Policy Institutes

Democrats are plugging new energy into an old idea: a federal “Jobs Guarantee” program. Senator Cory Booker previously introduced legislation for a pilot in high unemployment communities. Now Senator Bernie Sanders will announce a plan guaranteeing a job or training paying $15 an hour and health-care benefits to every American worker “who wants or needs one,” in a host of public infrastructure, care giving and environmental upkeep projects.

The scheme, seemingly based on a recommendation from the Levy Economic Institute, comes with grandiose purported benefits. It would, we are told, eliminate involuntary unemployment, deliver a living wage, boost GDP, reduce the cost of recessions, raise labor market standards, reduce environmental degradation, reduce racial inequality, and much else besides. If it sounds too good to be true, that’s because it is. There are severe problems with this idea, which can be loosely grouped under three “c’s”: costs, crowd out and corruption.

Costs

The Levy Economic Institute calculates up to 16 million could take part in such a program today (including the unemployed, those working part time seeking full time work and individuals currently inactive who might move into the labor market). Given the federal government would have to pay $15 an hour for full time jobs, plus benefits equal to 20 percent of wages, total labor costs per worker would be $37,440 per year. That’s before the cost of the materials for the programs and administration of the program itself. Even assuming some opt for part-time positions, and ignoring the non-labor program costs, we are talking about a gross cost of up to around 2.4 percent of GDP, significantly higher than the existing Medicaid program (2 percent of GDP).

The net cost on these assumptions will be lower, of course. People who take jobs will require less in welfare payments and pay some back in taxes. Some might wisely consider it a risk for their employment fortunes to be tied to the whims of politicians and their willingness to fund this program, and so remain in the private sector. But even taking this into account, and assuming the policy generates the macroeconomic bounty that the Levy researchers expect, they still think the annual net cost will be between 0.8 and 2 percent of GDP, with the program employing up to 10 percent of the workforce. That would in itself be a huge new commitment to finance at a time when the long-term fiscal outlook is already dire, and the short-term deficit already expected to balloon to over 5 percent of GDP in the coming years.

Crowd-out

In reality, the fiscal costs are likely to be much, much higher, and the economic welfare losses even more significant, because in the labor market and broader economy, a public jobs guarantee program would significantly crowd out productive private sector activity. This type of policy will radically alter behavior of both workers and businesses, and so the supply and demand for labor.

The Census shows that, among those who worked in 2016, 70+ million Americans earned under $32,500 (the full-time job guarantee salary would be $31,200). Yes, not all of these would seek out positions on the jobs guarantee program. But a large proportion would, especially those employed in uncertain roles with low levels of job security.

In fact, some even paid more than $31,200 might consider leaving their jobs to pursue guaranteed roles if they perceive better working conditions or an easier worklife (asked under what conditions someone would be fired from such a role, the Levy Institute paper suggests that you would be sacked for failing to go to work, but that your performance would not be judged by “private sector ‘efficiency criteria’”, for example.) It’s not inconceivable then that over 25 percent of the labor force could find itself part of the scheme.

This crowd-out is likely to be particularly acute in low productivity regions, and (ironically) after economic downturns. A nationwide jobs guarantee program paying $15 an hour will be particularly attractive to workers in low wage regions, and by setting a de facto wage floor the program will prevent private investment in regions on the basis of cheap labor.

Though no doubt there would be some demand spillovers from well-paid jobs, the net consequence is highly likely to be weaker private sector job creation in poor regions, which has been the experience of countries such as Britain with a nationwide minimum wages and public sector national pay bargaining. Proponents of the scheme see “higher labor standards” as a good thing, but absent productivity improvements, policies which raise labor costs significantly will reduce the quantity of workers demanded.

There’s good reason to expect the policy will reduce the efficiency and productive potential of the economy too. Taxes will eventually need to be raised to cover the net cost of the program. In infrastructure and care giving provision, costs will rise – because nobody would now work in these directly substitutable sectors for less than the wage and conditions offered in the job guarantee program. This will waste resources, and there’s highly likely to be overinvestment in lots of relatively low value ventures and programs to ensure workers are employed, especially given the explicit aim is to provide employment rather than deliver projects at low cost.

Throwing resources at regions with higher levels of unemployment and after recessions too will work directly against market signals and deter the mobility of labor (in geographic and industrial terms) and capital to its most productive uses given prevailing market conditions. This is important: yes, employment is highly likely to have some positive externalities; but the real driver of better living standards over time are productivity improvements, discovered by market-based activity. 

Proponents of this policy seem to put an enormous weight on the idea that time out of the labor market has huge scarring consequences which could be ameliorated by any type of temporary employment. But the literature on this shows that temporary jobs do not provide the workers with skills to improve longer-term labor market outcomes.

Corruption and incentives

As if all these consequences were not bad enough, such a program will be ripe for corruption and political interference at the government, provider and individual level. Senator Sanders’ plan would be administered by the Department for Labor, with local and state governments submitting projects to regional offices for consideration. There’s a huge question mark on whether projects will be considered on economic grounds, when there might be an incentive for make-work schemes to aid particular politicians or indeed to put resources towards “public good” causes or NGOs more in line with the ethos of the governing party. For Democrats this might be for environmental issues. For Republicans it might be, say, for a wall on the southern border.

NGOs and local public bodies themselves will have incentives to apply for federal funds for projects that would otherwise have occurred anyway, and to maximize the number of applications. Pork barrel projects would proliferate. What is more, at the individual level, the guarantee coupled with the purported unwillingness to judge worker performance on a commercial basis will incentivize low levels of work effort on the margin.

Conclusion

The Jobs Guarantee then is an extremely large and costly endeavor, which would have major economic consequences and risk a large federal politicization of the labor market and public project delivery. 

The US does have serious labor market issues to contend with - not least depressed labor participation and a weak productivity outlook - but are things really so bad that they require such a risky and extensive policy response?

Well-paid jobs and low levels of real unemployment are outcomes desired by all. But attempting to achieve that through this program amounts to cracking a nut with a sledgehammer, undermining what matters far more for living standards: efficiency and productivity. 

This morning in Jesner v. Arab Bank, the Supreme Court split 5-4 along conventional ideological lines to confirm that it is up to Congress, not the judiciary, to decide whether and when American courts should entertain international human rights cases against foreign defendants. It thus continues the course of its 2013 Kiobel v. Royal Dutch Petroleum case, about which I wrote here at the time

Today the U.S. Supreme Court unanimously and decisively buried the misguided, decades-long hope of some lawyers and academics that they could turn the Alien Tort Statute (ATS) into a wide-ranging method of hauling overseas damage claims into American courts. All nine Justices agreed with the Second Circuit that the statute does not grant jurisdiction for our courts to hear a controversy over alleged assistance in human rights violations outside the U.S. against non-U.S. plaintiffs by a non-U.S. business. A majority of five justices reiterated and relied on our law’s strong traditional presumption against extraterritoriality, that is to say, presumption against applying the law to actions that take place in other countries. While parting from this reasoning, four concurring justices nonetheless endorsed a view of ATS as applicable extraterritorially only to very extreme misconduct comparable to piracy, and also as sharply limited by considerations of comity with foreign sovereigns.

It is a good day for a realistic and modest sense of what United States courts of justice can successfully do, namely: do justice within the United States.

But in Kiobel, as Kenneth Anderson noted in the Cato Supreme Court Review that year, the Court ducked the question it had originally agreed to decide: may foreign corporations be sued in U.S. courts under the ATS, or only individuals? The correct answer is that Congress, not the courts, should decide. Issues of foreign affairs are peculiarly the province of the political branches, which can weigh (and take responsibility for) the dangers of engendering friction with foreign sovereigns by extending liability (Jordan, an important U.S. ally, has for years been riled by the attempt to go after Arab Bank over handling transactions, including some in New York, that allegedly facilitated terrorist acts abroad.) 

The only time Congress chose affirmatively to create such a cause of action, in a 1991 statute providing torture victims a right to sue over abuse abroad, it placed significant limits on the right, among which was providing that only individuals could be sued. Parallel restrictions should be read into other, unenumerated causes of action under the ATS, said Justice Anthony Kennedy in his opinion for the majority today; that means that unless Congress says so, the statute would enable holding individual wrongdoers liable but not imputing their liability to an organization. Writing separately in partial or full concurrence, Justices Gorsuch, Alito, and Thomas would have gone further to make clear that courts should simply not get into the business of inventing causes of action in this area, especially given the ATS’s history as an early American enactment meant to reduce rather than exacerbate diplomatic tensions. 

Not too many years ago, whole sectors of American legal academia were besotted with notions of “universal jurisdiction” in which misbehavior taking place in Africa, Latin America, or Southeast Asia could be sued over in American courts – in practice, often, in certain West Coast federal courts that welcomed such suits. The Court’s retreat from that proposition has been steady and prudent. Despite the dissent by Justice Sonia Sotomayor, no one has immunized business miscreants against anything. The Court has simply made it clear that if the United States courts are to become a sort of human rights policeman to the world, it is Congress that will need to decide to fit them out for that task. 

 

 

Toronto Police Chief Mark Saunders said that there is no evidence that yesterday’s “van incident,” where Alek Minassian murdered 10 people and injured 15 others on a busy sidewalk with a van, was a terrorist attack.  To count as a terrorist attack, Minassian’s motivations must have been political, religious, or social in nature beyond simply a desire to terrorize or murder others.  Minassian’s motives are so far unclear with much speculation regarding his social awkwardness and possible anti-women opinions but, so far, little surrounding his political or religious opinions.  This could change as police and investigators uncover new facts.

Many in media and government, prompted by Minassian’s mass murder, are commenting on terrorism in Canada but with little context.  By using the methods employed in my recent terrorism risk analysis for the United States, I’ve found that terrorism is rare in Canada.  Assuming that investigators will eventually find that Minassian’s mass-murder is not terrorism, as they currently claim, then the annual chance of being murdered in a terrorist attack on Canadian soil over the last 25 years was about one in 60.4 million per year.  The annual chance of being injured in a terrorist attack on Canadian soil during that time was about one in 7.4 million per year.

Data and Methodology

This post examines 25 years of terrorism on Canadian soil from 1993 through April 23, 2018.  Fatalities and injuries in terrorist attacks are the most important measures of the cost of terrorism. The information sources are the Global Terrorism Database (GTD) at the University of Maryland, the RAND Corporation, and others.  I excluded three fatalities counted by the GTD as they were the terrorists themselves.  I further grouped the ideology of the deadly attackers into four broad ideologies: Islamists, Anti-Muslims, anti-government, and Unknown/Other. GTD descriptions of the attackers, news stories, and wikipedia were my guide in grouping the attacks by ideology. The grouping by ideology was easy as there were so few terrorist attacks in Canada from 1993 to the present.  The number of Canadian residents and non-terrorist murders in each year comes from Statistics Canada.

Terrorism Risk in Canada

Terrorists have murdered 14 people on Canadian soil from 1993 through April 23, 2018.  Islamists murdered 3 of the victims, an anti-government terrorist murdered 3, suspected terrorists of an unknown ideology murdered 2, and 6 were murdered by an anti-Muslim terrorist named Alexandre Bissonnette in a shooting at a Quebec mosque last year (Figure 1).  Of the 63 terrorist attacks in Canada during that time, according to a wide definition of the term “terrorist” in the GTD, only 7 resulted in a fatality.  In other words, 89 percent of terrorist attacks in Canada during the last 25 years killed nobody.

Figure 1

Murders in Canadian Terrorist Attacks by the Ideology of the Attacker, 1993-2018

 

Sources: Global Terrorism Database at the University of Maryland, RAND Corporation, ESRI, and author’s calculations.

Although most of the recorded terrorist attacks targetted small groups in Canada, like Muslims or the police, it is useful to get a sense of the relative danger by looking at the annual chance of being murdered by a terrorist inspired by each ideology.  The annual chance of being murdered by an Islamist in a terrorist attack was the same as that of being murdered by an anti-government terrorist: about one in 281.7 million per year.  The annual chance of being murdered by a terrorist with an unknown ideology was about one in 422.5 million per year.  The greatest risk, but also still tiny, was being murdered by Alexandre Bissonnette in his Mosque attack last year at one in 140.8 million per year over the 25 years. 

There were 114 injuries in terrorist attacks on Canadian soil from 1993 through April 23, 2018 (Table 1).  Terrorists with unknown or other ideologies caused almost 68 percent of those injuries.  Alexandre Bissonnette, the anti-Muslim terrorist, was personally responsible for 17 percent of all injuries in terrorist attacks during this time in Canada.  Islamist terrorists were responsible for about 11 percent of injuries while anti-abortion and anti-government terrorists were responsible for 4 and 2 percent of all injuries, respectively. 

Table 1

Injuries in Canadian Terrorist Attacks by the Ideology of the Attacker, 1993-2018

  Injuries Annual Chance of Being Injured Percent of All Injuries Unknown/Other

77

1 in 10,973,614

67.5%

Anti-Muslim

19

1 in 44,472,016

16.7%

Islamist

12

1 in 70,414,026

10.5%

Anti-abortion

4

1 in 211,242,077

3.5%

Anti-government

2

1 in 422,484,154

1.8%

Total

114

1 in 7,412,003

100%

Sources: Global Terrorism Database at the University of Maryland, RAND Corporation, ESRI, and author’s calculations.

Comparison to Murder

Fatalities and injuries in terrorist attacks are rare so a relevant comparison to non-terrorist murder puts the terrorism danger into perspective.  There were about 14,807 murders in Canada from 1993 through April 23, 2018.  Because the number of murders is not reported for 2016-2018, I assumed that the number of murders for each of those years was the same as the number in 2015.  The annual chance of being murdered outside of a terrorist attack was about one in 57,000 per year from 1993 through 2018 – about 1,058 times greater than the chance of being killed in a terrorist attack.      

Conclusion

There is a small chance of being murdered in a terrorist attack in Canada over the last 25 years.  By comparison, the annual chance of being murdered in a terrorist attack in the United States over that time was about 25 times greater than in Canada.  Similarly, the annual chance of being murdered in a terrorist attack in Canada also appears to be lower than in Europe.  The chance of being murdered in a non-terrorist murder in Canada was over 1000 times greater.  Alek Minassian’s horrific mass murder does not appear to be a terrorist attack based on the information available at this time, but if it does turn out to be terrorism then it would be the deadliest attack on Canadian soil since December 6, 1989, when Marc Lepine murdered 14 and injured 14 others in an attack inspired by his anti-feminism.  The murder or death of innocent people is tragic no matter the circumstances and the perpetrator should be punished to the fullest extent of the law.  Regardless, Canadians can at least take some comfort in the fact that the chance of being murdered in a terrorist attack in Canada is small in absolute terms, relative to the residents of other developed nations, and compared to the chance of being murdered in a non-terrorist homicide.     

 

 

 

 

In an April 21 editorial, the New York Times succumbs to the false narrative reverberating in the media echo chamber that blames the opioid overdose crisis on doctors overprescribing opioids to their patients in pain. Even worse, the Times perpetuates a significant component of that narrative: the myth that such overprescribing can essentially be traced to nothing more than a single letter to the editor by researchers at Boston University in the New England Journal of Medicine in 1980 touting the low addictive potential of opioids when prescribed in the medical setting. 

In fact, numerous studies before and after that now “infamous” letter continue to demonstrate the low addictive potential of medically prescribed opioids. For example, 2010 and 2012 Cochrane systematic analyses show chronic non-cancer pain patients on opioids have a roughly 1 percent addiction rate, and a January 2018 study by researchers at Harvard and Johns Hopkins of more than 568,000 “opioid naïve” patients over 8 years who were given opioids for acute postoperative pain showed a total “misuse” rate of 0.6 percent. In a 2016 New England Journal of Medicine article, Dr. Nora Volkow, the Director of the National Institute on Drug Abuse, stated, “Addiction occurs in only a small percentage of patients exposed to opioids—even those with preexisting vulnerabilities.” Furthermore, researchers at the University of North Carolina followed 2.2 million North Carolina residents prescribed opioids in 2015 and found an overdose rate of just 0.022 percent—and 61 percent of those overdoses involved multiple other drugs.

The Times then offers the same restrictive strategy—only more so— that is doomed to fail because it is based upon a false premise. The editors even suggest that opioids should be restricted to terminal cancer patients. Look at where this approach has gotten us thus far.

The prescription of opioids to patients peaked in 2010, with high-dose prescriptions down 41 percent since that time. A report last week from IQVIA showed opioid prescriptions dropped 10 percent in the last year, and high-dose prescriptions dropped 16 percent. The Drug Enforcement Administration ordered a 25 percent reduction in opioid production in 2017 and another 20 percent reduction this year. And since 2010, OxyContin has only been available in an abuse-deterrent form and many other opioids are likewise being reformulated. 

Yet the overdose rate continues to climb, and the majority of overdoses are due to fentanyl and heroin while the overdose rate from prescription opioids has stabilized or even slightly receded. The great majority of overdoses involve multiple drugs. In New York City in 2016, 75 percent of overdoses were from heroin or fentanyl and 97 percent of overdoses involved multiple drugs—46 percent of the time it was cocaine.

The opioid overdose crisis has always been primarily a manifestation of nonmedical users accessing drugs in a dangerous black market caused by drug prohibition. 

Policymakers must disabuse themselves of the false narrative they continue to embrace. It is the driving force behind a policy that has returned us to the “opioiphobia” of the Nixon era. It is making patients needlessly suffer and increasing the death rate by driving nonmedical users to more dangerous and deadly alternatives.

 

 

 

Investment adviser Ray Lucia conducted some seminars that ran afoul of the Securities and Exchange Commission. The SEC fined him $300,000 and, more importantly, barred him from working in the field after an SEC administrator determined that he had misled prospective clients in a quasi-judicial proceeding that the SEC investigated, prosecuted, and adjudicated without any appreciable oversight. He made a federal case out of the rather apparent separation-of-powers violation, which culminated in today’s Supreme Court argument in Lucia v. SEC. (For more background, see here.)

The central issue in the case is whether the SEC’s administrative law judges (ALJs) are “officers of the United States” such that they have to be appointed by and ultimately accountable to the president. That question in turn turns on how much discretion they have and whether their rulings change parties’ legal rights—or, given certain precedent, how you would write a rule that distinguishes officers from mere employees. 

After argument, Lucia remains hard to predict. A couple of justices (Stephen Breyer, Sonia Sotomayor) seemed dubious that the operations of a significant part of the government could be jeopardized based on what seemed to them to be legalistic technicalities. A couple of others (John Roberts, Neil Gorsuch) seemed to recognize the constitutional problem with the way administrative law judges are appointed but wonder how to write the opinion and apply the proper remedy. The rest seemed genuinely puzzled as to what to do with this case, and weren’t fully satisfied with any of the arguments presented.

None of the justices seemed particularly interested in the “removal power” aspect of the case, which the United States raised in its brief and Cato also covered in our brief. But all were troubled by the potential ramifications of ruling one way or another, because so many federal decisions could potentially be affected.

However this ends up, the case shows two things: (1) the importance of appointing judges and justices who take constitutional structure seriously, because that’s the ultimate guarantor of liberty, and (2) the incredible and unaccountable sprawl of the administrative state. 

A decision is expected by the end of June.

Minerva Dairy, based in Ohio, is America’s oldest family-owned cheese and butter dairy. It has been producing artisanal, slow-churned butter in small batches since 1935. They have gotten along by selling via their website and regional distributers in several states. This model has worked fine everywhere except Wisconsin, which requires butter manufacturers to jump through a series of cumbersome and expensive hoops to sell butter inside the state.

Of course, Wisconsin is America’s Dairyland, with many large dairy producers who naturally want to limit their competition. At the behest of these large producers, the state requires every batch of butter sold in the state to be “graded” by a specifically state-licensed grader—all of whom live in Wisconsin, except for a handful in neighboring Illinois—who must taste-test every single batch. Because Minerva’s butter is produced in multiple small batches over the course of each day, the law would effectively require the dairy to keep a licensed tester on-site at all times, which is cost-prohibitive. The state admits that the grading scheme has nothing to do with public health or nutrition, but claims that its grades—based largely on taste—inform consumers.

The fact that Wisconsin is trying to shape the taste of butter isn’t even the most absurd part of this case. The criteria used to grade the butter are a ludicrous mad-lib of meaningless jargon not even the state’s experts understand. The law purports to identify such flavor characteristics as “flat,” “ragged-boring,” and “utensil.” (All commonplace terms spoken by consumers in dairy aisles across the nation, certainly.) This terminology hearkens to a freshman—not even sophomore—term paper on the semiotics of postmodern agrarian literature. To claim that a grade calculated with reference to meaningless nonsense serves the purpose of informing anyone illustrates the danger inherent in judges’ dutifully deferring to government rationales for silly laws that burden people who are just trying to make an honest living.

Our friends at the Pacific Legal Foundation represent Minerva in a lawsuit that challenges the butter-grading law on grounds that it burdens interstate commerce in violation of the Commerce Clause, and also hurts small dairies’ Fourteenth Amendment rights to due process and equal protection of the laws. Minerva lost at the district court when the judge applied a toothless “rational basis” test to the law in question, giving little weight to the serious concerns described above. Must the judiciary rubber-stamp every legislative folly?

Because laws that abrogate constitutional rights warrant meaningful judicial oversight, Cato filed an amicus brief in Minerva Dairy v. Brancel to the U.S. Court of Appeals for the Seventh Circuit. Wisconsin’s law directly burdens the right to participate in the state’s butter market, and thus their economic liberty, for no sane or rational reason. There are simply no benefits to consumers that come from forcing producers like Minerva to pay considerable sums to have an irrational process deposit a random letter on product packaging. It curdles the mind to argue otherwise.

Over the weekend, USA Today reported that state and local law enforcement have acquired far less military equipment this year than they had at this point last year. This decline came in spite of President Trump’s executive order last August that removed some administrative hurdles to getting some of that equipment that had been implemented by the Obama Administration. The story contains a number of plausible explanations for the decline, including decreased demand from local departments and certain items not being available. There may be several factors at play in what appears to be a dramatic decrease in acquisition, but whatever the underlying reasons, the reduction is the latest evidence that much of the pro-police rhetoric and actions of the Trump Administration are less about improving police efficacy than they are about promoting the administration’s hollow posturing.

Recall that local police aren’t always jazzed about aggressive enforcement of federal immigration policy. Police who depend on the trust of the community to solve crimes and intervene in personal crises have been vocal about Trump’s impact on local crime enforcement. There are troubling signs that domestic violence and sexual assault are being underreported in Latino communities because of the distrust the administration is sowing between those communities and law enforcement. Over-the-top actions, such as raiding courthouses and seizing victims seeking protection and justice, erode public safety by enabling abusers and rapists to prey on their victims without fear of arrest or criminal charge. The cruel irony is that so much of this damage is done under the guise of restoring “law and order.”

Time will tell whether this decrease in military gear acquisition represents a genuine shift in local police priorities or is simply a lull that may end at the first sign of potential unrest in American cities. But some critics may take comfort that making it easier for police departments to attain new weapons of war didn’t automatically lead them to do it. Hopefully, the growing evidence that police militarization is detrimental to public safety and harmful to community relations is starting to sink in with local police, even if Washington isn’t listening. 

Cato published my recent Immigration Research and Policy Brief that relied on Texas state criminal data to compare the conviction rates of native-born Americans, legal immigrants, and illegal immigrants. That Texas state data was of such high quality that I was even able to compare conviction rates by the type of crime. The result was that in 2015 the criminal conviction and arrest rates for illegal immigrants were below that of native-born Americans for virtually all crimes including homicide, sexual assault, and larceny. This is just further evidence that illegal immigrants are less crime-prone than native-born Americans. I had to limit my Brief to focus on convictions only in 2015, although I also had the Texas conviction data for 2016, because there were no estimates of the illegal immigrant population statewide for the latter year. 

Since Cato published my brief in February, the estimable Center for Migration Studies published an update of the estimated number of illegal immigrants in Texas for 2016. The following graphs and numbers are the conviction rates for native-born Americans, legal immigrants, and illegal immigrants in the state of Texas in 2016. The conviction rate is the number of convictions per group (native, legal immigrants, and illegal immigrants) divided by the number of Texas residents in each group multiplied by 100,000. The final multiplication step produces the conviction rate per 100,000 residents in each subpopulation, which is how criminologists and the governments portray incarceration, crime, and conviction rates. This is the best way to portray relative crime rates as it controls the different size of the subpopulations.

The criminal conviction rate for native-born Americans in Texas was 2,116 per 100,000 natives in 2016 (Figure 1). The native-born criminal conviction rate was thus 2.4 times as high as the criminal conviction rate for illegal immigrants in that year and 7.2 times as high as that of legal immigrants. 

Figure 1

Criminal Conviction Rates by Immigration Status in Texas, 2016

Sources: Author’s analysis of Texas Department of Public Safety data, the American Community Survey, and the Center for Migration Studies.

The homicide conviction rate for native-born American in Texas in 2016 was 4.1 per 100,000 natives in 2016, about 2.4 times as great as the 1.8 per 100,000 conviction rate for illegal immigrants and 5.7 times as great as the 0.7 per 100,000 conviction rate for legal immigrants (Figure 2). The homicide conviction rate in 2016 in Texas is quite a bit different from the 2015 findings where it was only 25 percent higher for natives than for illegal immigrants. 

Figure 2

Homicide Conviction Rates by Immigration Status in Texas, 2016

Sources: Author’s analysis of Texas Department of Public Safety data, the American Community Survey, and the Center for Migration Studies.

The sexual assault conviction rates for illegal immigrants is also below that of natives but only by 16 percent while the sexual assault conviction rate for legal immigrants is 87 percent below that of natives (Figure 3). The larceny conviction rate for native-born Americans is 6.1 times as high as that for illegal immigrants and 12.5 times as high as that for legal immigrants (Figure 4). 

Figure 3

Sexual Assault Conviction Rates by Immigration Status in Texas, 2016

 

Sources: Author’s analysis of Texas Department of Public Safety data, the American Community Survey, and the Center for Migration Studies.

Figure 4

Larceny Conviction Rates by Immigration Status in Texas, 2016

 

Sources: Author’s analysis of Texas Department of Public Safety data, the American Community Survey, and the Center for Migration Studies.

The 2016 criminal conviction rates in Texas are similar to that of 2015 with one major exception: The illegal immigrant homicide conviction rate is far lower. There were 31 convictions against illegal immigrants for homicide in Texas in 2016 but 51 in 2015. Illegal and legal immigrants had lower homicide, sexual assault, larceny, and overall criminal conviction rates relative to native-born Americans in 2016. 

 

 

 

Marc Thiessen, a columnist at the Washington Post, is highly upset that the Senate Foreign Relations Committee may not approve President Trump’s nomination of Mike Pompeo to be Secretary of State:

For the first time in the history of the republic [since the committee started recording votes in 1925], it appears increasingly likely that a majority of the Senate Foreign Relations Committee will vote against the president’s nominee for secretary of state. If this happens, it would be a black mark not on Mike Pompeo’s record, but on the reputation of this once-storied committee.

Thiessen seems to think that the role of the Senate Foreign Relations Committee, and by extension the United States Senate, is to approve a president’s nominees. But of course, the Constitution provides that “The President … shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States.” The Heritage Foundation’s Guide to the Constitution affirms that “the Senate has complete and final discretion in whether to accept or approve a nomination.” The Foreign Relations Committee is today considering whether to consent to this nomination. The Senate as a whole may choose to reject the negative recommendation and consent to the nomination. (See also the novel and movie Advise and Consent, on TCM this Friday.)

It’s not that members of the committee don’t have legitimate grounds on which to withhold consent. Sen. Rand Paul, a key player as he is likely to be the only Republican on the committee to oppose the nomination, says:

Director Pompeo has not learned the lessons of regime change and wants regime change in Iran….

President Trump sought to break with the foreign policy mistakes of the last two administrations. Yet now he picks for Secretary of State and CIA Director people who embody them, defend them, and, I’m afraid, will repeat them. I will not support their nominations.

One need not agree with that criticism to acknowledge that it’s a reasonable concern on which to reject a nominee.

Thiessen is a former speechwriter to Secretary of Defense Donald Rumsfeld and President George W. Bush, which might give him an executive-branch view of Congress’s role. Before that, however, he served for six years as spokesman and senior policy advisor to Senate Foreign Relations Committee Chairman Jesse Helms, whose willingness to use his position to block presidential nominees was well known. He mentions Helms’s support of President Clinton’s nomination of Madeleine Albright for Secretary of State, but omits the nominees Helms blocked or tried to block, such as Massachusetts governor William Weld and former senator Carol Moseley-Braun.

Thiessen concludes his excoriation of the Senate Foreign Relations Committee with a flourish: Assuming he is confirmed by the Senate, Pompeo “would be more than justified in determining that the State Department is best served by working closely with the appropriators and Senate leadership, and bypassing a committee that can’t make policy, can’t legislate and can’t lead.”

His real complaint, however, is not that the committee can’t lead. It is that the Senate Foreign Relations Committee won’t blindly follow.

President Trump’s campaign promise to ban all Muslim immigration will play an important role in the arguments against his “travel ban” executive order at the Supreme Court this week. While Trump later clarified that the “Muslim ban” actually referred to more targeted policies-such as the ban on certain countries and other “extreme vetting” measures-he consistently argued that the goals of the Muslim ban and these other policies were the same. It is now apparent that these policies are working.

91 Percent Drop in Muslim Refugees

During the campaign, Trump referred to Muslim refugees as a “Trojan horse” that could bring down the United States from the inside. Not surprisingly then, Muslim refugees have seen their numbers slashed most dramatically. From October 2015 through December 2016 (“FY 2016”), monthly arrivals of Muslim refugees averaged 3,076 (Figure 1). From January 2017 through October 2017 (“FY 2017”), they fell to 951 per month. During the first six months of FY 2018, they have fallen to just 275 per month-91 percent below their rate in FY 2016. Sunni Muslims have seen their numbers cut by 98 percent and Shi’ite Muslims by 86 percent.

Figure 1: Average Monthly Muslim Refugee Arrivals
Infogram

At the same time, however, President Trump is not keeping his promise to prioritize Christian refugees. Their numbers have plummeted as well, falling 63 percent from 2016 to 2018. Nonetheless, Muslims were disproportionately affected. In 2016, one in two refugees were Muslim, while just 1 in 6 were in 2018.

26 Percent Drop in Immigrants from Majority Muslim Countries

The State Department issues visas to immigrants-i.e. permanent residents-and nonimmigrants or temporary visitors, guest workers, and students. It does not record the religious affiliation of immigrant visa applicants, but its data indicate a substantial decline in immigrant visa approvals for nationals from the 48 majority Muslim countries-more than a quarter below the prior rate.

In Fiscal Year 2016 (“FY 2016”), immigrants from majority Muslim countries averaged 9,787 permanent residency visas per month. The State Department has only published monthly data starting in March 2017, but from March 2017 to September 2017 (“FY 2017”), monthly arrivals fell to an average of 8,366. From October 2017 to February 2018 (“FY 2018”), they averaged just 7,241-26 percent below the rate for FY 2016. The share of immigrants from majority Muslim countries also fell from 19 percent to 16 percent.

Figure 2: Average Monthly Immigrant Visa Issuances for Nationals of Majority Muslim Countries
Infogram

32 Percent Drop in Temporary Visa Issuances from Majority Muslim Countries

Temporary visa applicants also do not tell the State Department their religious affiliation, but the department’s data show a large decline in approvals for nationals of the 48 majority Muslim countries-nearly a third below the prior rate. In Fiscal Year 2016 (“FY 2016”), travelers from majority Muslim countries averaged 71,407 visa approvals per month. The State Department has only published monthly data starting in March 2017, but from March 2017 to September 2017 (“FY 2017”), monthly arrivals averaged 8,366. From October 2017 to February 2018 (“FY 2018”), they fell to 7,241-26 percent below the rate for FY 2016. The share of travelers from these countries also fell from 8.3 percent to 7.5 percent.

Figure 3: Average Monthly Nonimmigrant Visa Issuances for Nationals of Majority Muslim Countries
Infogram

As I have noted before, during the last decade, majority Muslim countries have never-even during the recession-seen temporary visa issuances fall by more than 1 percent in a single year and immigrant visas never more than 7 percent. From 2007 to 2016, temporary visa approvals for nationals of these countries actually grew 8 percent annually and permanent visas 9 percent annually. Again, compared to the expected increases, the declines are even more remarkable.

“Travel Ban” Countries: 60 Percent Drop in Both Temporary & Immigrant Visas

Of the 48 majority Muslim countries, 33 saw immigrant visas fall, while 45 saw temporary visa numbers decline (excepting Albania, Kosovo, and the Gambia). Some nationalities were much more negatively affected than others. President Trump has, at various times, placed eight majority Muslim countries on his “travel ban” lists: Iraq (January 2017 to March 2017), Sudan (January 2017 to September 2017), Chad (September 2017 to April 2018), Iran, Libya, Somalia, Syria, and Yemen (all January 2017 to now). These countries have seen much more severe declines in immigrant and nonimmigrant visa issuances.

Nationals of the eight majority Muslim travel ban countries have seen immigrant visa issuances fall from 2,654 per month in FY 2016 to 918 per month in FY 2018, a 65 percent decline. These nationals saw their nonimmigrant visa approvals fall from 5,851 per month in FY 2016 to 2,279 in FY 2018, a 61 percent decline. Despite the president removing Iraq and Sudan from the list, their visa numbers did not recover. The declines for each country started before the Supreme Court allowed the travel ban to take partial effect in June and then full effect in December, but they fell more steeply after each ruling.

Figure 4: Average Monthly Immigrant and Nonimmigrant Visa Issuances to “Travel Ban” Nationals
Infogram

Causes of the Decline

The decreases in Muslim arrivals have multiple causes. Refugee admissions are entirely controlled by presidential proclamations. President Trump initially suspended the refugee program, and then, when blocked by the courts, he simply cut the refugee limit in half. His administration has failed even to achieve this target. The administration also directly controls the type of refugees admitted, so the entire decline in Muslim refugee numbers and their share of total arrivals is a consequence of policy choices. President Trump promised to “prioritize” Christian refugees, and while he has cut the number of Christians as well, he has increased their share of total numbers.

Travel ban countries also explain more than two thirds (68 percent) of the decline in immigrant visa issuances from 2016 to 2018, implying that the explicit singling out of those nationalities-including the ones subsequently removed from the list-had a major effect on their ability to obtain or willingness to apply for visas. Travel ban countries also account for 16 percent of the decrease in temporary or nonimmigrant visa issuances from 2016 to 2018. This implies, however, that other causes may be more important in driving that trend.

The State Department rolled out a new “extreme vetting” form, the DS-5535, that requires far more documentation from visa applicants, in the State Department’s words, “who have been deemed to warrant additional scrutiny” (i.e. Muslim applicants). This form-in conjunction with other policies-have resulted in more Muslim visa applications disappearing into the “administrative processing” queue, according to a new report from the American Immigration Lawyer’s Association (AILA). “Administrative processing” is code for “meets the requirements but subject to further security screening.” Unfortunately, the State Department publishes no figures on the frequency of this phenomenon.

Anecdotal reports of visa denials for Muslim applicants began to receive attention in 2017, but the State Department fails to publish visa refusal figures by country of origin, so we cannot put hard numbers behind the reports. Muslim travelers may also want to avoid the United States during President Trump’s presidency. His rhetoric may have scared off some visitors, and stories of lengthy detentions and other mistreatment of Muslims at airports and border checkpoints may discourage others.

Conclusion

President Trump appears to be fulfilling his campaign promise. The United States is accepting the fewest Muslim refugees in decades, and immigration from the Muslim world has received an unprecedented cut under his administration. On the campaign trail, President Trump assured voters that the Muslim ban would be a “temporary ban.” In the coming months, we will find out how temporary these policies discouraging Muslim immigration turn out to be.

In honor of April 22, consider this picture:

It’s taken from Zhu et al’s 2016 paper, “Greening of the Earth and its Drivers.” “Leaf Area Index” is a measure of the density of vegetation cover. It’s positive over most of the planet, and especially so in the purple-shaded regions, which are mainly the tropical rainforest, the most diverse and revered of our ecosystems. 

Only 4% of the surface shows the opposite, or a significant “browning.” The causes of the planetary greening? In a word, “us.” According to the Zhu et al., 91% of the greening is attributable to human activity. Perhaps it’s best to simply quote from the paper:

Factorial simulations with multiple global ecosystem models suggest that CO2 fertilization effects explain 70% of the observed greening trend, followed by nitrogen deposition (9%), climate change (8%) and land cover change (LCC) (4%). CO2 fertilization effects explain most of the greening trends in the tropics, whereas climate change resulted in greening of the high latitudes and the Tibetan Plateau.

Again, Happy Earth Day!

The dramatic news that CIA Director Mike Pompeo met in secret with North Korean leader Kim Jong-un over the Easter weekend has renewed hopes that one of the world’s most dangerous stand offs might be resolved without war. President Donald Trump confirmed via Twitter that details for a summit meeting were “being worked out” and predicted “Denuclearization will be a great thing for World, but also for North Korea!” The good feelings continued during the week, with Kim announcing on Saturday that the North no longer needs to conduct nuclear or missile tests.

Americans should welcome such prospects, but South Koreans have reason to be wary. They have the most to lose from conflict on the peninsula, a real possibility if negotiations fail. After all, President Trump has an uneven track record when it comes to making promises and following through. And even as he boasts of his success in getting the North to the negotiating table, he has also said that he wouldn’t attend the summit if he thought it wasn’t worth it. Unsurprisingly, the South Koreans have also been engaged in direct talks with the North. South Korean President Moon Jae-in will meet Kim next week. There has even been speculation that talks could end the Korean War. For now, however, and thinking beyond secret meetings and high-level summits, South Korea’s future, in a very real sense, still hinges on the decisions and actions of men and women living in the United States.

Although that has been the case for decades, it can’t ever be a comforting feeling, and that sentiment informed an essay just published in the New York Times. As I note, the process mostly played out well, for both the United States, for South Korea, and for regional stability:

Under American tutelage, South Korea eventually evolved from a desperately poor autocracy to one of the wealthiest democracies on the planet. American taxpayers continue to spend billions of dollars a year to help maintain regional security. A similar process played out in other parts of Asia and in Europe, where the American security umbrella, including tens of thousands of military personnel, provided room for those countries’ leaders to build strong democracies and economies.

American leaders argued that such policies served the cause of global peace and security. They also reasoned that the substantial costs would be tolerable. And, so long as American productivity and workers’ wages were rising, it seemed that Uncle Sam could ensure a decent standard of living at home and security around the world.

Of course, the costs associated with defending others were measured in more than American treasure. The Korean War Memorial in Washington, DC, honors the 5.9 million Americans who served in the military between June 1950 and July 1953, and especially the 54,246 who gave their lives in that conflict. The Vietnam Memorial, a short distance away, contains the names of 58,318 Americans who made the ultimate sacrifice on behalf of a government in Saigon that struggled to command the respect of the people of South Vietnam, and that collapsed soon after the United States withdrew its support.

This pattern has persisted into the present day. When Iraqi troops were routed by Islamic State fighters in 2014, some took this as proof that U.S. forces should have remained in Iraq. Fear of government collapse in Afghanistan has led two successive U.S. presidents to increase the number of U.S. troops there. President Trump quickly walked back his suggestion that a few thousand troops in Syria would leave any time soon. Supporters of an on-the-ground – and de facto permanent – presence in such places often point to South Korea, Japan, and Germany as examples to emulate. By this logic, Americans win just so long as we never leave.

It is becoming harder, however, as I note in the Times:

for America to maintain this global posture. Eventually, it may become impossible, in part because we helped create the conditions that allowed other countries to prosper and grow….

Americans should be debating how to manage that transition in a way that avoids destabilizing the rest of the world. Unfortunately, if the current administration’s maneuvers between the two Koreas are any indication, this is the last thing on the minds of policymakers.

But while many in Washington resist the suggestion that the United States should revisit its approach to the world, other countries’ leaders are rethinking their dependence on others. As Constanze Stelzenmüller explained in a recent paper for the Brookings Institution, Europeans, in particular, have an “existential” interest in “preserving an international order that safeguards peace and globalization.”

I conclude:

Transitioning to a world with many capable actors won’t be easy. It will require a deft hand to unwind defense arrangements, and patience as others find their way. Given their own domestic spending priorities and continued uncertainty about whether the United States will recommit to the old model, most American allies are likely to take a wait-and-see attitude. A gentle nudge might be needed to move them from comfortable adolescence to empowered adulthood.

[…]

The alternative is a renewed commitment to discourage self-reliance among allies. That will be an undertaking far more onerous than any the United States has attempted since World War II — and one that is unlikely to work.

You can read the whole thing here. And let me know what you think by tweeting me @capreble

 

With teacher strikes and demonstrations in several states tied not just to teacher compensation, but also the belief that public schooling has been starved for resources, it is worth looking at the spending data. Not trying to say what “fair” teacher pay is, or the degree to which spending may affect test scores; just seeing what we’ve been spending, and how it has changed over the years.

Let’s start with relatively recent history, the only span of years for which the federal government has readily available, total per-pupil spending data for public K-12 schools at the state level. (These data were assembled by pulling from the version of this table for every year and adjusting for inflation.) We want to look at total spending because taxpayers don’t just spend money for operating costs such as teacher salaries, but also on things like new school buildings, expenditures only included in total cost tabulations.

Look at the colorful figure below—every state is a line—and you will see that inflation-adjusted spending generally went up, on average (the bold, black line) from $11,132 in 99-00 to $13,187 in the 2014-15 school year, an 18 percent real increase. Of course, as you can see, there are some states that spent a lot more at the outset—and boosted spending much more over time—than others.

What you will also notice is a steady climb in spending between 99-00 and 07-08, a decline until 12-13, then an uptick. That’s the effect of the Great Recession and the slow recovery from it. The 12-13 trough saw an average per-pupil expenditure of $12,789, a bit more than the amount that was spent in 04-05, just 8 years earlier. As many people worried about public school resources have accurately noted, there was a drop in K-12 spending, and on average it has not yet returned to the peak spending of 07-08. It also, however, did not take a deep dive.

Of course, we didn’t only start spending money on public schools in 99-00; we’ve spent for decades. Looking at that, as you can see below, when we say we hit a funding “peak” in 07-08, we mean peak! The drop in spending since the Great Recession has been an anomaly. Since 1919-20, inflation adjusted, total per-pupil outlays have shot up from $609 to over $13,000. (Note that “year” skips 10 years after 1919, and changes in 2-year increments between 1929 and 1969.) It is a stretch to assume education funding from almost 100 years ago is comparable to today even adjusting for inflation, but just go back to 70-71; spending per-pupil has more than doubled, from $5,926 to $13,119!

Seeing the long-term funding picture provides some crucial context that is too often neglected in discussions of public K-12 funding broadly: It had escalated for decades, and only for a few years did it drop.

That said, let’s look at total spending since 99-00 in the states that have seen the most-discussed labor unrest—Arizona, Colorado, Kentucky, Oklahoma, and West Virginia. All are on the lower-end of spending. But have they been cutting?

In Arizona, spending has been a bit all over the map since 99-00, but was at a low point in 13-14, with just a slight uptick the following year.

Colorado, perhaps appropriately, looks more like a mountain than Arizona, with big spending growth until 07-08, followed by a big drop. By the end of the period the state was basically right back where it began, spending $10,900 in 99-00, and $10,815 in 14-15.

How about Kentucky? Not as striking a trend as Arizona or Colorado, with spending increasing almost 30 percent over just 8 years, and only dropping a relatively small amount afterwards, giving back around $1,000 after a more than $2,600 boost.

Next we go to Oklahoma, site of a long teacher labor action that started with a bang and ended with a bit of whimper…and a promise of a $6,000 boost in salary for every teacher. In the Sooner State we see a bit of a roller coaster, but since 1999-00 spending is up from $8,310 to $9,114. Of course that is down from a peak of $9,675 in 07-08, but the general trend has clearly been a rising one.

Finally, there’s West Virginia, the state that started the recent wave of strikes. Here again, the trend since 1999-00 is not one of cuts, but spending increases, with a zenith actually in 09-10, rather than 07-08. Indeed, in the decade between 99-00 and 09-10 per-pupil spending in West Virginia rose 22 percent, or by nearly $2,400. Yes, it generally dropped thereafter, but only down to about $12,000 in 12-13, and it had rebounded to $12,437 by 14-15.

Bottom line: Many states have seen decreasing per-pupil expenditures for public schools since the Great Recession. But how deep varies from state to state, and it comes on the heels of nearly a century of almost unremitting spending growth.

Scott Pruitt, the Administrator of the U.S. Environmental Protection Agency (EPA), is loathed by most researchers and environmentalists, but he may yet emerge as science’s unlikely redeemer.

Pruitt is one of the least popular people in America. Before coming to DC, he was the attorney general of Oklahoma, where he described himself as “a leading advocate against the EPA’s activist agenda,”— a claim he made good by suing the Agency no fewer than 14 times.

But Pruitt — who in public appears reasonable, quietly-spoken and polite — denies having declared war on the environment, only on the EPA’s scientific protocols. The 1970 Clean Air Act requires the agency, when proposing new regulations, use criteria that “accurately reflect the latest scientific knowledge.”  

Governmental skepticism of science has a long pedigree. On launching Medicare on June 15, 1966, LBJ berated the National Institutes of Health for having published lots of papers without their having benefited any patients. Earlier, in his Farewell Address, Eisenhower warned of US public policy becoming “the captive of a scientific-technological elite.” Now Pruitt maintains that skeptical tradition by challenging the EPA’s science—and by extension, much of the way research is performed in the U.S. today.

Pruitt has forbidden the EPA from referencing papers that do not allow free access to their underlying data and methods. Non-scientists are often astonished to learn that, in many academic disciplines, there is no obligation on researchers, when submitting papers for publication, to make their original data available.

Non-scientists, moreover, rarely grasp how poor many peer-reviewed papers are. John Ioannidis of Stanford University is, sadly, famous for his 2005 study entitled “Why Most Published Research Results are False,” in which he indeed explained why most published research results are false. Why? Because the authors misused statistics. Consciously.

In a 2016 paper entitled “The Natural Selection of Bad Science”— published in no less a journal than Royal Society Open Science—Paul Smaldino (University of California, Merced) and Richard McElreath (Max Plank Institute, Leipzig, Germany) showed that researchers will select “methods of analysis … to further publication rather than discovery.” Smaldino and McElreath further chronicled how, over the last half century, lone statisticians have in vain protested the institutional abuse of statistics by entire scientific disciplines. But everybody—authors, editors, university presidents, funding agencies et alia—has an incentive to maximize publication rates, and if publication has to trump discovery, so be it.  

In challenging the way the EPA does science, Pruitt is actually challenging the conflicts of interest now affecting many disciplines. When he discovered that scientists on just three of the EPA’s Science Advisory Boards had, over the previous three years, collectively received research grants from the Agency of no less than $77 million (thus incentivizing them to exaggerate environmental problems) he declared that members of the Science Advisory Boards had to be genuinely independent of the Agency. From the criticism that decision attracted, it is obvious that many researchers cannot see how receiving money can indeed generate a conflict of interest.

The source of many of science’s problems today was identified in 2016 by David Sarewitz of Arizona State University who, in an essay entitled “Saving Science,” identified peer review as the villain. In the days before science was funded by the federal government (ie, before 1940 in the U.S.) scientists were embedded in the real worlds of industry and of health foundations, where they were judged by discovery—and where, in the process we call technology, their claims of discovery were tested against reality. In Sarewitz’s words, it is “technology that keeps science honest.”

But scientists’ claims of discovery are today increasingly tested not against reality; rather, they are judged by their peers. And peers have their paradigms. And those paradigms can be wrong. So dietary fat, for example, was for decades demonized by the deft application of statistics by researchers anxious to be funded, published and promoted by their peers. And salt was claimed, falsely, to be a major cause of population-level hypertension, while the principal cause of drug overdoses is claimed to prescription opioids rather than policies restricting them. 

Pruitt’s conduct and ethics at the EPA have been and will be criticized, and his attacks on the Agency’s failings in science have been dismissed as the self-serving acts of a Trump partisan. But by highlighting  science’s systematic shortfalls, Pruitt might be doing it a favor.

I previously blogged about a Canadian constitutional challenge to a New Brunswick restriction on purchasing beer from other provinces and bringing it back to New Brunswick. The Canadian Supreme Court ruled on the case yesterday, and, unfortunately, declined its opportunity to establish a broad principle of free trade within Canada.

The constitutional provision at issue, Section 121, states:

All Articles of the Growth, Produce, or Manufacture of any one of the Provinces shall, from and after the Union, be admitted free into each of the other Provinces.

On its face, that sounds pretty broad. But the court came up with a narrow interpretation of the scope of provincial measures that are prohibited:

[114]   In summary, two things are required for s. 121  to be violated. The law must impact the interprovincial movement of goods like a tariff, which, in the extreme, could be an outright prohibition. And, restriction of cross-border trade must be the primary purpose of the law, thereby excluding laws enacted for other purposes, such as laws that form rational parts of broader legislative schemes with purposes unrelated to impeding interprovincial trade.

Applying that standard here, the court found that the New Brunswick restriction, Section 134(b) of the Liquor Control Act, did not violate Section 121:

[125]  We conclude that the primary purpose of s. 134(b) is to prohibit holding excessive quantities of liquor from supplies not managed by the province. New Brunswick’s ability to exercise oversight over liquor supplies in the province would be undermined if non-Corporation liquor could flow freely across borders and out of the garages of bootleggers and home brewers. The prohibition imposed in s. 134(b) addresses both. While one effect of s. 134(b) is to impede interprovincial trade, this effect is only incidental in light of the objective of the provincial scheme in general. Therefore, while s. 134(b) in essence impedes cross-border trade, this is not its primary purpose.

The court could have gone for a number of broader standards, but for whatever reason chose not to. That means free trade within Canada is now dependent on the provinces to avoid interprovincial trade restrictions on their own, or it has to rely on the new Canadian Free Trade Agreement (which updates the previous Agreement on Internal Trade, and is sort of like an international trade agreement that applies to the Canadian provinces). It is possible that this Free Trade Agreement will have some success in getting rid of interprovincial barriers, but a constitutional principle would have been broader and more effective. This court decision was a missed opportunity for Canadian free trade.

The Trump administration has given notice of its intent to expand a current rule denying certain immigration applications to “public charges”—that is, people who are likely to rely on the government for their support. “The primary benefit of the proposed rule would be to help ensure that aliens … are self-sufficient,” the Department of Homeland Security (DHS) writes in a leaked version of the draft regulation. This intention coheres with Cato proposals to move immigrants (and everyone else) off government support, but the rule itself has serious problems that will have a net negative effect on government budgets.

Since 1891, federal immigration law has denied visas or status to foreigners deemed “likely to become a public charge” in the United States. The likely public charge law does not directly prevent immigrants from legally receiving welfare. Rather, it prevents them from receiving legal status in the United States if a government bureaucrat predicts that they could end up at some point in the future depending on welfare that the law allows them to receive. This draft rule would alter the procedures governing how DHS bureaucrats make these likely public charge predictions. It would apply to anyone in the United States applying to adjust or extend their status in the country or those seeking to enter the country for the first time.

DHS’s current guidance from 1999 defines public charge to mean “primarily dependent” on welfare, as demonstrated with the receipt of certain cash welfare programs. This new rule would redefine the term to mean receipt of any government assistance, including refundable tax credits, in any amount greater than 3 percent of the poverty line—$1 per day for a single person or 50 cents per day per person for a family of four, respectively, over the course of any year of their lives. In addition, it counts the use of public benefits by U.S. citizens—spouses, children, or parents—who depend on the immigrant. To predict future use, the rule requires adjudicators to consider a list of seven factors and at least 19 pieces of evidence.

Brief Overview of the Draft Rule’s Problems

The new rule has seven particularly serious problems.

First, its public charge definition of a $1 per day is overbroad. Public charge has always meant a level of support substantially higher than $1 per day (not to mention 50 cents for families). Because the large majority of immigrants have net positive lifetime effects on government budgets, keeping out immigrants based on such a low level of predicted support makes little fiscal sense. It will inevitably end up excluding many immigrants who will contribute to the U.S. Treasury and economy. DHS should narrow its redefinition to “significantly dependent” on public benefits—cash or otherwise.

Second, DHS’s standard of a $1 per day entirely ignores the degree to which immigrants support themselves. Historically, “public charge” has always had two elements: 1) receipt of benefits and 2) inability to support oneself apart from the support. Yet DHS defines public charge as an absolute amount of benefits—$1/ per day—which could easily account for less than a percent of a person’s income. This outcome ignores the history of the law and lacks fiscal sense because it fails to consider the tax revenue and economic growth foreigners who work create. DHS should assess “significant dependence” based on the amount of benefits relative to the person’s expected income—at least 20 percent of the person’s annual income.

Third, DHS cannot justify counting welfare use by U.S. citizens in the immigrant’s household against applicants. Not only would the U.S. citizens receive these benefits even if the immigrant receives no legal status, denying legal status to a dependent of an immigrant would likely increase their use of public benefits. DHS should only consider benefits used by dependents if they are noncitizens that they have brought with them to the United States.

Fourth, the rule fails to define what DHS means by “likely” to use benefits. Likely implies a level of certainty appreciably above 50:50, but DHS never clarifies this, leaving it up to bureaucrats to decide the threshold on a case-by-case basis. This will lead to inconsistent adjudications and denials to people who should receive approvals. These false positive could result in billions of dollars in lost output and federal revenue without offsetting benefits. A redrafted rule should define the meaning of the word “likely” in accordance with its accepted meaning—a threshold of 70 percent probability of use—giving clarity to applicants and adjudicators.

Fifth, the rule’s complex weighting system for determining likelihood to use benefits is entirely arbitrary. Bureaucrats would determine how to weight the factors—such as age, health, and income—on an ad hoc basis. The process is equivalent to a “merit-based” points system where applicants do not know the point values, and bureaucrats make them up as they go. DHS should use careful statistical analysis to create a factor model to estimate the probability of use precisely. This model would allow immigrants to know whether they qualify in advance of applying.

Sixth, the administration has failed to harmonize DHS’s new rule with State Department’s separate public charge regulations. This means that immigrants who have received a visa abroad, which authorizes travel to the United States, could be evaluated against a completely different standard when they reach a port of entry or, later, when they file additional immigration applications inside the United States. Such discord would create chaos in the legal immigration system. DHS should defer to State Department public charge determinations unless a material change has occurred since State Department approved the immigrant.

Seventh, DHS failed to estimate the major costs of the rule. They only consider the costs associated with filing forms, not with excluding immigrants from the country or separating U.S. citizens from their families. DHS needs to calculate the full costs of the rule. To do so, it needs to estimate the number of immigrants the rule would exclude and estimate the direct and indirect effects of these exclusions on tax receipts and economic growth.

Without these reforms, this rule would exclude far more contributors to the United States than public charges. If Congress wants to prevent immigrants from using any welfare at all, it should amend the law to reflect that goal. Until then, DHS should return to the drawing board and craft a better rule.

What the New Regulations Would Change

U.S. law prohibits any foreigner who is “likely at any time to become a public charge” from receiving a visa or status (8 U.S.C. 1182(a)(4)(A)) and requires deportation of those who become a public charge within five years except from “causes affirmatively shown to have arisen since entry” (8 U.S.C. 1227(a)(5)(A)).” These provisions fail to define any of their terms, but the “likely public charge” assessment must consider several factors: age, health, family status, assets, resources, financial status, and education or skills (8 U.S.C. 1182(a)(4)(B)). They may also consider the sponsor’s affidavit pledging to support the applicant at 125 percent of the poverty line. If adjudicators do find them to be a “public charge,” they can request that the applicant post a bond to overcome the determination (8 U.S.C. 1183) that the immigrant forfeits if they become a public charge.

DHS’s current guidance came from an Immigration and Naturalization Service (INS) decision in 1999 to define public charge for the first time, stating that it meant any alien “primarily dependent on the Government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or institutionalization for long-term care at Government expense” (INS, p. 2). It only considers likelihood to use cash assistance—Supplemental Security Income, Temporary Assistance for Needy Families, and state and local cash assistance—or “long-term institutionalization” (INS, p. 7). It excluded Medicaid, Food Stamps, the Children’s Health Insurance Program, health insurance subsidies, housing benefits, child care services, job training, transportation benefits, refundable tax credits, and similar state or local programs, and it maintained a distinction between “earned” cash benefits like Social Security or unemployment insurance from unearned ones (INS, p. 7).

The likely receipt of even these limited benefits will not necessarily result in a public charge determination (INS, p. 7). Rather, the adjudicator must account for the “totality of the circumstances,” considering the factors listed in the statute. The State Department adopted the same definition and similar guidance for issuing visas abroad (which was updated in January 2018). The current DHS guidance fails to give applicants a concrete understanding of when they would be deemed a public charge, but because the definition of public charge is so limited, it creates very little disruption. Barely a half of a percent of immigrant visa applicants—and virtually no temporary visa applicants—received such a public charge visa refusal in 2017, and two thirds of those overcame the determination through additional evidence or bonds.

Relying on the State Department’s older guidance that considered noncash benefits but did not provide a definition of “public charge” or “likely to become,” consular officers refused 204,733 immigrant visas on public charge grounds from 1991 to 2000, ramping up steadily year after year until the 1999 guidance (Figure below). The State Department also rejected 35,290 nonimmigrant visas. During this time, public charge refusals represented nearly a quarter of all immigrant visa denials and accounted for nearly all denials based on a specific ground of refusal as opposed to the general ground “Applications Do Not Comply With the Law.”

From 2001 to 2017, the State Department refused just 8,176 immigrant visas on public charge grounds—7 percent of total immigrant visa refusals—and 11,877 nonimmigrant visas—0.4 percent of the total. Unfortunately, the trends before 1991 are unknown.

Figure 1: Public Charge Visa Refusals by State Department Consular Officers, 1991-2017*

Source: U.S. Department of State (1991-1999, 2000-2017)
*Note that years with no refusals actually had “negative” refusals, meaning that refusals in prior years were overturned

To put the 204,000 State Department visa refusals in context, INS denied entry to only slightly more than that number in its entire history from 1892 to 1990 (219,439). INS’s public charge denials fell so low that it stopped publishing the figures after 1990.

Figure 2: Immigration and Naturalization Service’s Public Charge Exclusions at Ports of Entry, 1892-1990

Source: Immigration and Naturalization Service

DHS’s new draft regulations would repeal the “primarily dependent” guidance and redefine public charge to mean “any government assistance in the form of cash, checks or other forms of money transfers, or instrument and non-cash government assistance in the form of aid, services, or other relief, that is means-tested or intended to help the individual meet basic living requirements such as housing, food, utilities, or medical care” (pp. 204-205). It would also end the cash-noncash distinction and incorporate a list of 14 benefit types, including Medicaid, Food Stamps, Child Health Insurance Program, and refundable tax credits like the Earned Income Tax Credit (pp. 210-11). Italics in Table 1 indicate changes from current law. It would exclude “earned” benefits like Social Security, public education, government loans, in-state tuition, disability benefits, and Medicare unless a government covered the premiums.

Table 1: List of Public Benefits Included or Excluded from Public Charge Consideration under DHS Draft Rule

  Public benefits include   Public benefits exclude

1

Supplemental Security Income

1

Social Security (OASD)

2

Temporary Assistance to Needy Families

2

Veteran’s benefits

3

State cash benefit programs

3

Unemployment insurance

4

Other Federal benefits for purposes of maintaining the applicant’s income

4

Medicare benefits, unless the premiums are partially or fully paid by a government agency

5

Nonemergency Medicaid

5

State disability insurance

6

Subsidized health insurance

6

Government loans that require repayment

7

SNAP (Food Stamps)

7

In-state college tuition

8

Nutrition Program for Women, Infants, and Children (WIC)

8

Student loans

9

Child Health Insurance Program

9

Public benefits received where the total annual value in any 1 year does not exceed 3 percent of the total Federal Poverty Guidelines

10

Housing assistance

10

Elementary and secondary public education

11

Means-tested energy benefits

11

Benefits under the Individuals with Disabilities Education Act

12

Institutionalization at government expense

12

Non-refundable tax credits, and refundable tax credits that are not means-tested

13

EITC (and similar refundable tax credits)    

14

Other similar benefits    

Source: Department of Homeland Security.
Note: italics = change from current law.

The proposed rule would also not consider de minimis amounts of public benefits of less than 3 percent of the federal poverty line, $364 a year for a single person or $753 for a family of four—the equivalent of $1 per day per person or 50 cents per day per person, respectively (pp. 211-12). It would consider benefits received by dependents, including citizens, of the immigrant (pp. 69, 74-76). The draft rule change would only take into account newly classified benefits if the applicant received them after the date on which the new regulations are finalized (p. 111). This would give current recipients time to transition to self-sufficiency.

In addition, if an adjudicator determines an applicant to be a likely public charge, they can allow them to post a public charge bond—currently a procedure rarely used. The applicant would pay an amount commensurate with their level of risk but not less than $10,000 (pp. 115-17) and be allowed to adjust status or enter the country. This process would only be available, however, to those without a highest level of risk, based on factors described below (see Tables 2 and 3 at the end). The bond amounts would be based on the average 5-year benefit receipt level for persons using public benefits based on household size.

Moreover, the new rule would affect immigrants only when applying to enter, extend, or change their status in the United States (p. 1). In the leaked draft, the sections related to deportability are left blank “to be inserted” (pp. 219-220). Even if the change did apply to current residents, it is unlikely to result in many deportations. Under current law, if a resident can show that the causes of their indigence arose after their arrival, or that they became a public charge more than 5 years after entry, they cannot be deported (8 U.S.C. 1227(a)(5)(A). At the same time, case law requires government authorities to request repayment within 5 years of the person’s entry, a legal obligation must exist to repay, and the immigrant must refuse to repay (see Matter of B—, 3 I. & N. Dec. 323 (BIA 1948)).

Problems with the DHS Public Charge Rule

1.      DHS defines “public charge” much too broadly

The average immigrant is a lifetime net fiscal contributor. The National Academy of Sciences (NAS) recently produced a number of estimates on the direct fiscal effects of immigration (p. 349, Table 8-14), and the average of those estimates indicate that a recent immigrant to the United States will contribute to all levels of government, in net present value terms, $150,000 more in taxes than they receive in benefits over their lifetime. That makes it critical that the definition of “public charge” is not overbroad, excluding people who would be net fiscal contributors. Unfortunately, DHS’s definition is overbroad.

DHS labels as a “public charge” any immigrant who it expects to receive, as a single person, $1 per day or more in public benefits (pp. 211-12). For a family of four, it sets the level at 50 cents per day per person. This definition fails to accord with the plain meaning or historical understanding of “public charge”—or ward of the state—which has always implied a significant degree of support, not any support at all. Nineteenth century authorities use the phrase in connection to vagrants, beggars, indigents, or paupers. The Immigration Act of 1891 explicitly equated people likely to become public charges with paupers. Each of these words denotes a severe level of impoverishment.

The legislative history reinforces this impression. In the 1820s, New York and Massachusetts passed laws to require shipmasters to pay a bond to indemnify the city against costs associated with passengers who later became “chargeable as paupers” to the city. The bonds were forfeit if the individual entered an almshouse within a few years of entry, meaning that almshouse residency was the effective definition of public charge. The Supreme Court’s 1875 decision to overturn these state laws as unconstitutional led directly to the 1882 passage of the federal law that excluded immigrants “chargeable as paupers,” later amended to keep out those “likely to become a public charge” in 1891. Courts subsequently read this phrase “to exclude persons who were likely to become occupants of almshouses for want of means with which to support themselves in the future” (Howe v. Savitsky (1917)).

Unlike INS’s 1999 guidance, DHS makes absolutely no attempt to tie its new rule change to this history. Indeed, all they can offer as justification is the 1922 case of Ex parte Kichmiriantz in which a California District Court read the statute to mean “money charge on, or an expense to, the public for support and care” of an immigrant. Yet this case involved a young man admitted to an insane asylum for permanent year-round care. DHS cannot extrapolate the phrase “an expense to the public” in the context of this case into any expense at all. Far from undertaking a rigorous analysis of the phrase, the judge was simply noting that given the fact that the man had not imposed any expense to the public because his parents had covered his bills, he could not possibly be a public charge. DHS reverses the judge’s meaning. Nothing in the legislative history or judicial record endorses such a broad rule.

Excluding people based on such a low level of welfare consumption makes  no fiscal sense either. According to NAS, the vast majority of immigrants are fiscal contributors (p. 349). The DHS rule implies that America’s fiscal outlook would improve if most Americans, who at some point live in a household using benefits, set out for other lands. Far from protecting U.S. taxpayers, such an exodus would shrink the economy and tax revenues with it. This absurd conclusion demonstrates the importance of a narrowly targeted rule.

DHS could, however, reasonably update its public charge definition. By excluding noncash benefits of any kind, the current guidance implies that someone could not become primarily dependent on the government through their use alone or in combination with other assistance. This is incorrect. The statute could justify broader definition, such as “significantly dependent,” that also considered noncash benefits.

2.      DHS defines “public charge” without regard to ability to support themselves

As the history of public charge shows, the phrase has always had two aspects: 1) receipt of significant government assistance and 2) inability to support oneself apart from that assistance. That is why historical sources identify public charges with paupers and other destitute individuals. Howe v. Savitsky (1917) emphasized that public charges entered almshouses “for want of means with which to support themselves in the future.” In the original understanding, public charge was not just about the willingness of the person to use benefits, but also the perceived moral necessity of the government giving them benefits. The government had to take “charge” of the person to prevent their starvation or total destitution.

For this reason, current DHS guidance defines public charge relative to the income of the applicant, “primarily dependent” on government assistance (i.e. 51 percent of a person’s income). According to DHS, it “does not believe that an alien must be 50 percent or more dependent on the government to be considered a public charge” (p. 42). This objection is reasonable, but rather than reducing the standard to 51 percent to 30 percent, 20 percent, or 10 percent, of a person’s income, they drop the relative standard entirely and adopt an inflexible absolute threshold of 3 percent of the poverty line: a dollar per day (or less in the case of families). Even a person in poverty could be expected to be more than 95 percent self-sufficient, yet receive a public charge determination. People with higher incomes could be more than 99 percent self-sufficient, and yet receive public charge denials.

In 1906, the House of Representatives considered a bill that would have required all male immigrants to present $25 to avoid a public charge determination. In 1907, nominal per capita GDP was $392.81, so the proposed requirement was 6 percent of per capita GDP. In 2017, 6 percent of per capita GDP was about $3,100. In 1906, however, members of Congress saw the $25 test as much more restrictive than current law, meaning that because this legislation never became law, it would be difficult to justify an interpretation more restrictive than this standard. Beyond the failure to accord with the statute, an absolute amount of benefits receipt is fiscally senseless because it ignores the tax revenue and economic growth created from productive foreign workers.

Public charge implies a degree of support where the person would have significant difficulty surviving without the government assistance. As suggested above, a reasonable definition of public charge would require the person to be “significantly dependent” on the government. DHS should define significant dependence relative to the person’s income. DHS can reasonably argue that the current 50 percent threshold is too high. At the same time, if 90 percent of an applicant’s income is expected to come from private sources, they would clearly not be a public charge, as they are nearly self-sufficient already—20 percent of annual income seems like the lowest reasonable definition.

3.      DHS counts benefits received by U.S. citizen family against immigrants

DHS will consider public benefits that the U.S. citizen children or spouses in the immigrants’ household may receive in the future if they are the immigrants’ dependents (pp. 69, 74-76). In other words, the one dollar or 50 cents per day standard of support may not even be intended for the immigrant themselves, but rather U.S.-born citizens. On numerous occasions, Cato has criticized this household-centric methodology of assessing the fiscal effects of immigration. Counting the fiscal effects of U.S.-born spouses for or against immigrants is unjustifiable, and while the effects of their descendants are worthy of consideration, considering them only when they live in the household with the immigrant leads to absurd conclusions, like all children are fiscal drains (true, but only as children).

DHS should expect immigrants to support those noncitizen dependents that they bring with them. But even without legal status for the immigrant, U.S. citizens in their household would either 1) receive the same benefits or 2) receive even more benefits if the parent or spouse on whom they depend is refused status in the country. In other words, banning immigrants based on the projected future use of their citizen dependents could actually have negative fiscal value by removing the means of support for certain citizens.

DHS could claim that but for the immigrant, the U.S.-born children would not exist. As a theoretical matter, it is unclear how DHS could justify this counterfactual. Without the immigrant, their spouse may have married someone else and had just as many children. Regardless, the fact is that these children do already exist at the time of application. Counting their receipt of benefits for public charge purposes would not result in the children becoming ineligible for those benefits. DHS’s methodology only results in the denial of status to the breadwinner, which would likely make their children or spouse needier. DHS should only consider the receipt of benefits of the noncitizen dependents of the applicant.

4.      DHS fails to define “likely” to become a public charge

Because current guidance only considers cash benefits—and just 1 in 56 noncitizens currently use cash benefits (p. 51)—the prior probability of an applicant becoming a public charge under its definition is low. Only extraordinary circumstances result in denials on this ground. By contrast, 1 in 4 noncitizens use noncash benefits (p. 51). This raises the prior probability considerably and so requires more carefully considering how the prediction is made. Unfortunately, DHS failed to clarify the key word “likely,” leaving it up adjudicators to determine the probability threshold for refusal on a case-by-case basis.

Without stipulating an acceptable rate of false positives—people erroneously excluded—DHS leaves it open to individual adjudicators to develop their own standards. This will sow chaos in the immigration system as applicants will have no way to know how their application will be processed. This type of uncertainty results in fewer applicants overall—another cost of the rule. Indeed, it was partly for this reason that INS issued its guidance in 1999.

In plain language, “likely” means, per Merriam-Webster, “having a high probability of occurring or being true” or “very probable.” These definitions imply a probability appreciably higher than 50:50. According to a CIA analysis, the median CIA analyst considers “likely” to refer to a roughly 70 percent chance of occurrence. The 30 or more percent who are deemed a likely public charge when, in fact, they would not become a public charge if granted the ability to live in the United States legally is a major cost of the rule that DHS fails entirely to reckon with. Congress did not write a statute that allows DHS to exclude anyone who has a significant possibility of becoming a public charge. They specified “likely.” DHS should clarify the meaning of “likely” as a 70 percent probability of future benefits use.

5.      DHS’s process for determining likelihood will mislabel applicants as public charges

The draft rule creates a nontransparent weighting system to identify whether someone is likely to be a public charge. Like the underlying statute (8 U.S.C. 1182(a)(4)(B)), the rule calls for adjudicators to take into account seven primary factors—age, health, family status, assets, resources, financial status, and education or skills—and 19 types of evidence (pp. 205-209, see Table 2). It also adds four heavily weighted negative factors—inability to show employment history or prospect of employment, past public benefits use, a medical condition without unsubsidized health insurance, and an earlier public charge determination—and a heavily weighted positive factor—being able to support oneself and dependents at 250 percent of the poverty line (Table 3).

DHS uses the above factors to create tables showing welfare participation rates among various subpopulations of noncitizens, noting purported correlations between a certain factor and welfare use (pp. 51-105). All of these tables are based on all noncitizens rather than subgroups that must pass a public charge test. Even still, none of the subpopulations had, according to DHS’s own tables, benefits use rates above 50 percent. Even a minority of all noncitizens with incomes below 125 percent of the poverty line received public benefits of any kind in 2013 (p. 105). In other words, none of DHS’s tables by themselves provide evidence in favor of a likely public charge determination based on its factors.

DHS does state that it will take into account all of the factors, considering the “totality of circumstances” (p. 209). “If the negative factors and circumstances outweigh the positive factors and circumstances,” it writes (p. 56), “then DHS would conclude that the applicant is likely to become a public charge.” This weighting mechanism only adds to the confusion. It replaces a simple checklist with an infinitely complex factor model. If none of the factors separately indicates a likely public charge determination, DHS would need to show that the combination of any two factors increase the likelihood of public benefits use and by how much. To do this, they would need to use statistical analysis to identify which factors actually matter.

Rather than clarifying its weighting system, DHS explicitly notes that it will adopt different weights on a case-by-case basis, stating that the “weight given [by an adjudicator] to an individual factor would depend on the particular facts and circumstances of each case” (p. 55). DHS states that “multiple factors operating together may be weighted more heavily” (p. 55). Yet DHS fails to validate any of its conclusions with statistical analysis. As a result, many of its factors could be measuring the same underlying issue.

DHS fails to appreciate this flaw in its system. It notes purported correlations between welfare participation and education (p. 80) as well as income (p. 102). Further, it claims to show “relationships” between public benefits use and age (p. 58), family size (p. 72), English language proficiency (p. 89), and poor health (p. 99). Other discussions imply correlations between public benefits use and educational certificates or licenses (p. 87), employment (p. 95), past benefits use (p. 74), income of sponsor (p. 94), and receipt of a fee waiver for an immigration application (p. 76).

Yet it is clear that these factors are all related. Benefits availability is based on income thresholds. Employment and age are correlated. English language proficiency is related to education level, and so on. DHS simply has not demonstrated which factors matter and which do not. Thus, an applicant could receive negative weights for four or five factors that have no effect, while the one that does have an effect is “outweighed” in DHS’s analysis.

One factor deserves special attention. DHS gives little weight to the sponsorship of immigrants and to sponsors affidavits of support, writing that “DHS expects that a sponsor’s signed agreement would not be an outcome-determinative factor in most cases” because “DHS does not believe that an affidavit of support guarantees that the alien will not use or receive public benefits” (p. 94).

In support of this latter proposition, it cites a 2009 Government Accountability Office (GAO) report finding that 11 percent of sponsored immigrants applied for TANF, Medicaid, or SNAP during the course of 2007 (p. 93). Yet this same report found that “applicants often withdraw their applications” when they discover that the sponsor may have to repay benefits or that their sponsor’s income level may make them ineligible (GAO, pp. 10-11). While national benefit use data for sponsored noncitizens were unavailable, less than 0.05 percent of TANF, Medicaid, or SNAP recipients in Florida were sponsored noncitizens (GAO, p. 13).

This faulty weighting system causes four problems. First, it will result in denials of applicants who should receive approvals. Second, it will lead to denials of applications from people who should never have applied. Third, it will lead to inconsistency between adjudicators with each adopting different standards. Fourth, the inconsistency and uncertainty will reduce applications from people who should apply. All of these mechanisms will injure, rather than protect, the public purse. DHS should use data to create a statistical model that provides precise and objective predictions about future use.

6.      DHS’s rules conflict with State Department’s public charge guidance

DHS’s rule applies only to immigrants (i.e. permanent residents) or temporary visitors, workers, and students (i.e. nonimmigrants) seeking admission at ports of entry or adjusting or extending status inside the United States (p. 1). The State Department handles issuing visas to foreign nationals abroad. In order to obtain a visa, immigrants must also prove to State Department consular officers that they are not likely to become a public charge. Visas allow immigrants to board planes and ask DHS immigration officers to enter the United States. Yet DHS’s new rule substantially conflicts with State Department’s separate public charge guidance, meaning that immigrants could end up receiving approvals from State abroad only to receive denials from DHS in the United States.

When the State Department updated its public charge guidance in January 2018, it retained the old “primarily dependent” definition of public charge that excludes dependence on noncash benefits. Its January changes reasonably allow consular officers to consider noncash benefits as one reason to believe that a person may become dependent on cash assistance. They also overturn a presumption that an affidavit of support by itself is sufficient to show non-likelihood, requiring consular officers to consider whether the sponsor is themselves already on public benefits. But even with these updates, State’s guidance is much less onerous than DHS’s proposed rules (as well as more transparent), resulting a dramatic disconnect between policy abroad and policy in the United States.

State could again update its public charge guidance to harmonize it with DHS’s changes, but considering it just updated it in January, we have reason to doubt this. According to DHS, State “would continue to review affidavits of support and screen aliens for public charge inadmissibility in accordance with its regulations and instructions prior to the alien undergoing inspection and applying for admission at a pre-inspection location or port-of-entry” (pp. 36-37). DHS does not explain how the agency would handle any potential conflict. Regardless whether State updates its guidance again, DHS should specifically clarify that it will defer to State Department public charge determinations if State reviews the immigrant before DHS, unless their situation has significantly changed.

7.      DHS failed to consider most of the costs of its public charge rule.

DHS’s cost-benefit analysis stretches for 36 pages, but only considers the costs of its new immigration application forms (pp. 146-182). It specifically states that it “was not able to estimate potential lost productivity, early death, or increased disability insurance claims as a result of this proposed rule” (p. 129). In addition, here are costs that DHS has failed to consider:

  1. The number of immigrants excluded under this rule as well as the number of U.S. citizens denied the ability to hire foreign employees, reunite with their spouses, children, parents, or siblings, or otherwise engage with foreign persons.
  2. Lost economic growth and tax revenue due to excluding more immigrants and temporary visitors than under current law.
  3. Lost economic growth and tax revenue due to excluding immigrants who use only minor benefits (see #1 above).
  4. Benefits use increases by U.S. citizens due to denying legal status to immigrants with U.S. citizen dependents (#2 above).
  5. Lost economic growth and tax revenue due to excluding immigrants who are not likely to become a public charge (#3-4 above).
  6. Lost economic growth and tax revenue due to immigrants and nonimmigrants refusing to apply in the face of greater uncertainty and higher fees (#3-5).

DHS did not consider broader economic and fiscal effects of its rule because it claims that “there is a lack of academic literature or economic research examining the link between immigration and public benefits,” (p. 129) citing chapter 9 of Harvard economist George Borjas’s non-academic book, We Wanted Workers (2016). Yet nowhere in the cited chapter does Borjas claim to have reached this conclusion. Indeed, he cites the National Academy of Science’s 1997 and 2016 reports on the fiscal effects of immigration, which found short-term net costs and long-term net benefits to all levels of government. These reports in turn cite other studies. Alex Nowrasteh’s 2014 review of the academic literature on the fiscal impact of immigration has more nine pages of academic references.

DHS further states that it “is also difficult to determine whether immigrants are net contributors or net users of government-supported public assistance programs since much of the answer depend on the data source, how the data are used, and what assumptions are made for analysis” (p. 129). The difficulty cannot be doubted, but academics have already performed the most difficult tasks, identifying the assumptions that matter and how they effect the results, and DHS is under a legal obligation to undertake such an analysis. The unwillingness to make assumptions simply defaults to an assumption of zero cost. DHS is effectively telling the public that if the costs are infinite, the rule is still worth it.

Conclusion

The rule would not prevent legal immigrants from accessing welfare if the law allows them to obtain it, setting up a strange dichotomy between our rules at entry and our rules after entry. Under current law, the administration generally cannot prevent immigrants from using welfare in such cases, so no matter how the administration ends up reforming the public charge determinations, Congress should amend the law to limit government benefits only to citizens. The private sector can—and already is—aiding immigrants when they fall on hard times or need help to get ahead, and the evidence indicates that similar restrictions enacted in 1996 had no major effects on immigrant poverty.

A strict no-welfare rule would further protect U.S. taxpayers, allow for higher levels of immigration, provide an incentive for immigrants to assimilate and naturalize, and avoid the necessity—as under this new rule—of turning bureaucrats into soothsayers.

 

Table 2: Factors for Public Charge Determinations under DHS Rule

  Factors I The alien’s age

1

between 18 and 61 II The alien’s health.

2

A diagnosis of a medical condition by a civil surgeon or panel physician;

3

Evidence of non-subsidized health insurance

4

Evidence of assets and resources III The alien’s family status

5

being a dependent or having dependent(s) makes it more or less likely that the alien will become a public charge. IV The alien’s education and skills.

6

a history of employment

7

a high school degree or higher education

8

any occupational skills, certifications, or licenses

9

proficient in English or another language as relevant to working fulltime V The alien’s assets and resources

10

the alien can support him or herself and any dependents, at the level of at least 125 percent of Federal Poverty Guidelines

11

The alien’s annual gross income

12

support to the alien from another person

13

The alien’s cash assets and resources, including as reflected in checking and savings account statements

14

The alien’s non-cash assets and resources that can be converted into cash within 12 months VI The alien’s financial status

15

Whether the alien or any dependent has sought, received, or used, or any public benefit

16

Whether the alien has sought or has received a fee waiver for an immigration benefit

17

The alien’s credit history and credit score

18

Whether the alien has received or is currently receiving any subsidized health insurance VII An affidavit of support

19

Sufficient affidavit of support must meet the sponsorship and income requirements

 

Table 3: Heavily Weighted Factors for Public Charge Determinations under DHS Rule

  Heavily Weighted Negative

1

Non-students who are unable to demonstrate current employment, and have no employment history or no reasonable prospect of future employment

2

Using one or more public benefits within the last 36 months

3

Having a medical condition and being unable to show evidence of unsubsidized health insurance, the prospect of obtaining it, or other non-governmental means of paying for treatment

4

Having previously been found inadmissible or deportable based on public charge   Other factors as warranted   Heavily weighed positive factors

1

The alien has financial assets, resources, and support of at least 250 percent of the Federal Poverty Guidelines or is authorized to work and is currently employed with an annual income of at least 250 percent of the Federal Poverty Guidelines   Other factors as warranted

State Department Regulations: 22 CFR 40.41

State Department Guidance: 9 FAM 302.8

DHS Regulations: N/A

DHS Guidance: 64 FR 28689

Where government debt is concerned, advanced economies should be fixing the roof while the sun shines. That’s the central message of a new IMF Fiscal Monitor entitled “Capitalizing on Good Times.”

The paper entails projections based on growth forecasts and budget plans of what will happen to deficits and debt across advanced economies. And the results for the United States are not pretty. In fact, as the chart below shows, the US is now the only advanced country projected to see a rising debt-to-GDP ratio in the coming 5 years.1

Now we have to take all this with a pinch of salt of course. For advanced economies as a whole the IMF says “the fiscal stance is expected to be mildly expansionary in 2018 and 2019, followed by gradual adjustment in outer years”. I’ll believe that when I see it. Governments around the world have a tendency to plan to be fiscally responsible in a few years’ time, without eventually delivering, and to be overoptimistic about their growth prospects (many of which, it’s worth noting, are much, much worse than the US).

But it is notable that the US is now the only country which is explicitly planning for larger budget deficits, and higher public debt to-GDP, over the next half decade. Hot on the heels of the CBO analysis last week, this report again shows just how unprecedented current US policy action (deliberately expanding borrowing via the tax and omnibus spending bills) and inaction (on entitlement spending) is given the favorable economic conditions.

1 The IMF uses a different definition of debt here – gross government debt – whereas figures usually reported in the media, and by the Congressional Budget Office related to public debt held by the public.

Shortly after the air and missile strikes that U.S., British and French forces launched against the Syrian government’s alleged chemical weapons sites, British Prime Minister Theresa May insisted that the goal simply was to degrade the ability of Bashar-al Assad’s regime to use such weapons in the future and to bolster the longstanding international taboo. “These strikes are about deterring the barbaric use of chemical weapons in Syria and beyond.” May stressed: “This was not about interfering in a civil war.  And it was not about regime change.”

Her comment simply lacks credibility. There is no such thing as a neutral military intervention by outside powers. Even if the intervenors do not intend to affect the wider political context, the act of attacking one party in a civil war automatically works to the disadvantage of that party and strengthens the position of its adversaries. President George H. W. Bush’s deployment of U.S. troops in Somalia in late 1992 did not seem to have an underlying geopolitical purpose. The situation in that fractured country was indeed dire, with tens of thousands of people already starving. Washington’s relief effort aimed at using the U.S. military to distribute food and take other measures to ease the widespread suffering. It fit the definition of a truly humanitarian military mission.

Nevertheless, the moment U.S. troops arrived, they inevitably began to affect the balance of power among the contending militias. Some of those factions soon resented the American presence, and sporadic armed clashes erupted between their fighters and U.S. troops. That dynamic culminated an intense firefight in the capital, Mogadishu—the “Blackhawk Down” episode in early October 1993 that claimed the lives of 18 U.S. Army Rangers and more than 300 Somalis.

In the case of Syria, Western officials cannot even invoke the defense of not wanting to meddle in that country’s larger political and military struggles. Within months after demonstrations erupted against Assad’s rule in 2011, Washington and its allies began to aid the insurgency. Washington helped organize an ad hoc collaboration of some 60 nations (primarily a combination of Western and Sunni Muslim powers) to do so. That group, which became known as the Friends of the Syrian People, met in Tunis in late February 2012 to formulate aid plans, including the provision of “emergency” supplies to refugees and “increased training” for Syrian opposition leaders. In her memoirs, Secretary of State Hillary Clinton stated that although the United States was “not prepared to join such efforts to arm the rebels,” she did tell the Saudi-led coalition that Washington would supplement their efforts by providing nonlethal assistance. By September 2013, the CIA was indisputably providing weapons to insurgent forces.

U.S. support for so-called moderate rebels has increased inexorably since then. In addition to aiding existing factions, the Obama administration asked Congress in June 2014 to authorize $500 million to vet, train, and equip a new force of moderate fighters. Officials spent all of those funds over the next 14 months, but managed to graduate only a few dozen fighters, most of whom quickly defected or surrendered to more radical Islamist forces. 

In light of such a lengthy track record of Western aid to anti-Assad insurgents, it is preposterous for U.S. and Western European leaders to claim that they have no intention of interfering in Syria’s internal strife. From the beginning, their goal has been to help oust Assad from power. Interference in the internal affairs of another nation is objectionable on principle, but it also is strategically unwise in the case of Syria. The reality is that there are very few “moderate” Syrian rebels in any Western meaning of that term. The few secular, democratic types who do exist are largely ineffectual militarily. Militant Sunni Islamists dominate the ranks of the anti-Assad insurgents. With the decline of ISIS, the most powerful faction is Jabhat Fatah al-Sham (formerly the Nusra Front, Al Qaeda’s Syrian affiliate).

By degrading the Syrian government’s military assets with the latest attacks, as well as the missile strikes following the earlier chemical weapons incident in early 2017, the West risks enabling the Islamist rebel coalition to snatch victory from the jaws of defeat in the Syrian conflict. Assad is assuredly a corrupt and brutal ruler, but to help empower such a successor regime is hardly in the West’s best interest. Yet contrary to May’s statements about not interfering in Syria’s struggle, a rebel victory still appears to be the goal of the Western powers.

Raúl Castro is stepping down as president of Cuba. His replacement—Miguel Díaz-Canel—is not only a much younger man (57), but also a civilian. The image of an elderly Cuban dictator wearing an olive-green uniform will soon be thing of the past. Perhaps tropical versions of glasnost and perestroika could also be in the offing?

Don’t get your hopes up.

As Cuban dissident and human rights activist Antonio Rodiles puts it, believing that democratic transition is possible from within the regime constitutes the triumph of hope over facts. First, Raúl is not retiring yet. He remains the secretary general of the Communist Party until 2021. This is the post where true power lies in Cuba. Raúl will also stay as the commander in chief of the armed forces. It seems Díaz-Canel will be just a figurehead of the regime.

Second, Raúl has been grooming his son, Alejandro Castro Espín, to replace him as secretary general of the Communist Party in 2021. Castro Espín is already one of the most powerful—and feared—figures in Cuba. Moreover, Raúl’s son-in-law, Luis Alberto Rodríguez López-Callejas is the CEO of Grupo de Administración Empresarial Sociedad Anónima (GAESA), the military-owned conglomerate that controls 60 percent of the island’s economy. The Castro family will continue calling the shots.

Finally, in recent years the Cuban authorities, including Díaz-Canel, have been adamant that Cuba’s Stalinist political and economic system is not negotiable. Those who expect the new president to be a Cuban Gorbachev will be disappointed.

One group that can attest to the brutish nature of the Cuban regime—and how repression of dissidents has actually increased lately—is The Ladies in White. For a decade and a half, they have been beaten and harassed by government thugs for demanding the release of political prisoners and the introduction of more civil and political liberties. I’m very pleased that in the context of this phony transition in Cuba, Cato awarded them the Milton Friedman Prize for Advancing Liberty 2018.

Unfortunately, there is no reason to believe that the struggle for freedom of The Ladies in White will successfully end any time soon. The Cuban dictatorship will stay in place, just with a younger face at its helm.

Cato adjunct scholars Charlie Silver and David Hyman have an important oped in today’s Houston Chronicle explaining how third-party payment increases prices for drugs and other medical goods and services. An excerpt:

If you’re like us, your health insurance coverage includes a prescription drug benefit. The benefit isn’t free, but you’re willing to pay for it because it saves you money every time you have a prescription filled. You are responsible for your co-pay, and your insurer pays the rest.

At least, that’s how it is supposed to work. But the truth is that your insurer often pays nothing. Your co-pay is all the pharmacy receives. Not only that, but your co-pay often exceeds the amount that someone without insurance would have paid for the drug. That’s right: People who don’t have insurance are paying less than you are for the same drug…

The scam works by taking advantage of consumers’ naive belief that their insurers are watching out for them. Suppose you have high blood pressure and your doctor prescribes amlodipine, a medication used by millions. If you have insurance, you probably think your insurer negotiated a great deal because a month’s supply at the pharmacy costs you only $10. But if you paid cash for the same drug at Costco, you’d have to pay only $1.85…

The real problem is that insurance is a terrible way of paying for things that we can and should pay for directly. Price-gouging does not happen with drugs that are sold over-the-counter at retail outlets like CVS, Costco or Wal-Mart. Those prices are transparent and easy to compare. When people pay directly for drugs, there are no hidden transfers between pharmacies and PBMs either. Competition does for cash customers what PBMs and pharmacies don’t seem able to do for one in four of the prescriptions filled by insured customers — reduce drug prices to the lowest sustainable level.

Overcharges occur throughout the rest of our health care system too, and they drive up the cost of all sorts of procedures. Why? Because insurers don’t care about costs nearly as much as patients do. If we want to get health care spending under control, we should pay for it directly as often as we can.

Read the whole thing.

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