Policy Institutes

I write at Politico Europe

Charee Stanley, an American flight attendant and recent convert to Islam, just filed a discrimination complaint against her employer, ExpressJet, because it won’t excuse her from serving alcohol to passengers. Stanley’s backers at the Michigan chapter of the Council on American-Islamic Relations (CAIR) say that for a time Stanley worked out an arrangement for other attendants to handle liquor serving duties, but it broke down.

Stanley’s scruples about screwpulls instantly drew the attention of culture warriors, who after a whole week spent bickering about defiant Kentucky clerk Kim Davis — in terms of online controversy, practically a Thirty Years’ War — pivoted deftly to the Stanley case and away from Davis’s refusal to license same-sex marriage as her job requires her to….

Here’s the thing: The EEOC has already sided with Muslim employees who wish to avoid handling alcohol. In 2013 the commission sued the Star Transport Co. in Illinois for failing to provide a reasonable accommodation to two Muslim truck drivers when it dismissed them for refusing to haul booze, a case that appears still to be pending.

More here. With religious accommodation in the workplace so much in the news, I’ve recently written four pieces on the subject, including my post last week in this space about the Kim Davis case (see also Ilya Shapiro’s). I’ve also written a lengthy essay on EEOC v. Abercrombie & Fitch, the hijab-accommodation case, for the forthcoming Cato Supreme Court Review, which I’ll be discussing at Cato’s Constitution Day next week (September 17). Previously in this space I’ve related issues such as government accommodation of religiously-based adoption and foster care agencies, and the wars under state anti-discrimination laws over cake-baking and related wedding services.

Finally, at Newsweek, just out, I’ve written an extended analysis of the problems with what is called the First Amendment Defense Act (FADA), a current social-conservative priority:

FADA as currently drafted isn’t really an accommodation law. It’s an our-guys-win law. It says that even if the government has set you up as the monopoly provider of some service or gatekeeper for some permission, you may use that monopoly or gatekeeper status against same-sex couples and their interests with entire impunity.

Should Republicans really be rushing to endorse this bill?

Dale Carpenter at Volokh Conspiracy has further thoughts on the potential constitutional infirmities of the bill, along with kind words for my article. 

On Monday, my colleague Caleb Brown will sit down with Trevor Butterworth, Director of Sense About Science USA and editor for STATS.org, for a live discussion as a part of our Cato Connects series.

Sense About Science’s mission is to advocate for the public interest in sound science and evidence as the basis for informed decisionmaking and political engagement. “The challenge,” Butterworth says, “is that science is not always sound and that evidence is often missing — or misinterpreted or manipulated. The opportunities for making poor policy decisions — or cherrypicking the data to fit a belief or policy objective — are enormous.” As a result, discussions on everything from GMOs to medicines to recreational drugs to the environment, and to nutrition have become more and more politicized and less and less insightful.

Tweet your questions about the relationship between governments and science with the hashtag #CatoConnects and join us at 2:00 p.m. on September 14, when Trevor Butterworth will answer live from the Cato Institute. Be sure to share our event invite on Facebook, and follow @CatoCSS and @CatoEvents on Twitter for news on upcoming events!

A new report from the National Association of Criminal Defense Lawyers highlights the myriad inadequacies in the current system of federal indigent defense. 

NACDL identifies “Seven Fundamentals of a Robust Federal Indigent Defense System,” including a system insulated from judicial interference, adequate funding, sufficient training and expertise among indigent defense lawyers, and greater transparency, and finds each of them to be lacking under current circumstances.

The nuts and bolts of how the current system fails to adhere to those fundamentals can be found in the full report here.

Notably, one reform that is entirely absent from the report is the introduction of client choice and free market competition into the indigent defense system. 

As the NACDL report itself notes:

Short of warfare, there is no more awesome use of governmental power than the power to prosecute.  A criminal prosecution can result in life-altering consequences, including the loss of reputation, property, liberty, and even life itself.  For this reason, the founders of this nation recognized that no person should stand alone against a criminal prosecution.

Given the stakes, it seems bizarre that those individuals who have the entire weight of the state brought to bear against their liberty should depend on that very same state to choose the person to represent them.  It’s certainly true that public defenders tend to be undercompensated and buried under incomprehensible caseloads; but it’s just as true that a public defender system fails to respect the agency of the people who have the most at stake.

The introduction of defense vouchers, which would allow indigent defendants to choose their own lawyers rather than have that all-important decision made at random by a judge or public defender, was the subject of a Cato Policy Analysis in 2010 by David Friedman and Stephen Schulhofer. It would allow defendants a say in their representation and force lawyers to compete to serve them. In doing so, it would come closer to ensuring those fundamental principles of indigent defense than any entirely government-run system is likely to.

The voucher idea is not just a theory; a version of it has now been implemented in Comal County, Texas, which you can read about in more detail here.

When the government takes the immense step of putting someone’s life or liberty in jeopardy, why shouldn’t that person have at least some choice in who will defend them?

From humble beginnings, a new musical has moved onto Broadway this July. Quite fitting, in a way, for the story of an American who was all about moving onward and upward. The play is called Hamilton, the story of our youngest founding father and the man on the 10-dollar bill (for now). Hamilton, created by Tony and Grammy award winner Lin-Manuel Miranda, is destined for success. The critical darling sold out 119 performances at the off-Broadway Public Theater and brought in $27.6 million, with over 200,000 tickets sold before its July 13th opening. These are huge numbers for Broadway, and among the biggest pre-opening totals in history. Nonetheless, the popularity surrounding Hamilton the man and Hamilton the musical does not come at an auspicious time for one of America’s heroes.

 On June 17th, Treasury Secretary Jack Lew shocked many, including former Chairman of the Federal Reserve Ben Bernanke, when he proclaimed that Alexander Hamilton (1755-1804)–the first and foremost Treasury Secretary–would be demoted and share the ten-dollar bill with a yet unnamed woman. Undaunted by widespread criticism, Secretary Lew continued to press his case at an event at the Brookings Institution on July 8th. When asked about the ten-dollar bill’s selection, Secretary Lew insipidly claimed that it was the “next up” for redesign in order to combat forgery. The diminution of Hamilton, for whatever reason, is simply indefensible.

 I would say that Secretary Lew should do himself a favor and buy a ticket to “Hamilton,” but he’s already seen it. How ironic. On August 26th, Secretary Lew, former Secretary Timothy Geithner, and former Secretary Robert Rubin were all coincidently at the same Hamilton performance. As Mr. Rubin remarked: “[Hamilton’s] sense of fiscal responsibility is still alive in the Treasury—people do identify with [him].” Mr. Lew echoed Mr. Rubin’s observations by saying, “Alexander Hamilton left an enduring mark on our nation, and all of his successors, including me, are indebted to him.” I, however, am having a hard time believing that Mr. Lew is being honest on the matter.

Does Mr. Lew know who Alexander Hamilton was? Hamilton was a world-class financier. He established a federal sinking fund to finance the Revolutionary War debt. Moreover, he engineered a large debt swap, in which the newly created federal government assumed the debts of individual states. By August 1791, federal bonds sold above par in Europe, and by 1795, all foreign debts had been paid off. Hamilton’s solution for America’s debt problem provided the country with both credibility and a confidence shock.

In addition to being the first and most distinguished Treasury Secretary, Hamilton was also a renowned journalist and lawyer. His most famous journalistic project was a collaboration to produce a series of 85 opinion pieces that called for the ratification of the Constitution. These essays are called The Federalist Papers and are among the most cited sources by the U.S. Supreme Court.

Hamilton’s work as a lawyer was well respected among his colleagues. Chief Justice of the U.S. Supreme Court John Marshall is known to have said that he was a mere schoolboy next to Hamilton. Indeed, in three of Marshall’s landmark decisions–Marbury v. Madison (1803), Fletcher v. Peck (1810), and McCulloch v. Maryland (1819)–he turned to Hamilton’s legal writings for guidance.

Thirty members of the Brookings Institution are seeing Hamilton this fall because they feel that Alexander Hamilton “best symbolized a seriousness of purpose around economic policy, fiscal responsibility, and support of the central government.” I hope that Mr. Lew’s recent trip to Hamilton has imbued him with a greater respect for Alexander Hamilton. He was in need of it. 

“I’m going to make sure that some employers go to jail for wage theft and all the other abuses that they engage in,” said presidential hopeful Hillary Clinton at a Labor Day rally in Illinois.

Wage theft” is an elastic sort of epithet. These days, it gets used to describe employer practices ranging from the offering of unpaid internships – a practice, it should be noted, that Hillary Clinton has engaged in herself – to not paying employees overtime when they send or read work-related email after hours.  Last year, union advocates in the press widely accused an Amazon.com contractor of “wage theft” in a dispute over whether employees should be on the clock while undergoing physical security checks. The Supreme Court ruled 9-0 that the practice was not a labor law violation in the first place, let alone “theft.” 

Of course there are cases where employers (often of the fly-by-night sort) defraud workers of promised pay. The law has long, and rightly, treated this class of cases with severity. The effect of the suddenly prevalent “wage theft” phrasing — indeed, I would go so far as to say its purpose — is to blur the lines between those cases and the countless disputes that arise under the Fair Labor Standards Act and similar laws over employee classification, portal-to-portal compensation, tip pooling, donning and doffing time, and so forth. Because the FLSA and similar laws are vague and hard to interpret, and have repeatedly been clarified only after-the-fact by court interpretations (when courts manage to agree with each other), anticipating what is lawful is often a matter of guesswork. In typical situations, established employers delivered as promised on the compensation deal that workers had come to expect, and workers similarly stayed on the job with eyes wide open, but it is argued after the fact that the intricacies of the New Deal-era FLSA required the offering of a different deal.

This is bait and switch terminology and there is no reason to give it a pass. Reporters should ask Hillary Clinton which cases, specifically, she has in mind when she talks of jailing employers, and whether that includes cases in which managers were obliged to guess what the law required of them (adapted from Overlawyered.)


If everyone agrees that forcing public employees to subsidize a labor union’s political or ideological speech impinges their First Amendment rights—and the Supreme Court has been unanimous on that point for decades—then what possible justification is there for requiring workers who’ve declined to join the union to go through the arduous process of opting out from making such payments year after year?

There is none, argues Cato’s amicus brief in Friedrichs v. California Teachers Association. As the Court recounted in Knox v. SEIU (2012), “acceptance of the opt-out approach appears to have come about more as a historical accident than through the careful application of First Amendment principles.” But as a matter of principle, opt-out plainly violates the cardinal rule that procedures involving compelled speech and association must be “carefully tailored to minimize the infringement” of First Amendment rights.

Under the opt-out approach, dissenting workers bear the risk that, if they are unsuccessful in following the opt-out procedure reluctantly administered by the union, their money will be used to further political and ideological ends with which they do not agree. The labor union, whose constitutional rights are not at stake, bears no risk at all—by default, it gets the money.

For example, a teacher who learns partway through the year that her payments to the union are being used to fund speech that she finds abhorrent—and the union here lobbies on controversial issues like abortion, gun control, and immigration reform—is still compelled by the government to continue funding that speech until the next opt-out period.

Unions, of course, favor opt-out precisely because it allows them to take advantage of inertia on the part of would-be dissenters who fail to object affirmatively. But that is no basis to countenance the wholesale violation of public employees’ First Amendment rights. Courts “do not presume acquiescence in the loss of fundamental rights,” and application of that principle here will spell the end of abusive opt-out regimes.

The Supreme Court will hear argument in Friedrichs in the middle of the upcoming term, likely in January. For more on the case and our argument, see this SCOTUSblog essay.

This week, Hillary Clinton unveiled her proposals to reform campaign finance laws. Unsurprisingly, Clinton’s proposals would make it much more difficult to criticize, you guessed it, Hillary Clinton.

Accompanying the announcement is her new campaign video, which acknowledges the elephant in the room: Citizens United was a case about censoring a movie that criticized Hillary Clinton. But rather than this biasing her opinion on the case, the video argues that her connection to the case gives her insight because “she knows firsthand what it’s done to our democracy.”

Clinton has pledged to use overturning Citizens United as a litmus test for Supreme Court justices, and she also supports a constitutional amendment to overturn the decision.

This wouldn’t be the first time a politician pushed to censor criticism as a public service. In 1798, President John Adams signed the Alien and Sedition Acts, which made it a crime to “write, print, utter, or publish” anything that might bring “the government of the United States, or either house of the Congress of the United States, or the President of the United States into disrepute or to excite against them…the hatred of the good people of the United States.” Maybe we should just resuscitate that law and add the name “Hillary Clinton.”

According to her video, Citizens United was “a conservative organization that wanted to bring down Hillary Clinton’s candidacy because they didn’t like who she is, they don’t like what she stands for”–in other words, the quintessence of political speech protected by the First Amendment. Yet, because Hillary: The Movie was funded by a corporation–a nonprofit corporation founded to forward conservative causes–the movie and its accompanying advertisements ran afoul of the Bipartisan Campaign Reform Act. In short, the government was explicitly censoring political speech.    

In Clinton’s words, according to the Associated Press: “I want to tell you, Citizens United was about me. Think how that makes me feel. A lot of people don’t know that, but the backstory is eye-opening.”

Eye-opening, indeed. A small nonprofit that sought to make movies criticizing politicians runs headlong into a law that was partially intended to silence speech critical of politicians and candidates. As Senator John Edwards (D-NC) said during the floor debates over the Bipartisan Campaign Reform Act: “[people] turn on their televisions in the last 2 months before an election and see mostly hateful, negative, personal attack ads posing as issue ads… . Those are the ads we are trying to stop.”

Senator Jim Jeffords (I-VT) complained that he “had to face seeing ads on television which totally distort the facts and say terrible things. You watch a 20-percent lead keep going down[.]”

Senator John McCain (R-AZ) thought that the ads “are negative to the degree where all of our approval ratings sink to an all time low,” and that the ads “simply drive up an individual candidate’s negative polling numbers.” Senator Dick Durbin (D-IL) grumbled that the ads “[do] not help our image.”

These quotes demonstrate that censoring critical and “negative” political speech is often a proximate goal of campaign finance “reformers.” They also show that giving elected representatives the power to censor campaign speech will unleash self-serving and grotesque motivations to protect “20-percent lead[s].”

When it comes to letting representatives alter the process by which they get elected, we should heed the words of Nobel laureate James Buchanan: “Don’t let the fox guard the chicken coup.”

In July, Georgetown law professor Michael Seidman had parallel op-eds in the Washington Times regarding religious objections to providing services to same-sex weddings. This wasn’t a point-counterpoint – neither of us saw the other’s writing before publication – but the Federalist Society invited us to respond to each other on its new blog. Seidman declined, but here’s my response. 

Professor Seidman fundamentally misunderstands the paradigm here. When people object to Obamacare Robertscare mandates or to facilitating same-sex weddings, they aren’t objecting to society’s basic laws or impeding government. Instead, they’re demonstrating the inherent social clashes that the government itself creates when it expands beyond legitimate bounds.

In other words, Seidman is correct to note that society couldn’t function if people decided they didn’t have to obey criminal laws—whether against murder or illegal left turns—but it can function very well indeed without forcing people to buy pay a “tax” for not buying health insurance. Seidman is likewise absolutely right that the government couldn’t fund itself if people could withhold tax dollars to the extent they object to federal programs, but nobody is hurt if a gay couple has a choice of 99 instead of 100 wedding photographers.

Yet Seidman sees no difference between regulations that ensure public safety and those that ensure politically correct attitudes, between generally applicable laws and those that redistribute income. It seems that in Seidman’s world, people have no rights or liberties other than those which the government deigns grant them.

From that worldview, a statist noblesse oblige could deign allow small deviations to placate eccentric superstitions, indulgences purchased for a token dhimmi tax. What’s a little freedom of conscience between friends?

Too many Americans have become so accustomed to government authority that resisting state action looks anomalous. The right to freely exercise religion—not just to worship—is thus an exception to the general rule of government power.

The cultural flashpoint surrounding wedding vendors’ pleas for toleration is evidence of a more insidious process whereby the government foments social conflict as it expands its control into areas of life that we used to consider public yet not governmental. These conflicts are exceptionally fierce because, as Bloomberg View columnist Megan McArdle put it, “the long compromise worked out between the state and religious groups—do what you want within very broad limits, but don’t expect the state to promote it—is breaking down in the face of a shift in the way we view rights and the role of government in public life.”

Indeed, it’s government’s relationship to public life that’s changing—in the places that are beyond the intimacies of the home but still far removed from the state, like churches, charities, social clubs, small businesses, and even “public” corporations that are nevertheless part of the private sector. Under the influence of the Obama administration, the Left is weaving government through these private institutions, using them to shape American life according to its vision.

Again, the key to this far-reaching agenda is the conceit that the government grants fundamental rights. In the Hobby Lobby case, the government and dissenting justices essentially argued that the rights that Hobby Lobby’s owners asserted weren’t inalienable or natural ones, but privileges bestowed by the grace of government.

Through an ever-growing list of mandates, rules, and “rights,” the government is regulating away the “little platoons” of our civil society. That civil society, so important to America’s character, is being smothered by the ever-growing administrative state that, in the name of fairness and equality, takes away rights in order to standardize life from cradle to grave.

No, Professor Seidman, what we have here isn’t merely “strong and sincere conscientious scruples against obeying generally applicable and democratically enacted laws.” And the solution isn’t “compromise” but vigilance to ensure that government doesn’t needlessly violate our most basic freedoms.

[cross-posted at the Federalist Society blog]

“As health concerns for former President Carter mount,” Caleb Brown noted recently in this space, “it’s nice to be able to look back on his time in the White House and see something remarkably positive.” Indeed, our 39th president doesn’t remotely merit the bad rap he gets from conservatives and libertarians. As I wrote a few years back, “at its best, the Carter legacy was one of workaday reforms that made significant improvements in American life: cheaper travel and cheaper goods for the middle class.” For loosening controls on oiltruckingrailroads, and airlines, he should, Daniel Bier suggests, be thought of as “the Great Deregulator.” It’s in no small part thanks to him that conservatives can cry in their microbrews over the sorry state of the 2016 Republican field.  

So the man from Plains has a lot to be proud of. In the coming months, I hope he’ll have the consolation of seeing the record corrected and his historical reputation start to rise. 

Judging by his recent press conference announcing his illness, however, Carter shares a widely held misconception about where his presidency went wrong. Asked about his regrets, he answered: “I wish I’d sent one more helicopter to get the hostages and we would have rescued them and I would have been re-elected.” Carter was referring to “Operation Eagle Claw,” the aborted Iranian hostage rescue attempt in April 1980. If you’re old enough, you probably remember: the operation never got past the initial “Desert One” rendezvous point, due to the mechanical failure of three helicopters, and eight US soldiers were killed during departure when a helicopter collided with a transport plane. 

The botched rescue attempt definitely contributed to Carter’s defeat. But the mission failed during the “easy” part; when you look at what was supposed to come next, it’s hard not to think the whole operation would have been the Bay of Pigs meets Black Hawk Down.

Writing in the Air & Space Power Journal in 2006, war gaming professor Charles Tustin Kamps observed that “the things which did cause the mission to abort were probably merciful compared to the greater catastrophe which might have taken place if the scenario had progressed further than the Desert One rendezvous.” “In the realm of military planning there are plans that might work and plans that won’t work,” Kamps writes, “In the cold light of history it is evident that the plan for Eagle Claw was in the second category.” It would have required “the proverbial seven simultaneous miracles” to succeed. 

Here’s what was supposed to happen, per the Eagle Claw factsheet at the Air Force Historical Support Division website: 

[Eagle Claw] called for three USAF MC-130s to carry a 118-man assault force from Masirah Island near Oman in the Persian Gulf to a remote spot 200 miles southeast of Tehran, code-named Desert One. Accompanying the MC-130s were three USAF EC-130s which served as fuel transports. The MC-130s planned to rendezvous with eight RH-53D helicopters from the aircraft carrier USS Nimitz. After refueling and loading the assault team, the helicopters would fly to a location 65 miles from Tehran, where the assault team would go into hiding. The next night, the team, dependent upon trusted agents, drivers, and translators [provided by the CIA], would be picked up and driven the rest of the way to the embassy compound.

Meanwhile, a separate 13-man team would peel off to attack the Foreign Ministry building and rescue three hostages being held there, as the main Delta group hit the embassy.  

After storming the embassy, the team and the freed hostages would rally at either the embassy compound or a nearby soccer stadium to be picked up by the helicopter force. The helicopters would then transport them to Manzariyeh, 35 miles to the south, by that time secured by a team of U.S. Army
Rangers. Once at Manzariyeh USAF C-141 transports would fly the assault team and hostages out of Iran while the Rangers destroyed the remaining equipment (including the helicopters) and prepared for their own aerial departure. An extremely complex operation, Eagle Claw depended on everything going according to plan. Any deviation could cause the entire operation to unravel with possibly tragic consequences. 

Just in case things didn’t go exactly according to plan, the Delta guys were issued this handy “Farsi Survival Guide” (one page of which is pictured below) to help them bargain and cajole their way out of the country without blowing their cover. For example, they could try something like: “You Iranians and Moslems are famous for hospitality. For the sake of God, I need your help.” 

In real life, things started going wrong almost instantly: “Soon after the first MC-130 arrived [at Desert One], … a passenger bus approached on a highway bisecting the landing zone. The advance party was forced to stop the vehicle and detain its 45 passengers. Soon, a fuel truck came down the highway. When it failed to stop, the Americans fired a light anti-tank weapon which set the tanker on fire and lit the surrounding area.” 

In a riveting 2006 Atlantic article, “The Desert One Debacle,” Black Hawk Down author Mark Bowden described the resulting chaos: “Suddenly the night desert flashed as bright as daylight and shook with an explosion. In the near distance, a giant ball of flame rose high into the darkness. One of the Rangers had fired an anti-tank weapon at the fleeing truck, which turned out to have been loaded with fuel. It burned like a miniature sun. So much for slipping quietly into Iran.” 

Eight copters left the Nimitz; two had to turn back on route due to mechanical problems. Of the remaining six that made it through the vicious sandstorms (or “haboobs”) on the way to Desert One, another arrived with irreparable hydraulic problems. The plan called for a minimum of six helicopters; down to five, on-scene commander Col. Charles Beckwith had little choice but to cancel the mission. As the force began to evacuate, “tragedy struck. One of the helicopters’ rotor blades inadvertently collided with a fuel-laden EC-130. Both aircraft exploded, killing five airmen on the EC-130 and three marines on the RH-53.”

Had Beckwith not hit “abort,” however, it’s easy to imagine that most if not all of the assault force would have been captured or killed and none of the hostages would have made it. Bowden quotes a Delta Force officer who summed it up well: “The only difference between this and the Alamo is that Davy Crockett didn’t have to fight his way in.”

This, to paraphrase Argo, was the worst bad idea we had.

Wait, scratch that: actually, the worst idea was the followup plan developed by the military after the Desert One debacle. According to Carter’s national security adviser Zbigniew Brzezinski: “the second plan involved going into the airport at Tehran, taking the airport, shooting up anything in the way, bombing anything that starts interfering, storming the embassy, taking out anybody who’s alive after that process and then going back and taking off.” Except the hostages had been moved out of the embassy after the first failed attempt, and the commandos would have had to try to find them at remote locations. Everybody was supposed to reconvene at the Tehran soccer stadium where a C-130, jerry-rigged with rockets so it could take off and land like a V-22 Osprey, would whisk them to safety. You can watch the modified C-130 crash and burn in a test video here (luckily no one was hurt). 

The code name for this scheme? “Honey Badger.” Yes, the second rescue plan took its moniker from the “tenacious small carnivore” identified by the Guinness Book of World Records as “the most fearless animal in the world,” and later the subject of that inescapable 2011 YouTube video—to wit: 

“The honey badger don’t care! It’s getting stung like a thousand times. It doesn’t give a [expletive deleted]. It’s just hungry. It doesn’t care about being stung by bees. Nothing can stop the honey badger when it’s hungry. What a crazy [expletive deleted]!” 

(Trigger warning: expletives not deleted in viral video link.)

As Michael Crowley noted in a Time article reporting on the scheme, Honey Badger was likely “a last-resort contingency in case Iran began executing the hostages without provocation”–a desperate measure if all else failed. What’s really astounding is that the original plan, Eagle Claw, got the go-ahead in far less desperate circumstances.

Relentless public pressure to “do something!” often leads presidents to do something stupid. The hostage rescue mission was not Jimmy Carter’s finest hour. But it could have been much worse.

Earlier today, New York Governor Andrew Cuomo proposed a $15 per hour minimum wage for his state; Vice-President Joe Biden joined the press conference.

Cato and other scholars have long argued against any minimum wage; see here.  I will not re-hash those arguments today.

Instead, let’s ask the proponents of a minimum wage why, if a $15 per hour minimum is good, why isn’t a $150 per hour minimum better? 

The answer will presumably be, “Well, $150 per hour would kills job.”  


So why is not the same true of $15 per hour, just to a milder degree? How can proponents seriously claim that minimum wages do not affect employment? Existing evidence does show small effects from most minimum wage hikes; but that is because those hikes have been modest. Were they ever large (as with Cuomo’s proposal), substantial disemployment and other distortions are inevitable.  


Ocean acidification is the name given to describe the process by which, in response to rising carbon dioxide (CO2) emissions, more and more CO2 is taken out of the atmosphere and dissolved into the surface waters of the world’s oceans, thus lowering their pH values. Such reductions are hypothesized by many scientists to harm marine life. Citing the review paper of Briffa et al. (2012), for example, Jutfelt and Hedgärde (2015) state that “a number of reports in recent years have suggested that the behavior of coral reef fish, including their activity level, boldness, behavioral asymmetry (lateralization), and responses to olfactory and auditory cues, may be affected by ocean acidification.” Such reports have promulgated widespread concern that ocean acidification may well become a major threat to marine fishes in the not-too-distant-future; and in light of this concern, the two Swedish scientists decided to conduct a study of their own to learn more about this important topic.

The subject of Jutfelt and Hedgärde’s analysis was Atlantic cod (Gadus morhua), which they describe as an “ecologically and economically important species that has a history of being exposed to overfishing (Rose, 2004) and cod populations may therefore be sensitive to the effects of additional stressors such as ocean acidification.” For their analysis, the two researchers reared juvenile Atlantic cod for 30 days in control water (~500 μatm) or water with elevated CO2 levels (~1,000 μatm), during which time the juveniles were subjected to three separate behavioral experiments: (1) swimming activity, measured by the number of lines crossed per minute (12-19 days after exposure), (2) emergence from shelter, assessed by how long it took the fish to exit a shelter after a disturbance (26 days post exposure), and (3) lateralization, measuring turning side preference and the strength of behavioral symmetry (29-30 days post exposure). The purpose of the experiments was to determine whether or not these specific behaviors were affected by exposure to elevated CO2, as they “were previously reported to be affected by CO2 exposure in tropical reef fish.”

When all was said and done, however, Jutfelt and Hedgärde report they found no effect of CO2 treatment on any of the behaviors tested, writing that “behavioral effects of CO2 are not universal in teleosts” and that “the behavior of Atlantic cod could be resilient to the impacts of near-future levels of water CO2.” Ruminating on why this may be the case, the authors note that Atlantic cod have been observed to forage in deep waters with low pH, and, therefore, may be “physiologically adapted to be tolerant to high environmental CO2 levels.”

Whatever the reason, one thing is clear. As stated by the two researchers in the final sentence of their paper, “the results obtained in this study complicate the prediction of future effects of ocean acidification on fish, suggesting that behavioral effects could be negligible in some species and that we might not be able to make good predictions until more species from representative geographical and phylogenetic groups are tested and published.” Ocean acidification alarmists—take note!


Briffa, M., de la Haye, K. and Munday, P.L. 2012. High CO2 and marine animal behaviour: potential mechanisms and ecological consequences. Marine Pollution Bulletin 64: 1519-1528.

Jutfelt, F. and Hedgärde, M. 2015. Juvenile Atlantic cod behavior appears robust to near-future CO2 levels. Frontiers in Zoology 12:11, DOI 10.1186/s12983-015-0104-2.

Rose, G.A. 2004. Reconciling overfishing and climate change with stock dynamics of Atlantic cod (Gadus morhua) over 500 years. Canadian Journal of Fisheries and Aquatic Sciences 61: 1553-1557.


As delegations finally start tackling the trickiest issues left in the Trans-Pacific Partnership negotiations, we’re getting to see the ugly consequences of trade diversion, which happens when governments liberalize trade from some countries but not all of them.  I wrote last month about Canada and Mexico’s opposition to liberal rules of origin for automobiles in the TPP because it would reduce the advantages they enjoy under NAFTA.  Now a group representing sugar growers in countries outside the TPP is protesting a proposal that would give Australia more access to the U.S. sugar market.

The federal government helps U.S. sugar growers through a complex scheme of subsidies, restrictions, and import quotas that keep the price of sugar high in the United States.  Rather than reform this baldly protectionist system, a move that would benefit almost everyone, the United States is most likely just going to give Australia a larger share of the quota.  The hope is that such an offer will be adequate to satisfy Australia’s demands in the TPP negotiations without upsetting the politically powerful U.S. sugar industry.

But sugar growers from other countries are up in arms over the proposal.  The International Sugar Trade Coalition has written a letter to the U.S. Trade Representative claiming that the TPP proposal would violate existing U.S. and international law.  But why do they care?  The ISTC represents the sugar industries of 17 small countries who support the U.S. sugar program because the import quota guarantees them access to the U.S. market.  You see, the sugar program is supposed to protect U.S. sugar growers, but it also protects inefficient foreign producers who happen to have been granted a share of the quota. 

Fiddling with the quota numbers through the TPP won’t give us freer trade; it will merely shuffle the winners and losers of the current managed trade scheme.  Australia will win because it is at the table and these other countries will lose because they are not.  One thing that’s clear is that none of thise is going to benefit U.S. consumers.

Three weeks ago I wrote in the Guardian about Donald Trump’s years-long effort to use eminent domain to take Vera Coking’s Atlantic City house, along with two nearby small businesses, in order to build a limousine parking lot for his Trump Plaza hotel. Coking’s house may not have been paradise, but as Joni Mitchell would say, Trump wanted to pave it and put up a parking lot.

Today the Washington Post splashes the story of the billionaire and the widow across the front of its Style section. It’s a story that deserves further attention.

As I wrote:

For more than 30 years Vera Coking lived in a three-story house just off the Boardwalk in Atlantic City. Donald Trump built his 22-story Trump Plaza next door. In the mid-1990s Trump wanted to build a limousine parking lot for the hotel, so he bought several nearby properties. But three owners, including the by then elderly and widowed Ms Coking, refused to sell.

As his daughter Ivanka said in introducing him at his campaign announcement, Donald Trump doesn’t take no for an answer.

Trump turned to a government agency – the Casino Reinvestment Development Authority (CRDA) – to take Coking’s property. CRDA offered her $250,000 for the property – one-fourth of what another hotel builder had offered her a decade earlier. When she turned that down, the agency went into court to claim her property under eminent domain so that Trump could pave it and put up a parking lot.

Trump consistently defended his use of eminent domain. He told John Stossel, “Everybody coming into Atlantic City sees this terrible house instead of staring at beautiful fountains and beautiful other things that would be good.” Later, after the Supreme Court upheld the use of eminent domain to take property from one owner for the benefit of another private owner, he told Neil Cavuto, 

“I happen to agree with it 100%. if you have a person living in an area that’s not even necessarily a good area, and … government wants to build a tremendous economic development, where a lot of people are going to be put to work and … create thousands upon thousands of jobs and beautification and lots of other things, I think it happens to be good.”

Manuel Roig-Franzia of the Post adds lots of colorful detail to the story. He notes how the Institute for Justice represented Coking in court – and won. “In the long melodrama that is Trump’s business career, the house in Atlantic City is the place where all the billionaire’s money and all the billionaire’s men couldn’t keep a 5-foot-3 widow from whupping him”–with the government on his side and IJ on hers.

Earlier this year, the Library Freedom Project launched an initiative to test the use of Tor exit relays in local libraries as a means of helping library patrons browse the internet annonymously. As the LFP noted

To begin this new project, we needed a pilot, and we had just the library in mind – Kilton Library in Lebanon, New Hampshire, one of two Lebanon Libraries. Chuck McAndrew is the IT librarian there, and he’s done amazing things to the computers on his network, like running them all on GNU/Linux distributions. Why is this significant? Most library environments run Microsoft Windows, and we know that Microsoft participated in the NSA’s PRISM surveillance program. By choosing GNU/Linux operating systems and installing some privacy-protecting browser extensions too, Chuck’s helping his staff and patrons opt-out of pervasive government and corporate surveillance. Pretty awesome.

At least it was awesome until the Department of Homeland Security got wind of the project.

As Julia Angwin of ProPublica reports today

In July, the Kilton Public Library in Lebanon, New Hampshire, was the first library in the country to become part of the anonymous Web surfing service Tor. The library allowed Tor users around the world to bounce their Internet traffic through the library, thus masking users’ locations.

Soon after state authorities received an email about it from an agent at the Department of Homeland Security.

“The Department of Homeland Security got in touch with our Police Department,” said Sean Fleming, the library director of the Lebanon Public Libraries.

After a meeting at which local police and city officials discussed how Tor could be exploited by criminals, the library pulled the plug on the project.

“Right now we’re on pause,” said Fleming. “We really weren’t anticipating that there would be any controversy at all.”

He said that the library board of trustees will vote on whether to turn the service back on at its meeting on Sept. 15.

Nearly everything in our society has been or will be exploited by criminals: cars, cellphones, hatchets, cleaning solutions, tape, boats, aircraft–the list is virtually endless. It’s part of living with and in a free society, and the feds don’t come knocking on 3M’s door every time a criminal uses their tape to facilitate a break-in or other criminal act. But federal agencies like DHS and the FBI are literally on an anti-encryption, anti-privacy crusade with respect to consumer electronics and software–especially high-quality, publicly audited and effective anonymization technology like Tor. The Kilton Library’s internet freedom project has just become the federal government’s latest victim in that misguided campaign.

To recap: DHS used the Lebanon, New Hampshire police department to lean on–if not outright intimidate–a local library into at least temporarily abandoning a tool that reinforces Fourth Amendment privacy protections–and in doing so treated all of the Kilton Library’s patrons as potential criminals first, and as citizens with rights a very distant second.

The Inspector General (IG) of the Department of Homeland Security (DHS) has released a report finding waste in the department’s vast warehousing of equipment and supplies. Here are a few examples of the problems found by the IG:

Customs and Border Protection (CBP) leases a 54,000 square foot warehouse in Northern Virginia to store mostly excess furniture leftover from projects in which CBP reduced office space. CBP also stockpiles reams of printer/copier paper at this location and will pay about $934,000 per year to lease this warehouse. Many of the items in the warehouse appeared to be obsolete or broken. The annual lease cost exceeds our estimated value of these items.

… CBP leases a 41,129-square-foot GSA warehouse also located in Northern Virginia to support its Data Center and store new computer equipment CBP distributes to its field offices. In addition, CBP stores old computer equipment. CBP will pay about $502,000 each year to lease this warehouse. The iTeam estimated that about half of the items stored in this warehouse were old computer systems and other obsolete technologies.

… CBP leases a 6,500-square-foot GSA warehouse in Northern California to store old computers, broken equipment, old office furniture, and some books. CBP will pay about $74,000 each year to lease this warehouse. The warehouse is mostly empty and CBP does not actively manage or conduct physical inventories of the stored items.

These examples exemplify points made in my study, Why the Federal Government Fails. Well-managed businesses would not be holding onto piles of obsolete and broken furniture and computers, and paying for expensive storage. They have a bottom line to worry about, and face constant pressure to reduce costs. By contrast, federal government managers have little or no incentive to reduce costs, and so they don’t.

The new report on DHS inventory mismanagement is a microcosm of the broader waste in the government’s vast holdings of real property. The federal government owns or leases more than 275,000 buildings, including offices, hospitals, and warehouses. There is huge excess in these holdings, which cost $22 billion a year to maintain. The government has long been a poor manager of it assets, and the GAO has had federal property holdings on its “high risk” list for years.

To the Obama administration’s credit, it is taking modest steps to reduce the waste in federal property management. But the more fundamental issue is that the government is a vastly bloated enterprise that does too much and has little incentive to do it efficiently.

Just when you thought that any further Obamacare lawsuits involved things like contraceptive mandates rather than anything at the law’s core, today a federal judge ruled that Speaker of the House John Boehner’s case against the HHS and Treasury secretaries can proceed. In a highly technical 43-page opinion, Judge Rosemary Collyer found that the House of Representatives has standing to sue these officials and their agencies for spending money on ACA implementation that Congress didn’t authorize.    That’s clearly the right call: only Congress can appropriate funds for federal programs and so Congress faces a unique institutional injury when the executive branch decides to take that particular prerogative upon itself.    Judge Collyer went on to deny standing on the additional claim that the executive amended the statute when it delayed and modified Obamacare’s employer mandate–but this is a much closer issue that will be hotly contested on appeal.    As Cato described in our King v Burwell brief, Obamacare implementation has been a seat-of-the-pants executive frolic from the get-go (and we didn’t even include the episode at the heart of the surviving claim here). It’s not surprising that a law written in haste behind closed doors and that was rammed through Congress via procedural shenanigans would have growing pains as it went online. In the normal course, that would mean technical amendments and orderly administrative rulemaking, but here, given the lack of popular support–and the loss of Congress by the enacting party as a direct result–that wasn’t possible. Accordingly, the Obama administration is (again) reaping what it has sown.    Keep an eye on U.S. House of Representatives v. Burwell – and note that one of the early sketches of this suit was presented at a Cato policy forum by my colleague Andrew Grossman. 

Over at Cato’s Police Misconduct web site, we have selected the worst case for the month of August.  This one goes to the City of Phoenix and its police agent, Kevin McGowan.

Here’s the background.  Patrick D’Labik, age 18, admits that he ran away from the police.  He ran because he said he had a bag of marijuana in his pocket and he didn’t want to go to jail.  Phoenix police officer Kevin McGowan caught up with D’Labik in a convenience store and the store had security cameras that captured the encounter.  Officer McGowan has his gun pointed at D’Labik, who was on his phone with his father, but who then quickly raises his hands in surrender.  As D’Labik is getting on the ground, Officer McGowan kicks him.  The force was so great that several teeth are knocked out.

In response to a complaint about excessive force, police commanders review the security camera footage and conclude the kick was unjustifiable.  McGowan loses his job with the police department.

But wait, Officer McGowan is now back on the force, patrolling the streets of Phoenix.  Turns out his termination was overturned by the Civil Service Board.

Here is security footage from the store:

POLICE BRUTALITY - Phoenix Cop Smashes Teen’s Teeth In & Now Begs For His Job Back

In my 2012 primer on fundamental tax reform, I highlighted the three biggest warts in the current system.

1. High tax rates that penalize productive behavior such as work and entrepreneurship.

2. Pervasive double taxation that undermines saving and investment.

3. Corrupt loopholes and cronyism that lure people into using resources inefficiently.

These problems all need to be addressed, along with additional problems with the internal revenue code, such as worldwide taxation and erosion of constitutional freedoms and civil liberties.

Based on these criteria, I’ve already reviewed the tax reform plan put forth by Marco Rubio. And I’ve analyzed the proposal introduced by Rand Paul.

Now let’s apply the same treatment to the “Reform and Growth Act of 2017” that former Florida Governor Jeb Bush has unveiled in today’s Wall Street Journal.

Bush identifies three main goals, starting with lower tax rates.

First, I want to lower taxes and make the tax code simple, fair and clear. …We will cut individual rates from seven brackets to three: 28%, 25% and 10%. At 28%, the highest tax bracket would return to where it was when President Ronald Reagan signed into law his monumental and successful 1986 tax reform.

This is a positive step, effectively wiping out the tax-rate increases imposed by Presidents George H.W. Bush, Bill Clinton, and Barack Obama.

Then Governor Bush takes aim at tax loopholes.

Second, I want to eliminate the convoluted, lobbyist-created loopholes in the code. For years, wealthy individuals have deducted a much greater share of their income than everyone else. We will retain the deductibility of charitable contributions but cap the deductions used by the wealthy and Washington special interests, enabling tax-rate cuts across the board for everyone.

This also is a step in the right direction, though it’s unclear what Bush is proposing - if anything - for other big tax loopholes such as the mortgage interest deduction, the healthcare exclusion, the state and local tax deduction, and the municipal bond exemption.

The final big piece of Jeb’s plan deals with America’s punitive treatment of business income.

Third, I believe that the tax code should no longer be an impediment to the nation’s competitiveness with China, Europe and the rest of the world. …To stop American companies from moving out of the country, I will cut the corporate tax rate from 35%—the highest in the industrial world—to 20%, which is five percentage points below China’s. We will end the practice of world-wide taxation on U.S. businesses, which fosters the insidious tactic called corporate “inversions.” …We will also allow businesses to fully and immediately deduct new capital investments—a critical step to increase worker productivity and wages.

All of these reforms are very good for growth.

A lower corporate tax rate, particularly combined with territorial taxation and “expensing” of investment expenditures, will make American companies far more competitive.

More important, these reforms will fix flaws in the tax code that reduce capital formation. And that will mean more investment and higher wages for American workers.

There are other positive features mentioned in the column that are worth celebrating. Governor Bush’s plan eliminates the death tax, which is an especially punitive form of double taxation.

His proposal also gets rid of the alternative minimum tax (AMT), which is a convoluted part of the tax code seemingly designed to grab more money from taxpayers in a very complicated fashion.

Now let’s move to a part of Bush’s plan that seems bad, but arguably is good. He’s proposing to get rid of interest deductibility for companies, which will increase double taxation (remember, investors who buy corporate bonds pay tax on the interest payments they receive from firms).

…we will eliminate most corporate tax deductions—which is where favor-seeking and lobbying are most common—and remove the deduction for borrowing costs. That deduction encourages business models dependent on heavy debt.

So why is this feature arguably good when one of the key goals of tax reform is eliminating double taxation?

For two reasons. First, we already have double taxation of dividends (i.e., equity-financed investment), so imposing double taxation on borrowing (i.e., debt-financed investment) creates a level playing field and addresses the bias for debt in the tax code.

To be sure, it would be best to level the playing field by having no double taxation of any kind, but presumably the Bush team also was paying attention to revenue constraints.

And this is the second reason why this portion of the plan arguably is good. The revenue implications of this change are non-trivial, so one could argue that it is helping to finance pro-growth changes such as a lower corporate tax rate and immediate expensing of business investment.

Let’s close by highlighting some unambiguously worrisome features of the Bush plan.

According to his column, an additional 15 million Americans no longer will have any income tax liability, largely because the plan almost doubles the standard deduction. It’s good for people not to have to pay tax, of course, but we already have a system where almost half of all households are exempt from the income tax. So the concern is that we have a growing share of the population that perceives government as a no-cost dispenser of goodies.

And one of those goodies is the Earned Income Tax Credit, which is a form of income redistribution operated through the tax code. And Bush is proposing to expand the EITC, though there aren’t any details about this part of his plan.

Presumably Bush is including these provisions to somewhat fend off the class-warfare attack that his plan provides big tax cuts for the “rich” while not doing enough for the rest of the population. Yet upper-income taxpayers already pay the lion’s share of the income tax.

Even the IRS has acknowledged that the top 3 percent pay more than half the burden!

So a fair tax cut, by definition, will benefit the rich since they’re the ones who are carrying the load.

In any event, the purpose of good tax policy is to generate faster growth by improving incentives for work, saving, investment, and entrepreneurship, and that’s where you get the big benefits for lower- and middle-income taxpayers.

Simply stated, the close you get to a Hong Kong-style flat tax, the closer you get to robust Hong Kong-type growth rates.

The bottom line is that Bush’s tax plan isn’t a touchdown. Like the Rubio plan and Paul plan, it’s not a Hall-Rabushka flat tax, which is the gold standard for tax reform. But it’s a big step in that direction. Bush takes the ball from the wrong side of the field and puts it on the right side of the field.

If implemented (and accompanied by the spending restraint needed to make the plan sustainable), Bush’s proposal would be a significant boost for the American economy and American taxpayers.

Despite bitter partisan controversies on foreign policy issues such as the Iran nuclear agreement and the normalization of relations with Cuba, there is one issue where liberals and conservatives share a common delusion.  That issue is policy toward Syria.  The Obama administration persists in wanting to oust Syrian President Bashar al-Assad and at the same time crush the ISIS insurgents.  Washington continues to flirt with establishing a no-fly zone in northern Syria to protect supposedly moderate rebels, and it is moving forward with its much- mocked scheme to train a moderate insurgent force that would oppose both Assad and ISIS.  The latter plan is hopelessly behind schedule and has thus far produced only a handful of graduates from the training program.

Conservatives are no more realistic than the Obama foreign policy team.  Presidential candidates and conservative pundits alike routinely talk of escalating the fight against ISIS, but then, in almost the same breath, stress the need to defeat Assad and his principal ally, Iran.  I had the “pleasure” of witnessing such illogic in two major broadcasts within the past week.  The first occurred in a September 5 segment on CNBC, in which Larry Kudlow, a prominent economist and possible candidate for the U.S. Senate, raged against the Obama administration’s alleged unwillingness to conduct a concerted campaign against the twin evils of ISIS and Iran.  On Labor Day, the Fox News program “The Five” featured a discussion in which nearly all of the participants adopted arguments that echoed Kudlow’s rant.

What is striking about all of these episodes—and many others like them—is that the advocates of decisive, simultaneous U.S. action against both ISIS and the Assad-Iran alliance are in denial that those two goals are hopelessly contradictory.  Like it or not, the principal forces arrayed against ISIS are Assad’s “coalition of religious minorities” in Syria together with Iran and its Shiite allies in Iraq. The Syrian Kurds have their own agenda, seeking to create a de facto independent Kurdish state in northeastern Syria akin to the self-governing Kurdish region next door in Iraq.  

Secular Syrians committed to a united, democratic Syria are few in number and badly factionalized to boot.  U.S. officials need to stop basing policy on the expectation that a mythical moderate Syrian insurgency will emerge. The reality is that there is no credible moderate alternative to Assad and ISIS.  If Washington moves to oppose one side in that bipolar struggle, it automatically strengthens the other.

Of course, the option always exists to drastically lower the U.S. profile in the Middle East and let the contending forces, which reflect a broad Sunni-Shiite regional struggle for power, fight it out.  But hawks of whatever ideological stripe are unwilling to adopt that strategy.  Therefore, their only option is to choose their poison.  Which outcome do they find less unpalatable: an ISIS victory and the triumph of Sunni extremism, or an Assad victory and the expansion of Iranian influence?  As much as they might wish to avoid that choice, the notion of a defeat of both Assad and ISIS is nothing more than wishful thinking.  And that is never a good basis for foreign policy.

Darren Chaker was under supervised release when he wrote on his personal blog that Ms. Leesa Fazek, an investigator with the Nevada Attorney General’s Office, was “forced out” of her previous post with the Las Vegas Police Department. That statement, according to the district court ultimately overseeing Chaker’s parole, was a violation of the requirement that he “not . . . disparage or defame others on the internet”—and so Chaker was returned to prison.

In so ruling, the court placed an unconstitutional prior restraint on Darren Chaker. But this country long ago moved past the notion of lèse majesté laws protecting public officials from harsh treatment by the press and the people. Indeed, the American people were so reviled by the enforcement of these statutes during the presidency of John Adams—particularly the Alien and Sedition Acts—that the people ousted the Federalist Party that proposed them. Since that time, Americans have given true meaning to their First Amendment rights against prior restraints on speech or on the terms by which public officials may be discussed.

Even prisoners and parolees receive constitutional protection; terms of supervised release must be narrowly drawn to avoid infringing substantive rights, like those of political expression. If the anti-disparagement provision of Chaker’s supervised release becomes widespread, it could easily stifle valuable speech by activists and others.

For instance, in his Letter from a Birmingham Jail, Dr. Martin Luther King Jr. remarked that “[w]e are sadly mistaken if we feel that the election of Albert Boutwell as mayor will bring the millennium to Birmingham. While Mr. Boutwell is a much more gentle person than Mr. Connor, they are both segregationists, dedicated to maintenance of the status quo.” Had King been subject to the same conditions as Chaker, he might have been resentenced for some of his most powerful writings. Worse still, he might never have published at all.

Imposing vague and broad restraints on speech leaves people like Darren Chaker guessing as to the limit of their rights and as to which leaders are “touchable” by the spoken and written word. The First Amendment needs appropriate “breathing space” to thrive, as the Supreme Court recognized in NAACP v. Button (1963). Much earlier, Sir William Blackstone noted, “The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press; but if he publishes what is improper, mischievous or illegal, he must take the consequence of his own temerity.”

Public officials are appropriate objects of criticism and the protection of their feelings is not the appropriate province of the courts. Chaker’s words don’t even rise to the standard that must be met to constitute defamation of a public figure. Chaker didn’t act with “actual malice” or reckless disregard for the truth when he published his blogpost, which is the mental requirement necessary to sustain such a charge. His speech was thus constitutionally protected political discourse.

Accordingly, Cato has joined the ACLU, the First Amendment Project, the Electronic Frontier Foundation, and the First Amendment Coalition on a brief supporting Darren Chaker before the U.S. Court of Appeals for the Ninth Circuit, which will hear the appeal this fall.