an incorrect interpretation of complex and ambiguous statutes. With the deck already stacked in favor of the government—and with myriad civil remedies available—there’s no logical reason to add the weapon of a diluted mens rea to the government’s arsenal.

For further discussion of Farha v. United States and other issues attending regulatory crimes, tune into this Federalist Society teleforum today at 3pm ET (and the audio recording should appear at that link later).

I have previously reviewed the ineffective arguments that the Trump administration has used to rebut the statutory argument against its nearly complete ban on immigration from seven majority Muslim countries in State of Washington v. Donald Trump. This argument will have a more direct bearing on two other cases, one by the American Immigration Council in Washington (Ali V. Trump) and another by the American Civil Liberties Union in Maryland (IRAP v. Donald Trump). The formidable Josh Blackman, Cato adjunct scholar and Associate Professor of Law at the South Texas College of Law, thinks he may have found a couple of ways to save the statutory (as opposed to constitutional) case for the government. He explains them in a series of posts on his blog (see 1, 2, 3, and 4).

An Apparent Conflict

My argument has rested on section 202(a)(1)(A) of the Immigration and Nationality Act (INA), as amended in 1965 (8 U.S.C. 1152(a)(1)(A)):

Except as specifically provided in paragraph (2) and in sections 101(a)(27), 201(b)(2)(A)(i), and 203 of this title, no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.

The Trump administration has insisted that it nonetheless has the authority to discriminate under section 212(f) of the INA (8 U.S.C. 1182(f)), as originally enacted in 1952:

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

I have previously noted in more detail that in the case of such a conflict, the rules of construction dictate that section 202 must be seen as limiting (not repealing) section 212 because 1) it was enacted later in time, 2) it is a more specific restriction on a general authority in 212, 3) it would cease to have effect if 212 could be invoked to discriminate at any time, 4) it specifies with added emphasis (“specifically”) the only statutory exceptions to the non discrimination rule (leaving out 212(f)), and 5) it fits into a statutory scheme that was intended to produce a legal immigration system in which each nationality was allotted an equal share of the annual visa quotas, which compose the remainder of section 202.

If section 202 does limit section 212, then banning a nationality from the United States would not be a “facially legitimate” reason for denying the visa (see Kerry v. Din).

Entry v. Visa Issuance

Professor Blackman does not appear to dispute this analysis. Rather, he argues that the sections are actually not in conflict at all because 212 refers to “entry,” while 202 refers only to the “issuance of an immigrant visa.” Because an immigrant visa does not guarantee the right of entry under section 221(h), he argues that the government could deny entry, even if it was unbiased in visa issuance. To begin with, this interpretation would mean that the government could discriminate in adjustment of status adjudications of immigrants inside the United States, even without a presidential proclamation that these immigrants are detrimental to the United States. Is the government really prepared to argue that Congress specifically made this option available to the administration? 

Of course, it did not. As I explained in my last post, the use of section 212(f) imposes a ground of “inadmissibility” that applies equally to entry and visa issuance. While denial of entry and denial of a visa are indeed two separate activities, the imposition of a ground of inadmissibility is not. It automatically applies to both, which is why all 212(f) proclamations are also added immediately to the Foreign Affairs Manual that governs visa adjudications. Thus, the government cannot discriminate under 212(f) without violating 202(a)(1)(A). This is why the executive order admits that the Secretary of State will be enforcing it at consulates abroad to the same extent as the Secretary of Homeland Security in the United States and why the department immediately suspended visa issuances.

The professor responded to this point by stating that section 212(f) “is not a simple admissibility policy, but a far broader power to exclude those who are detrimental to American interests.” I have never heard of simple (or complex) admissibility policies. One requirement for admission is that a person be eligible to enter the United States legally. This is no different or more complex than the many other types of inadmissibilities listed in section 212. If a person is inadmissible because they cannot lawfully enter, they are inadmissible to the same extent and in the same way as if they had a dangerous communicable disease.

Moreover, as I have also pointed out last year and in my recent post, it is inaccurate to understand “visa” in section 202 to mean only the visa document that grants the right to travel to and request entry at a port. “Visa” is defined to include “status” in section 202. Thus, section 202(a)(1)(A) actually means “no person shall be discriminated against in the issuance of an immigrant visa or legal permanent residency status.” The determination of eligibility to enter is the determination of whether to issue legal permanent residency status to the alien (note how the INA creates an equivalency between being granted entry and otherwise being granted status). Because denying entry to certain nationalities would discriminate in the issuance of status, the government would be in violation of 202(a)(1)(A) just as much by denying entry or status as by denying visas. 

The fact that sections 202 and 203 include “status” becomes especially clear in the text when, in subsection (d) of section 203, it describes spouses and children of primary applicants as “entitled to an immigrant status and the immediate issuance of a visa.” More importantly, if the government defined “visa” to mean only the visa document allowing the person to come to the United States to request entry, then Congress’s carefully constructed “visa” quotas in sections 202 and 203 would not include status determinations for individuals residing inside the United States on temporary visas. This would be at odds with the State Department’s own regulations requiring that not only that the visa caps include status determinations, but that they only include them visa issuances.

While I personally would welcome this change, as it would surge immigration levels to heights not seen since the early 20th century, it is at odds with nearly every possible detail of the legislative history or publicly understood meaning of the text for over 6 decades. This argument would require the government to argue that Congress really wanted to limit the number of documents, not the number of actual persons entering and residing in the country. As the Supreme Court put it in Davis v. Michigan Dept. of Treasury, “It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” The statutory scheme is about limiting immigrants, not travel documents.

This does not mean that a person with a visa would be entitled to enter, but rather that each nationality (as well as race or gender) would simply be entitled to equal treatment at a port of entry. Notice the wording of section 221(h): 

Nothing in this chapter shall be construed to entitle any alien, to whom a visa or other documentation has been issued, to be admitted the United States, if, upon arrival at a port of entry in the United States, he is found to be inadmissible…

Each applicant could still be excluded based on other grounds of inadmissibility. Section 202(a)(1)(A) simply removes the power to declare someone inadmissible based on their nationality.

Moreover, as Justice Scalia once wrote, “it is a venerable principle that a law will not be interpreted to produce absurd results.” A system under which the government is required to issue visas (or statuses) that it has no intent to honor, I submit, is indeed absurd. Ian Samuel highlights the absurdity to nice effect: 

When it passed the no-discrimination rule, the Section 1182 enthusiasts imagine, Congress was perfectly fine with excluding people from the United States on the basis of national origin. It simply wanted that exclusion to happen at the border, rather than at the foreign consular office. “No Irish shall be admitted,” the President (on this view) may say; “but of course you are absolutely entitled to come and see the sights of Terminal 4.”

I suspect that if presented with these facts, only a judge with no sympathy whatsoever for the view that Congress can constitutionally restrict the authority of the president in this area, as Professor Blackman seems also to believe, would adopt this opinion.  

Visa Revocation v. Visa Issuance

Professor Blackman, however, reasons that, even if this is true, the administration still possesses the authority to revoke visas under section 221(i). But this is just word games. Revocation is nothing more than “the reversal of an act.” Thus, to revoke an issued visa is to un-issue the visa. But the text is clear that decisions over issuance cannot consider nationality. The professor’s uber-literalist reading would mean that section 202(a)(1)(A) would not protect against discrimination in the denial of a visa either, only in its issuance.

Moreover, think about this scheme that the government asserts Congress created. Congress mandated that each nationality receive an equal share of the annual immigration quotas and that the administration maintain waiting lists for each nationality. It required that after any waiting period, immigrants’ nationality not be taken into account in the issuance of visas or status. Yet at the same time, it allowed discrimination against immigrants after they received their visas or statuses. Apparently, Congress was very concerned about rooting out bias in paperwork, but not in actual practice.

This proposed scheme defies the Supreme Court’s requirement that courts must “fit, if possible, all parts [of the statute] into an harmonious whole.” Moreover, this system is no less “absurd” than the one in which the immigrants are allowed to land at Dulles International Airport only to be turned back. Issuing visas with the intention to revoke them amounts to governmental deception. It would be very much like if a court ordered railroads to issue tickets to people without regard for race, and the companies complied, only to revoke them seconds later. 

Visa Procedures v. Visa Issuance

Professor Blackman still provides one final “out” for the administration, citing the exception to the subparagraph (A) of section 202(a)(1) in subparagraph (B):

(B) Nothing in this paragraph shall be construed to limit the authority of the Secretary of State to determine the procedures for the processing of immigrant visa applications or the locations where such applications will be processed.

This provision was adopted in 1996 to allow the Clinton administration to require Vietnamese living illegally in Hong Kong to travel back to Vietnam to apply for immigrant visas. The administration argued that it was already permitted to take these actions as part of its inherent foreign affairs powers (the government’s constitutional argument), but in 1995, the D.C. Circuit found the administration in violation of the discrimination prohibition in section 202(a)(1), stating that “Congress could hardly have chosen more explicit language.” Congress implemented subparagraph (B) in 1996 before the Supreme Court could hear the case. As a result of the change, the D.C. Circuit reversed, holding, “the State Department policy is unreviewable” because this “section grants to the Secretary discretion to prescribe the place at which aliens apply for immigrant visas…”

Professor Blackman argues that a permissible construction of the amendment would allow the administration to implement the immigration ban as “procedure” for processing applications. Even the government had trouble getting out this argument with any certitude. Its brief merely stated that it “suggests that maybe” the ban could be viewed as  “procedure.” It was hesitant with good reason. This interpretation would completely neuter subparagraph (A)’s prohibition on discrimination, which Congress consciously chose to leave in place rather than repeal in 1996. Subparagraph (A) bars discrimination in visa issuance. The executive order is about discriminating in the issuance or non-issuance of visas or statuses. Defining the refusal to issue a visa as a “procedure” renders subparagraph (A) a nullity, and as the Supreme Court stated in Smith v. Robinson (1984), statutes “should be interpreted so as to give effect to each.” Taking the word “issuance” seriously demands that it at least refer to the decision over whether to issue a visa.

How Congress understood the law 

While textualists like Professor Blackman disfavor the unenacted intentions of Congress, the legislative history can enlighten us to the publicly understood meaning of the law at the time it was enacted (such as whether the visa limitations were interpreted to mean limitations on documents or limitations on persons). It is clear from the debate over the Immigration Act of 1965, particularly section 202, that the entire purpose of the Immigration Act of 1965 was to end the earlier system of immigration based on national origin.  

President Johnson’s Message to Congress: The principal reform called for is the elimination of the national origins quota system. That system is incompatible with our basic American tradition. … The procedures imply that men and women from some countries are, just because of where they come from, more desirable citizens than others. …In addition, the bill would… eliminate the discriminatory “Asia-Pacific triangle” provisions of the existing law.

Senate Committee Report: The principal purpose of the bill, as amended, is to repeal the national origin quota[s]. …The new selection system is based upon a first-come, first-served principle, without regard to place of birth, within the preference categories, subject to specified limitations designed to prevent an unreasonable allocation of visa numbers to any one foreign state.

House Committee Report: The purpose of the bill is the elimination of the national origins system as the basis for the selection of immigrants to the United States. …[quoting President Truman] The greatest vice of the present quota system, however, is that it discriminates, deliberately and intentionally, against many of the peoples of the world. …By this legislation… the last vestige of discrimination against Asian persons is removed from the immigration laws. …The rationale for the abolition of the national origins quota system is that it deliberately discriminates against many of the peoples of the world.

President Johnson’s Signing Statement: [O]ver four decades the immigration policy of the United States has been twisted and has been distorted by the harsh injustice of the national origins quota system. … Today, with my signature, this system is abolished. We can now believe that it will never again shadow the gate to the American Nation with the twin barriers of prejudice and privilege.

Over and over again, in the congressional record, we hear comments about replacing “insensitivity and discrimination with concern and equity” or sweeping away “any discrimination on account of race” or overturning “discrimination in past years against friendly nations and friendly people” or ending “discrimination and implied favoritism for the nationals of some countries against the nationals of other countries” or discarding “our outdated and discriminatory immigration laws.”  On section 202 in particular, Sen. James Easterland commented:

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

At the very least, we can say that no member of Congress was interpreting “visa issuance” to mean that the 1965 act might not actually change the composition of legal immigration or that the president could clarify that these detrimental Asians were still unwelcome “at entry.”

Professor Blackman notes that under section 202(a)(2), applicants from countries with more applicants are, in fact, still discriminated against based on nationality. Because each country—no matter how large or small—receives an equal share of the visas, applicants from populous countries with large numbers of visa applicants are disadvantaged, as I have written about repeatedly. This was an unfortunate concession in 1965, but it has no impact on section 202(a)(1)(A) because this type of discrimination is one of the specific exceptions to the rule. Indeed, the mere existence of such specific exceptions proves that Congress considered when to allow discrimination and chose not to allow it under section 212(f).

Despite this concession, the new quota system—even if it still accounts for birth in a way—still means, as the professor himself puts it, that every national from “each country has the same opportunity to petition for a visa and receive a visa up to the limitation.” This is exactly the opportunity being denied to nationals of the seven barred countries. (On this point, Peter Margulies has interesting argument that the mere existence of the INA’s complex edifice of numerous “specific and detailed provisions” itself provides a reason to view the executive order as unlawful—an argument that he, Blackman, and Cato’s Ilya Shapiro used to great effect in Cato’s amicus brief in U.S. v. Texas.)

No exception for difficult to screen individuals

Nor did Congress intend for there to be an exception to the rule for countries where it is difficult to screen immigrants. During the hearings on the bill, the Judiciary Committee heard testimony against the bill, arguing this point:

It is virtually impossible, according to security officers, to screen out Communists among refugees from Iron Curtain countries for the excellent reason that there is no way to substantiate or refute biographical evidence which they submit. An increase in immigration from the countries of Eastern Europe or Red China, both of which are dominated by Communists, could only increase this danger.

And:

It is an impossibility—and I think you can get the Immigration Service to verify this—to set up a sufficient screening process to be sure that China would not send to this country literally thousands of persons who have as their first and foremost idea espionage operations against the United States—Communist plants. I do not think it is possible under the present setup in the Immigration Service to screen these people… it is inconceivable for me to believe that every one of these refugees is an anti-Communist.

And in the most Trump-like language:

Our proposed policy under S. 500 would seem to invite a reenactment of the chronicle of the Trojan Horse wherein the enemies of our way of life are willingly brought within our walls.

Congress debated this exact point of whether the Immigration Act of 1965 would result in the entry of unvetted immigrants. As Rep. O.C. Fisher said on the House floor during this debate:

Mr. Chairman, there is a serious security threat which would result in the expected substantial increase in Asiatic migration to these shores. At the present time, the flow of Asiatics to this country is checked by the simple device of quota limitation to which all Asiatics are chargeable. With a substantial increase in immigration of Asiatics, coming not only from the Orient, but from every country in which they reside, the problem of procuring background information to screen out subversives becomes increasingly difficult. Moreover, most of the background information regarding Communist activities would be located in oriental Communist countries; and hence unavailable to our security officials.

Furthermore, the language barriers, with the many dialects unfamiliar to our immigration officers, would only compound the danger inherent in an attempt to screen out security threats; and I have no doubt that the international Communist conspiracy will avail itself of the opportunity to increase its penetration of our country. The passage of this bill will present an inviting opportunity. It has been argued that because some European countries now have a larger annual quota than others, this country regards the people of the larger quota nations as being better people than those in countries with the lower quotas. That is a ridiculous argument. Immigration laws, like trade laws and the like, come under the normal exercise of sovereign power. (My emphasis).

The congressman’s entire argument here is the Trump administration’s case. An unbiased immigration system will allow into the country people who are difficult to screen. In this way, he argues that discrimination is not malevolent, but merely a matter of national security under “the normal exercise of sovereign power.” Congress determined that this concern was not a valid reason for banning (or nearly banning) certain nationalities. Judiciary Chairman Rep. Emanuel Celler, the bill’s main author, dispatched with it as follows:

There can be no fear of Communists or subversives entering this country. The same safeguards that are in the law with reference to internal security are maintained. They are not changed one iota; therefore, there should be no fear in that connection.

Over in the Senate, Senator Everett Dirksen, the Republican Minority Leader, responded:

It has been said that we shall get a great number of undesirables. None of the screening process which has been carried in existing law has been forfeited in the pending bill. Applicants still have to be screened.

Congress considered Donald Trump’s argument and rejected it. The idea that President Johnson could have signed the law and used section 212(f) to undo Congress’s work to implement the exact type of discrimination that it had repealed is preposterous. The Trump administration is violating both the spirit and the letter of the law.

It’s been a busy time for nuclear weapons-related news—between President Trump’s alleged confusion about and denouncement of the New START arms reduction treaty with Russia on Friday, the White House’s subsequent assurances that the president understands the treaty, and North Korea’s missile launch test over the weekend.

The people behind the “Doomsday Clock,” have declared that the world is “two and a half minutes to midnight.” That’s the closest we’ve allegedly been to Armageddon since 1953, when both the U.S. and Soviet Union first possessed thermonuclear weapons.

A graph from HumanProgress.org might help put the current fearful commotion in perspective.

The U.S. has 4,000 nuclear warheads stockpiled and Russia has 4,490, according to the Federation of American Scientists, a group devoted to arms reduction, as of their latest data update on January 31st of this year. 

How dangerous is a single warhead? That varies. The most powerful one ever made, the Soviet Tsar Bomba, detonated in a remote area in 1961, created a fireball with a radius of nearly two miles, and a thermal radiation blast able to cause third-degree burns within a radius of almost 50 miles. North Korea’s most powerful warhead tested to date, in contrast, would cause third-degree burns within a radius of less than 2 miles. (If you’re curious about exactly how much of your hometown a warhead would destroy, there’s an app for that).

The graph shows that the U.S. and Russia still have enough warheads to wage a deadly nuclear conflict, but the situation is a far cry from how things stood during the Cold War. The U.S.S.R.’s number of warheads peaked at 40,149 in 1986; the U.S.’s peaked earlier, at 31,255 warheads in 1967. In other words, Russia’s stockpile of warheads today is 11% of what the U.S.S.R.’s was at its peak. The U.S.’s stockpile is 13% of what it was at its peak.

The tension between the two great nuclear powers is also far lower today than it was in the days of constant nuclear drills for schoolchildren accompanied by inane videos. As my colleague Ted Galen Carpenter put it, President Trump has repeatedly “angered advocates of a new Cold War against Russia,” through his eagerness to cooperate with Moscow. (However, he has also pointed out that the recent spat over New START might signal a change in Trump’s attitude towards Russia).

No one can predict the future, but a little historical perspective suggests that the threat of a nuclear apocalypse is farther than the Doomsday Clock’s hands claim.

You can explore data on the other nuclear powers’ stockpiles (excluding secretive North Korea’s) here.

Donald Trump’s comments about U.S. foreign policy during the 2016 election campaign offered some promise of a policy bright spot in what was otherwise likely to be a dismal, if not alarming administration. Trump condemned the Iraq War for the folly it was and he displayed a distinct lack of enthusiasm for the entire concept of nation building. He also subjected Washington’s long-standing alliances in Europe and East Asia to withering criticism. Trump quite accurately termed NATO “obsolete,” and he took allies in both regions (as well as countries such as Saudi Arabia) to task for shamelessly free riding on America’s security exertions. Such comments continued even when he became president-elect.

Unfortunately, hopes for a more focused and enlightened U.S. foreign policy are fading fast. Trump administration officials had barely arranged the personal photos in their new offices before adopting a belligerent policy toward Iran. The imposition of new sanctions on Tehran threatens to derail a bilateral relationship that had shown cautious signs of improvement under Barack Obama. Trump seems even to be backing away from his call for improved relations with Russia. Expectations for an easing of sanctions against Moscow are at least on hold, and the president’s initial telephone conversation with Vladimir Putin apparently included comments sharply criticizing the New Start Treaty on nuclear weapons as unfairly limiting Washington’s ability to modernize and possibly expand its nuclear arsenal. That’s not a very astute way to begin a process of rapprochement.

Worse yet, as I discuss in a new article in the National Interest Online, Trump and his advisers are beating a rapid retreat from his critical comments about Washington’s alliances. One of his first actions as president was to reassure German Chancellor Angela Merkel and other European leaders that he regarded NATO as having “the utmost importance.” Why an alliance that he had repeatedly termed obsolete now possessed such importance Trump did not explain.

The president also dispatched Secretary of Defense James Mattis on a trip to East Asia to reassure both Japan and South Korea of America’s undying devotion to their security. Trump himself did the same during his just-completed summit meeting at the White House with Japanese Prime Minister Shinzo Abe.

Such a retreat from the positions Trump advocated during the campaign is unfortunate. The Mattis “reassurance tour” provided a green light to Seoul and Tokyo to continue underinvesting in their defense and perpetuate their policy of free riding on the United States. It also encouraged Japan to take uncompromising positions toward China that Tokyo cannot back up with its own military resources. That point is most evident regarding the territorial dispute between the two countries over the Senkaku/Diaoyu island chain in the East China Sea. Mattis reiterated the foolish commitment that Obama administration officials had made that the U.S.-Japan defense treaty covered not only indisputable Japanese territory but those highly disputed islets. In the event of an armed conflict, America would be putting its security at risk to defend a pile of uninhabited rocks whose rightful ownership is uncertain.

That is not the hallmark of a new, more focused and realistic foreign policy. Instead of putting America first, Trump’s policy appears increasingly to be a continuation of the status quo of incurring risks to validate the sometimes parochial interests of allies. Washington needs to reassess all of its security commitments, even to longtime allies. The world has changed a great deal since those alliances were created. Trump’s retreat from his campaign positions also threatens to continue America’s foolhardy entanglement in the murky conflicts of the Middle East. The administration’s immediate obsession with and hostility toward Iran is especially worrisome.

Trump’s retreat and the adoption of his revised approach to foreign policy is extremely unwise. It is a blueprint for perpetuating America’s strategic overextension and wasting even more of this country’s blood and treasure.

 

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