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An ordinance of the City of Sandy Springs, Georgia, prohibits the sale of sex toys. Businesses and individuals have challenged this statute as unconstitutional under the Fourteenth Amendment’s Due Process Clause in controlling their consensual, sexual behavior in the privacy of their homes. The district court and a panel of the U.S. Court of Appeals for the Eleventh Circuit upheld the ordinance given the Eleventh Circuit precedent of Williams v. Attorney General (2004), which upheld an Alabama sex-toy-sales ban.

Cato has now joined the DKT Liberty Project on a brief to the entire (en banc) Eleventh Circuit asking it to overturn Williams, which is inconsistent with more recent Supreme Court precedent in United States v. Windsor (2013) and Obergefell v. Hodges (2015) (the DOMA and same-sex marriage cases, respectively). Williams had relied on Washington v. Glucksberg (1997), where the Supreme Court declared that for a right to be protected under the Fourteenth Amendment, its specific articulation must be “deeply rooted in our history and traditions” or “fundamental to our concept of constitutionally ordered liberty.”

Williams upheld the law after finding no history or traditions concerning sex toys, though the Fifth Circuit disagreed in 2008 in striking down a similar Texas restriction. Windsor and Obergefell then raised the protection of rights concerning private sexual intimacy and Obergefell described this right as “fundamental.” Obergefell also explicitly rejected the Glucksberg test, at least as applied to sexual intimacy, as “inconsistent with the approach this Court has used in discussing other fundamental rights.”

Williams also misinterpreted Lawrence v. Texas (2003), which in striking down a ban on homosexual sodomy made clear that it wasn’t merely the right to perform “a particular sexual act” that was in question in these intimacy cases, but the infringement of rights regulating “the most private human conduct, sexual behavior, in the most private of places, the home.” Lawrence also made clear that state assertion of a “morality” interest isn’t a sufficient justification for limiting the right to adult sexual intimacy. Lawrence held that, as to “whether the majority may use the power of the State to enforce these [moral] views on the whole society,” the answer is no.

Williams essentially ignored Lawrence, given that state’s only asserted interest in upholding the law here is also based on morality. Windsor also clarified the prohibition on morality being a “legitimate state interest” was a holding of Lawrence. The sexual devices at issue here implicate “the most private human conduct, sexual behavior … in the most private of places, the home.”

Although the Sandy Springs ordinance only prohibited the sale of sex toys, and not possession or use, even Williams recognized that “restrictions on the ability to purchase an item are tantamount to restrictions on the use of that item.” The Supreme Court also recognized in Carey v. Population Services International (1977) that the same test must be used for such burdens on the right as prohibiting its exercise entirely, noting that the burden need not be “as great as that under a total ban on distribution.”

Williams is simply no longer good law and should be overturned. Bans on commercial access to sex toys, like restrictions on other forms of sexual intimacy, are unconstitutional. The Eleventh Circuit will hear Flanigan’s Enterprises v. City of Sandy Springs later this spring.

The Fifth Amendment’s Takings Clause states that the government may take no property for public use without just compensation. Unfortunately, local governments often see the Takings Clause not as a fundamental safeguard of liberty so much as an inconvenient obstacle getting in the way of preferred policy outcomes.

One way cities have devised to avoid their obligations to provide just compensation is to condition issuance of land-use permits on landowners’ surrendering property rights the government would otherwise have had to pay for (what’s a little extortion between friends). That’s exactly what the City of West Hollywood is attempting to do with a zoning ordinance that requires developers who build multi-unit housing to either (1) sell or rent a percentage of that housing at below-market prices or (2) pay an “in lieu” fee that the city calculates using a formula created by statute.

Shelah and Jonathan Lehrer-Graiwer sought a permit to build an 11-unit development and elected to pay the in-lieu fee under protest, later challenging it as an unconstitutional taking. The trial court, following binding state-court precedent, found in favor of the city, and the California Court of Appeals affirmed. Now the property owners seek U.S. Supreme Court review.

Cato, joined by Reason Foundation and the National Association of Home Builders, and with the assistance of Antonin Scalia Law School’s Supreme Court clinic, has filed a brief supporting that request.

Under the Supreme Court’s decisions in Nollan v. California Coastal Commission (1987) and Dolan v. City of Tigard (1994), the government may not require a property owner to surrender a constitutional right (here, to just compensation for a taking of private property) in exchange for permit approval unless there’s an “essential nexus” between the conditions and an alleged harm that would be caused by the development. The conditions must also be roughly proportional to the expected impact.

According to the trial court here, Nollan and Dolan are “inapplicable because the in-lieu fees were assessed pursuant to a generally applicable ordinance rather than an ‘ad hoc’ discretionary permitting decision,” even though there’s no dispute that the fee has no relation whatsoever to any alleged public harm that may result from the new development. The legislative nature of the permit restrictions, the court held, simply forecloses a Fifth Amendment challenge.

But there’s no basis in law or logic for exempting legislatively imposed conditions from Nollan/Dolan analysis. The Supreme Court has never distinguished between legislatively imposed conditions and property-specific conditions imposed by municipal officials. As Justice Thomas remarked in his dissent from the Court’s denial of review in a similar case, “It is not clear why the existence of a taking should turn on the type of governmental entity responsible for the taking.”

There’s little reason to believe legislators are any less prone to seeking a way around the Takings Clause and, indeed, legislators have the ability to target a far broader segment of property owners than agencies engaging in ad hoc determinations. That’s why the Supreme Court should take up the case of 616 Croft Ave., LLC v. City of West Hollywood.

The last few weeks have seen a surprisingly activist foreign policy from the Trump administration. Since the inauguration, the rate of U.S. airstrikes in Iraq and Syria, the willingness to launch special operations raids in countries like Yemen, and the use of taunting rhetoric towards adversaries had all increased in comparison to the Obama administration.

But this month things seems to have been put into hyper-drive. Trump authorized a symbolic punitive airstrike on a Syrian military base–a serious escalation that had no legal authority. The administration also threatened to engage in preventive war against North Korea if it should move forward with a sixth nuclear test. Trump ordered an aircraft carrier strike group to sail within 300 miles of North Korea’s coastline in a show of force meant to bolster this threat. And finally, Trump’s penchant for militarism was on display when the biggest non-nuclear bomb in America’s arsenal, never before used in active combat, was dropped in Afghanistan.

It’s hard to say whether these are signs of a clear Trump Doctrine emerging, or whether this intensification of military activism abroad simply reflects Trump’s character. One can easily recall warnings from candidate Trump’s opponents, on the Democratic side but also from many in his own party, that he was temperamentally unfit for office.

In the latest edition Survival, Francios Heisbourg, Chair of the International Institute for Strategic Studies Council, which publishes the journal, compares Trump to Kaiser Wilhem II, the leader of Germany from 1888 to 1918. Wilhelm II goes down in history as the man who took Germany down the path of naval expansion, colonial aggrandizement, and aggressive militarism, eventually contributing to the outbreak of World War I thanks to military postures that were a great departure from those of the more restrained Otto Von Bismark, whom the Kaiser dismissed in 1890. Heisbourg quotes a German historian describing Wilhelm II thusly:

[He had] a taste for the modern–technology, industry, science–but at the same time [was] superficial, hasty, restless, without any deeper level of seriousness, without any desire for hard work…without any sense of sobriety, or balance and boundaries, or even for reality or real problems, uncontrollable and scarcely capable of learning from experience, desperate for applause and success…He wanted every day to be his birthday–unsure and arrogant, with an immeasurably exaggerated self-confidence and desire to show off.

Perhaps not an unfair comparison to President Trump. As it happens, I came across another description of the Kaiser that seems equally relevant, this time in Yale historian Donald Kagan’s On the Origins of War and the Preservation of Peace, citing a biographer of the German leader:

The last Kaiser’s most pronounced–and most fatal–characteristic was his habitual inclination to act almost entirely on the basis of personal feelings…[H]is implementation in the mid-1890s of a reactionary domestic regime, and the campaign a few years later to construct a gigantic navy can be traced to vanity or pique. This ineffable tendency to personalize everything stands revealed in the Kaiser’s correspondence…or his marginal comments…on countless documents, which display passion but rarely judgment.

Whole libraries can be filled with explanations for the outbreak of World War I, and the Kaiser’s temperament and character likely make up an insignificant fraction of them. But one can certainly make the argument that the prudent, sober, skillful, and restrained foreign policy Germany pursued under Bismark from in 1871 until Bismark’s dismissal in 1890 contributed to an era of European peace many contemporaries didn’t think possible. And by contrast, Wilhelm II’s pettiness, lack of prudence, obsession with honor and status, and militaristic tendencies helped lead Germany down the road to war and, eventually, at the end of his rule, to ruin in 1918.

Historical analogies are by nature inexact. And I don’t believe Trump’s foreign policy will be so disastrous as to lead to the devastation of post-WWI Germany. But character and temperament matter and, unfortunately, the checks and balances that are supposed to constrain the president’s war powers have whittled away over many years. With luck, this administration will learn that, in dealing with tough adversaries and dangerous geopolitical flashpoints, the sticks of foreign policy have to be matched with carrots. Otherwise, the risk of war increases.

Scott Alexander (SA) has provided advice to the free speech movement in general and to a student group at Harvard University in particular. If you want more people, especially on the liberal left or within the social justice movement, to support free speech, he says, then you should not invite speakers just because they are controversial.

SA picks AEI scholar and social scientist Charles Murray as an example. In March, protesting students at Middlebury College shut down Murray when he was invited to speak and debate a local professor. SA defends Murray’s right to speak, but says that if a college invites him or any other controversial speaker it should be because they are interested in his ideas, not because they want ”to invite a generic offensive person and he fits the bill.”

Does SA really believe that the motives behind an invitation to a controversial speaker make any difference to people who believe that he or she shouldn’t be allowed to speak at a given college? I doubt it. To them, the speaker (in this case Charles Murray) is the problem, it’s not whether the organizers had a sincere interest in Murray’s ideas or just were looking for ”the ugliest and most hateable person” they could find.

Allison Stanger, the professor at Middlebury who was supposed to debate Murray, has deep disagreements with Murray and planned to take his arguments apart as best as she could. It didn’t matter to the students. They didn’t want to have Murray in person at the college.

And by the way, there is no such thing as ”a generic offensive person.” The sense of offense and insult is always in the eye of the beholder, it’s not something one can measure in any objective way. What is offensive to SA, may sound like sweet poetry to someone else. (Recall the U.S. Supreme Court Justice John Marshall Harlan II’s remark that “one man’s vulgarity is another’s lyric.”) Even within the same religious or ethnic or political community, there may be different perceptions of what is offensive to the group and its members. This remark may seem banal. But we should keep in mind its truth at a time of grievance fundamentalism when people play the offense card to silence voices whose opinions they don’t like. This truth is especially important for the academic world whose business is knowledge production.

SA has criticized the Open Campus Initiative on Harvard University for wanting to raise awareness of free speech by inviting controversial speakers. It later turned out that the student group’s intention was to promote ”ideological diversity for the student body where it is believed to be lacking,” not just to pick the most controversial speakers. They also said that later on that they would invite speakers from the left.

There are several problems with SA’s reasoning. Let me deal with a few.

1. SA’s insists that if we invoke free speech to justify some unpopular idea, this idea becomes a little more tolerated and free speech becomes a little less popular. He doesn’t provide any evidence for this debatable assertion. First, if you invite a speaker that is perceived to be controversial to the audience, it doesn’t follow that you are doing so to defend this person’s ideas. Second, toleration of unpopular ideas doesn’t imply that you agree with those ideas or endorse them. Toleration means that you have to live with ideas that you hate or dislike without trying to ban them or shut them down through violence, threats, or intimidation. To be tolerant of bad ideas implies that we express our disagreement and discontent to refute them. Tolerance makes it possible to manage disagreements and diversity without resorting to violence and bans. This is what the First Amendment is all about. It is still worth remembering Michael Walzer’s concise words on the essence of tolerance: ”Toleration makes difference possible, difference makes toleration necessary.”

2. SA believes that controversy and controversial speakers in and by themselves are to be avoided if student groups want to promote free speech.

First, according to the dictionary controversy means ”a lot of disagreement or argument about something, usually because it affects or is important to many people.” A controversy is ”a discussion marked especially by the expression of opposing views.” A person is controversial when he or she ”is causing disagreement and discussion.” The opposite of controversial is undisputable, agreeable, certain, irrefutable, and uncontested. Who wants a speaker whose views are ”undisputable”, ”irrefutable,” or ”uncontested”? Maybe in a political party or religious community, but not at a university. What’s the point of inviting a speaker with opinions on issues of the day if you don’t want to have debate and controversy?

Questions of politics, religion, culture, philosophy, social science, history, and economics, areas with no consensus on the fundamental issues among professionals and lay people, are inherently controversial and therefore prone to controversy. Controversy is to be welcomed at universities if we want them to be institutions of knowledge production.

Second, SA posits that controversial speakers and controversy will reinforce polarization. Maybe. Or maybe not. A key explanation for the growing polarization in society and online is that more and more people are living in bubbles where they only are being exposed to point of views with which they agree. Ideological self-segregation has been harmful to our capacity for tolerance. Tolerance doesn’t come naturally to human beings. It has to be taught and cultivated. Our instincts are not in favor of toleration. In order to grow and mature as human beings, we have to learn to grapple with ideas that challenge our beliefs and make us uncomfortable.

Further, why am I not sure controversy will create more polarization as SA suggests? Well, many empirical studies on social psychology indicate that when people find themselves in groups of like-minded types, they are especially likely to move to extremes. According to Harvard law professor Cass Sunstein, providing room for ideological diversity may help fight extremism and destructive polarization. ”A good way to create an extremist group, or a cult of any kind,” writes Sunstein in his book Going to Extremes: How Like Minds Unite and Divide, “is to separate members from the rest of society. (…) With such separation, the information and views of those outside can be discredited, and hence nothing will disturb the process of polarization as group members continue to talk. Deliberating enclaves of like-minded people are often a breeding ground for extreme movements.”

This doesn’t mean that individuals and society won’t benefit from deliberations within communities. It promotes the development of positions that would otherwise be invisible or silenced. Many social movements have been made possible through this route, including the civil rights movement and the LGBTQ rights movement. However, it is important to ensure that such enclaves are not walled off from competing views and that there is an exchange of views between members of a group and those who disagree with them.

It is self-insulation rather than group deliberation as such that carries with it the most serious dangers.

Jonathan Haidt, a professor of moral psychology at New York University and founder of Heterodox Academy, in a recent interview with the Wall Street Journal compared the ideological orthodoxy among some students to the kind of fundamentalism that characterizes some religious communities. Though the majority of college students want to learn, Haidt said, there are ”some true believers who have reoriented their lives around the fight against evil,” and ”they are transforming the campus from a citadel of intellectual freedom into a holy space—where white privilege has replaced original sin, the transgressions of class and race and gender are confessed not to priests but to ‘the community,’ victim groups are worshiped like gods, and the sinned-against are supplicated with ‘safe spaces’ and ‘trigger warnings.’”

Unfortunately, these fundamentalists have been given the heckler’s veto on some campuses, and often they are granted it by a weak-willed university administration.

It seems to me that the Open Campus Initiative wants to counter this troubling trend. That’s a good thing. SA’s criticism would be valid if the vast majority of students and faculty were in agreement with the ”controversial speakers” the Open Campus Initiative wanted to invite, and if the student group inviting him was the only one at Harvard. That would not promote ideological diversity. Both premises are not correct in this case.

3. SA defends Charles Murray’s right to free speech in a problematic way. He says: ”If Charles Murray believes what he says is important and thinks saying it makes the world a better place, then he is the sort of person whom free speech exists to defend.”

What if Charles Murray doesn’t believe that what he says is important and that it won’t make the world a better place? Would he then be the sort of person whom free speech shouldn’t defend? And who is in a position to decide what is important and what makes the world a better place? I am sure Milo Yiannopoulos thinks that what he says on college campuses is important and might make the world a better place, though I and SA may be of a different opinion. SA fears that people like Milo Yiannopolous undermine free speech as part of the commons when he says outrageous things that seek the protection of free speech. Again, who’s to decide? The only way to counter Milo Yiannopolous as long as he doesn’t incite violence is to ignore him or talk back: mock him, ridicule him, insult him, debunk his arguments, and take them apart. But don’t ban him and don’t use violence to silence him.

It seems to me that by calling for a moratorium on inviting speakers that ideological fundamentalists want to ban and prevent from speaking on college campuses, SA is trying to treat symptoms with the wrong medicine rather than curing the disease with the right medicine.

Flemming Rose is a Senior Fellow at the Cato Institute and the author of The Tyranny of Silence.



My crusade against the border-adjustable tax (BAT) continues.

In a column co-authored with Veronique de Rugy of Mercatus, I explain in today’s Wall Street Journal why Republicans should drop this prospective source of new tax revenue.

…this should be an opportune time for major tax cuts to boost American growth and competitiveness. But much of the reform energy is being dissipated in a counterproductive fight over the “border adjustment” tax proposed by House Republicans. …Republican tax plans normally receive overwhelming support from the business community. But the border-adjustment tax has created deep divisions. Proponents claim border adjustability is not protectionist because it would automatically push up the value of the dollar, neutralizing the effect on trade. Importers don’t have much faith in this theory and oppose the GOP plan.

Much of the column is designed to debunk the absurd notion that a BAT is needed to offset some mythical advantage that other nations supposedly enjoy because of their value-added taxes.

Here’s what supporters claim.

Proponents of the border-adjustment tax also are using a dodgy sales pitch, saying that their plan will get rid of a “Made in America Tax.” The claim is that VATs give foreign companies an advantage. Say a German company exports a product to the U.S. It doesn’t pay the American corporate income tax, and it receives a rebate on its German VAT payments. But an American company exporting to Germany has to pay both—it’s subject to the U.S. corporate income tax and then pays the German VAT on the product when it is sold.

Sounds persuasive, at least until you look at both sides of the equation.

When the German company sells to customers in the U.S., it is subject to the German corporate income tax. The competing American firm selling domestically pays the U.S. corporate income tax. Neither is hit with a VAT. In other words, a level playing field.

Here’s a visual depiction of how the current system works. I include the possibility that that German products sold in America may also get hit by the US corporate income tax (if the German company have a US subsidiary, for instance). What’s most important, though, is that neither American-produced goods and services nor German-produced goods and services are hit by a VAT.

Now let’s consider the flip side.

What if an American company sells to a customer in Germany? The U.S. government imposes the corporate income tax and the German government imposes a VAT. But guess what? The German competitor selling domestically is hit by the German corporate income tax and the German VAT. That’s another level playing field. This explains why economists, on the right and left, repeatedly have debunked the idea that countries use VATs to boost their exports.

Here’s the German version of the map. Once again, I note that it’s possible–depending on the structure of the US company–for American products to get hit by the German corporate income tax. But the key point of the map is to show that American-produced goods and services and German-produced goods and services are subject to the VAT.

By the way, it’s entirely possible that an American company in Germany or a German company in America may pay higher or lower taxes depending on whether there are special penalties or preferences. Those companies may also pay more or less depending on the cleverness of their tax lawyers and tax accountants.

But one thing can be said with total certainty: The absence of an American VAT does not result in a “Made-in-America” tax on American companies. Even Paul Krugman agrees that VATs don’t distort trade.

Moreover, Veronique and I point out that the lack of a VAT creates a big advantage for the United States.

One big plus for Americans is that Washington does not impose a VAT, which would enable government to grow. This is a major reason that the U.S. economy is more vibrant than Europe’s. In Germany, the VAT raises so much tax revenue that the government consumes 44% of gross domestic product—compared with 38% in America.

And to the extent that there is a disadvantage, it’s not because of some sneaky maneuver by foreign governments. It’s because of a self-inflicted wound.

America’s top corporate income tax of 35% is the highest in the developed world. If state corporate income taxes are added, the figure hits nearly 40%, according to the Congressional Budget Office. That compares very unfavorably with other nations. Europe’s average top corporate rate is less than 19%, and the global average is less than 23%… That’s the real “Made in America Tax,” and it’s our own fault.

The column does acknowledge that BAT supporters have their hearts in the right place. They are proposing that new source of revenue to help finance a lower corporate tax rate, as well as expensing.

But there’s a much better way to enable those pro-growth reforms.

If Congress simply limits the growth of outlays to about 2% a year, that would create enough fiscal space to balance the budget over 10 years and adopt a $3 trillion tax cut. If Republicans want a win-win, dropping the border-adjustment tax is the way to get one.

And what if Republicans aren’t willing to restrain spending? Then maybe the sensible approach is to simply cut the corporate tax rate and declare victory.

A group called People Helping People heard of potential civil rights abuses and harassment occurring at Border Patrol checkpoints in Arizona—interior ones, not right at the border—so started a campaign to monitor such activity. The Border Patrol then decided to prohibit any recording within 150 feet of their location, which includes the public roadside.

A federal district court found that the new rule was a valid time, place, or manner restriction on First Amendment-protected activity. Cato, with the assistance of the UCLA Law School First Amendment Clinic and noted scholar Eugene Volokh, has filed an amicus brief asking the U.S. Court of Appeals for the Ninth Circuit to reverse that ruling.

Recording of law enforcement officers engaged in the public performance of their duties promotes the free discussion of government affairs. The roadside in this case is a “traditional public forum” of the sort that the Supreme Court has held to be required to be open to First Amendment-protected activities. The Border Patrol even got a permit that requires that the facilities be “maintained in a manner that will not interfere with the reasonable use of the public right-of-way.” The government cannot choose to shut down such a forum when it is still being used as a public thoroughfare.

There is also evidence that the Border Patrol closed this area specifically in retaliation for People Helping People’s First Amendment activities; new barriers were added within hours of the start of the monitoring program, making it significantly harder to film, and passers-by were told that the barriers were there only to exclude protesters.

The restriction is also not valid because it does not leave open “alternative channels of communication,” as the Supreme Court has required. In McCullen v. Coakley (2014), the Supreme Court struck down a 35-foot buffer zone around an abortion clinic because it burdened more speech than was necessary to advance the government’s interest. A 150-foot buffer zone burdens even more speech, entirely preventing the recording of law enforcement officers, rather than merely regulating the means of doing so.

Even if this were not a public forum, the Border Patrol’s policy constitutes viewpoint discrimination because it allowed observers who were critical of People Helping People to enter the enforcement zone and record. At base, this restriction is unreasonable because there is no articulable reason to prohibit recording from a public roadside that doesn’t interfere with the Border Patrol’s activities.

When the Ninth Circuit takes up Jacobson v. Department of Homeland Security later this spring/summer, it should reverse the district court and strike down the Border Patrol’s buffer zone.

Global Science Report is a feature from the Center for the Study of Science, where we highlight one or two important new items in the scientific literature or the popular media. For broader and more technical perspectives, consult our monthly “Current Wisdom.”

However, in addition to some very wet periods, the [Southeast] region has also experienced periods of extreme drying.
- U.S. Global Change Research Program, 2014

The quote above is from the 2014 federal report, Climate Change Impacts in the United States, Southeastern Region. Given the title and the subject, one would have to conclude that our government is telling us that this is a result of climate change.

“Authoritative” documents such as this often wind up in legal proceedings, as the “science” backup for proposed regulations. As such, statements of this ilk should be based upon some semblance of reality.

We find that many of these “factuals” are indeed subject to test. The one above is yet another assertion that climate change, presumably caused by emissions of carbon dioxide, is the cause of an increase in the frequency or severity of “extreme” events.

Floods and droughts qualify. After all, a flood is merely a cases of extreme high streamflow, and a prolonged drought will result an extreme low. Further, it is hard to find any weather extreme, any hurricane, tornado or wildfire where some apparent authority finds a television camera and does not blame it on global warming.

The folly of such claims, however, is easily exposed by long-term data sets that go beyond the instrumental period. Such records reveal the true nature of natural climate variability and invariably show that present-day extreme weather events are in nearly every case eclipsed in frequency and magnitude by events from the historic past. And because such historic events occurred prior to the bulk of societal industrialization and the modern buildup of CO2 in the atmosphere, there is zero chance that those historic events were caused by human emissions of greenhouse gases. Recognizing these facts, as long as current extreme weather events remain within the realm of natural variability observed over the recent historic past, one cannot conclude with any degree of certainty that current extreme weather events have any anthropogenic or human-induced component in them. Stated another way, one simply cannot reject the hypothesis that such events are entirely natural.

Nor is it often very difficult to find data to test whether an assertion is true. With regard to southeastern floods and droughts, the recent study of Harley et al. (2017) is germane.

The storied Suwannee River is the second largest river system in Florida and is the least impacted by human disturbance. There are very good streamflow records beginning in 1927 that reveal multiple periods of flood (high flow) and drought (low flow) superimposed on a long-term linear decline in discharge rate that led to recently recorded low flows. Is it because of dreaded climate change, especially during the period of record low monthly flows observed during 2010 and 2011? According to the authors, this drought produced “widespread negative impacts on the economy and ecology of the basin.”

In order to generate a longer, “proxy” record of streamflow, Harley et al. analyzed new and existing tree-ring chronologies from multiple tree species to produce a reconstruction of March through October Suwannee River discharge for the past 450 years. The method is in principal straightforward, requiring a composite of the tree-ring data be statistically related to the observed streamflow records, and then back-calculating the proxy streamflow prior to the instrumental record.

There are a lot of solid criticisms of the use of tree rings to generate proxy temperatures, mainly because, in many instance, the ring width is a more a function of available water than it is one of temperature. The relation to rainfall is especially strong in an environment like Florida, where warm-season temperatures vary little from year to year.

Results of their analysis are shown in the figure below, which displays an 11-year running mean of standardized river flow anomalies relative to the long-term mean (1550-2005). The most intense and prolonged wet and dry periods did not occur during the instrumental record. Rather, they occurred during the historic past long before humanity increased the CO2 concentration of the atmosphere by any significant amount. What is more, it is interesting to note the “drastic hydroclimatic shift” from extremely dry to extremely wet conditions that occurred naturally around 1860. And as for the cause(s) of the streamflow variability, Harley et al. report finding multiple periodicities in the reconstructed data (2-5, 7, 11, 45 and 85 year bands are statistically significant), which, they suggest, indicate “the important influence of coupled oceanic-atmospheric processes” over the past four-and-a-half centuries.  

Figure 1. Historic streamflow of the Suwannee River based on an 11-year running mean of standardized river flow anomalies relative to the long-term mean (1550-2005). Adapted from Harley et al. (2017).

The take-home message of Harley et al.’s work is summarized in their statements that (1) “we found that instrumental period flow conditions do not adequately capture the full range of variability of the Suwannee River beyond the observational period,” and (2) wet-period “pluvials and droughts that eclipse instrumental events in terms of severity and duration have occurred during the 16-19th centuries,” which latter finding they add is “echoed by other studies of long-term precipitation variability in the Southeast U.S. (e.g., Stahle and Cleaveland, 1992; Cook et al., 2007; Seager et al., 2009).”

Clearly, therefore, based on the material presented in the work of Harley et al., there is no discernible human impact on Suwannee River streamflow over the instrumental record; and there is no compelling reason to conclude that anything other than natural climate variability has contributed to the extreme wet and dry periods observed in this portion of the globe over the past 450 years.



Cook, E.R., Seager, R., Cane, M.A. and Stahle, D.W. 2007. North American drought: reconstructions, causes, and consequences. Earth Science Reviews 81: 93–134.

Harley, G.L., Maxwell, J.T., Larson, E., Grissino-Mayer, H.D., Henderson, J and Huffman, J. 2017. Suwannee River flow variability 1550-2005 CE reconstructed from a multispecies tree-ring network. Journal of Hydrology 544: 438-451.

Seager, R., Tzanova, A. and Nakamura, J. 2009. Drought in the southeastern United States: causes, variability over the last millennium, and the potential for future hydroclimate change. Journal of Climate 22: 5021–5045.

Stahle, D.W. and Cleaveland, M.K. 1992. Reconstruction and analysis of spring rainfall over the southeastern US for the past 1000 years. Bulletin of the American Meteorological Society 73: 1947–1961.


Establishment reporters don’t seem to think that anything good happens in society without a stream of federal money attached to it. That sort of tunnel vision was on display in a recent Washington Post story about the Appalachian Regional Commission (ARC). And it was on display again in the Post today in a story about the National Endowment for the Arts (NEA).

The story discusses NEA projects in Indiana, a state presumably chosen for the same reason that the prior story focused on the ARC and Kentucky: the Post wants to sow dissension in a part of the country that voted for Trump.

NEA-Indiana projects described by the Post include $3,000 for a tunnel made of twisted branches and $10,000 for a sound project that “takes place in multiple spaces and includes a hangout where visitors can listen to records, have a coffee or beer, and will eventually include a low-powered FM radio station.” Numerous NEA grants seem to trickle through state and local governments before being dispensed to local artists and nonprofits, thus creating jobs for paper pushers along the way.

The story warns that the NEA is “under attack.” President Trump “has proposed eliminating the agency altogether.” What a heathen! In Indiana, “artists and nonprofit leaders in small towns or underserved communities fear that lawmakers don’t understand how much they depend on the millions of arts dollars distributed each year outside booming metropolises.”

The NEA’s annual budget is $150 million. Indiana has two percent of the U.S. population, so I would guess that it receives about two percent of NEA funding, or $3 million a year.

If NEA spending in Indiana is important, couldn’t Indiana governments and philanthropists support it? State and local governments in Indiana currently spend $43 billion a year from their own revenue sources. Couldn’t they carve out just $3 million—or 0.007 percent—of that to support local quilters, hoop net makers, puppeteers, and other Indiana craftspeople?

For further reading on the NEA, see here.

Who pays for women’s mandated paid leave and other women-centric labor policies? At a superficial level, it depends on who you ask. Proposals for federal mandated paid leave and child care laws run the gamut, and advocates identify government, taxpayers, or private companies as backers. Unfortunately, those answers reveal a glaring oversight: directly or indirectly, women will pay.

Economists of a variety of ideological persuasions agree, including Larry Summers, former Director of the National Economic Council for President Obama. In 1989, Summers wrote “Some Simple Economics of Mandated Benefits” where he asserted that “The expected cost of mandated benefits is greater for women than it is for men.”

What does that mean? In his paper, Summers concludes that women will be paid less or not hired as a result of mandated benefits. In his words, “If wages could freely adjust, these differences in expected benefit costs would be offset by differences in wages.” And if not? “[T]here will be efficiency consequences as employers seek to hire workers with lower benefit costs.”

In the real world, Summers’ predictions seem to be borne out. Jonathan Gruber, an MIT economist historically unopposed to economic intervention, authored research that “consistently suggest[ed]” women’s wages are reduced to reflect the cost of benefit mandates in states that try them. Gruber estimated that the shift in cost is around “the order of 100 percent.”

And more recent research indicates women “pay” for mandated paid leave and job protections in other ways.[1] According to Jenna Stearns, wage and job entitlements led fewer women to hold management positions and promotion-track jobs in Great Britain. Her research provides “evidence that access to job-protected paid maternity leave can actually exacerbate gender inequality among highly educated workers” [emphasis added].

Although proponents rarely mention it, the U.S. policy status quo holds some counterintuitive advantages. A 2015 study comparing the U.S. against other countries suggests that women in the U.S. are more likely to have full time jobs and work as managers or professionals. That difference is attributed to a lack of maternal wage and job entitlement policies.

Importantly, if the U.S. did move toward paid leave or job entitlements for women, the loss of wages and/or opportunities during childbearing-aged years would not be one-time penalties. Being passed over for a job, involuntarily mommy-tracked, or having wages slashed to pay for prospective benefits can have impacts that last a professional lifetime.

These points aren’t mentioned in the current debate, but they should be. As Summers concludes, “There is no sense in which benefits become ‘free’ just because the government mandates employers offer them to workers.” Intellectual honesty requires we don’t ignore this inconvenient, but important fact: paid leave means women pay.


[1] Additional evidence here

The ongoing controversy and litigation over the Trump administration’s “Muslim ban” has reignited a debate that has raged since the 9/11 attacks: Who commits more domestic terrorism–violent Salafists or traditional “right wing” extremists? According to a Government Accountability Office (GAO) report, it’s the latter and by a very wide margin. From p. 4 of GAO’s report:

Of the 85 violent extremist incidents that resulted in death since September 12, 2001, far right wing violent extremist groups were responsible for 62 (73 percent) while radical Islamist violent extremists were responsible for 23 (27 percent). 

But as researchers at the Georgia State recently reported, media coverage of terrorist incidents makes it seem as if terrorism is almost exclusively perpetrated by Muslims:

We examined news coverage from LexisNexis Academic and for all terrorist attacks in the United States between 2011 and 2015. Controlling for target type, fatalities, and being arrested, attacks by Muslim perpetrators received, on average, 449% more coverage than other attacks. Given the disproportionate quantity of news coverage for these attacks, it is no wonder that people are afraid of the Muslim terrorist. More representative media coverage could help to bring public perception of terrorism in line with reality.

That incident-media reporting disconnect is matched by another: the notion that Arab/Muslim-Americans are more susceptible to radicalization, and thus to becoming terrorists, and that there are a discreet set of reliable indicators that will tell authorities who is or is not more likely to become a terrorist. 

The same month the Georgia State researchers released their terrorism-media bias findings, the Brennan Center released a report on the state of the debate and federal “countering violent extremism” (CVE) programs. Citing dozens of empirical studies and recognized experts in the fields of criminology, psychology, and intelligence, the report states “Extreme or radical views are often assumed to lie at the heart of terrorism. But evidence shows that the overwhelming majority of people who hold radical beliefs do not engage in, nor support, violence.”

With respect to the alleged role of Salafist ideology in motivating domestic acts of terror, the Brennan Center study quotes the FBI’s own assessment on the topic:

It is difficult to quantify the degree to which Islamist materials and ideologues — such as Anwar al-Aulaqi (US Person), Abdullah e-Faisal, and Feiz Muhammed, all of whom appeal to English-speaking audiences — played a part in the radicalization of the persons included in this assessment. … While Internet personalities are often cited as a source of radicalization, factors outside the scope of this assessment — such as social environment and personal psychology (how a person processes both external and internal messaging) — were also influential. 

As for claims that there are a combination of indicators that, if detected early enough, can tell family, friends, or local authorities who may be on the path to terrorism, the Brennan Center report uses the research and conclusions of former CIA officer Marc Sageman to rebut the notion. “…we still do not know what leads people to engage in political violence. Attempts to discern a terrorist ‘profile’ or to model terrorist behavior have failed to yield lasting insights.” 

That hasn’t stopped the FBI, via it’s now-infamous “Don’t Be A Puppet” website, from continuing to peddle the debunked “terrorist profile” concept. And as the Brennan Center report lays out, the FBI is only one of a number of federal, state, or local entities using discredited “terrorist profile” models.

Unfortunately, the Senate and House members who originally requested that GAO look at federal CVE programs–including Senate Homeland Security and Government Affairs Chairman Ron Johnson (R-WI) and ranking member Claire McCaskill (D-MO), along with House Homeland Security Committee ranking member Bennie Thompson (D-MS)–did not ask GAO to evaluate the theories and assumptions underlying federal CVE programs. Accordingly, the audit offers recommendations for tinkering with programs that discriminatorily and disproportionately target the Arab/Muslim-American community on the basis of long-since debunked notions about who and why someone becomes a terrorist. 

House and Senate members need to base federal counterterrorism policies on facts–such as the role U.S. foreign policy in the Arab and Muslim world plays in fueling terrorism. Members of Congress who want to win the war of “hearts and minds” vis a vis ISIS need to remember that our greatest weapon is a strict adherence to constitutional norms of free association and speech, and that targeting fellow citizens of Arab descent or the Muslim faith for evidence-free surveillance and political repression only validates the ISIS narrative that America is at war with the Muslim and Arab world.


CBS reports that President Trump plans to name Congressman Tom Marino (R-PA) to head the Office of National Drug Control Policy, an office colloquially known as the federal government’s “Drug Czar.”

Rep. Marino has a long history of taking a hard line on the drug war. He voted against the Rohrabacher-Farr Amendment that barred the Department of Justice from spending federal funds to prosecute state-legal medicinal marijuana operations. The amendment, which has passed several times with bipartisan support, allows state medical marijuana industries to function without the constant fear of federal prosecution. Rep. Marino also voted to prevent Veterans’ Affairs doctors at facilities in states with legal marijuana from prescribing medical marijuana to their patients.

While the Drug Czar has a limited impact on policy, the appointment of Rep. Marino is another red flag for marijuana reform advocates.

44 states and the District of Columbia allow some form of legal cannabis consumption, including eight states (and D.C.) which have legalized the recreational use of marijuana. The dire predictions of drug warriors in those states have not come true.

As we’ve noted before, Donald Trump campaigned on a relatively moderate platform regarding marijuana legalization, but his choices for key drug policy positions in the administration continue to raise the specter of a federal crackdown on marijuana reform efforts.

Of course the drug war isn’t just about marijuana.  A new Cato policy analysis from Christopher J. Coyne and Abigail R. Hall demonstrates how four decades of a hardline approach to drug policy in America have failed. 

With a growing heroin and opioid epidemic, it’s time to ditch the failed prohibitionist policies of the drug war. Countries like Portugal have successfully abandoned the militarized approach to drug policy; it’s time for the United States to do the same. 

Unfortunately, President Trump appears to be moving in the wrong direction.

President Trump’s Office of Management and Budget (OMB) has released a “Comprehensive Plan for Reforming the Federal Government and Reducing the Federal Civilian Workforce.” The 14-page memo from OMB director Mick Mulvaney creates a process for executive branch leaders to produce a detailed plan to cut the government. The final plan will be included in the fiscal year 2019 budget a year from now.

The core of the process is that the president is requiring federal agencies to prepare Agency Reform Plans by this September, with draft plans due June 30. Agencies must come up with downsizing “proposals in four categories: eliminate activities, restructure or merge, improve organizational efficiency and effectiveness, and workforce management.” Agencies “should focus on fundamental scoping questions (i.e. analyzing whether activities should or should not be performed by the agency).”

Some of the factors that agencies should consider when doing their “fundamental scoping” are whether activities are nonessential, whether they violate federalism, and whether they would flunk a cost-benefit test. Agencies should propose eliminating activities that do not pass muster on these and other criteria.

Director Mulvaney is trying to get federal bureaucracies to reconsider all of their activities in a bottom-up manner. The downsizing process he has launched will include actions that the president and agencies can take administratively, and reforms that will need legislation passed by Congress.

Aside from pushing agencies to identify savings, the OMB will work over the next year to propose and implement crosscutting reforms that affect all agencies. One theme in the memo is the need to cut the federal civilian workforce. The memo encourages agencies to implement near-term cuts and to develop plans to reduce workforces over the next four years. The memo is right that “technology may have changed or eliminated the need for some positions.”

The memo provides a good framework for pursuing federal downsizing. Some agencies will probably drag their heels and try to include just minor-league reforms in their plans. But the OMB will be overseeing the development of the plans, and will hound agencies to think big. It will also be important for the administration to fill top positions in agencies with leaders who have a zeal for cutting.

Support from congressional Republicans is also needed. The reform effort will be undermined if members simply whine and grumble when the administration suggests trims to their favored programs. When Trump’s “skinny budget” was released in March, the response of Senate Majority Leader Mitch McConnell was to announce that he would not allow cuts to an obscure $120 million pork barrel program that favors his state. But if the party leader selfishly rejects such a tiny cut, how does he expect any other member to accept cuts to any of the programs they favor?

If the Trump-Mulvaney budget reform effort is to be successful, we are going to need congressional leaders to act as actual leaders. And that means putting the broad public interest in spending control ahead of narrow parochial interests.

Mick Mulvaney’s press briefing on the new plan is here.  

For comments on previous OMB reform actions, see here, here, here, and here.

Although it has gained many converts since 2008, thanks especially to tireless crusading on its behalf by Scott Sumner, David Beckworth, and Lars Christensen, among other “Market Monetarists,” the suggestion that the Fed ought to stabilize, not the inflation rate, or employment, but the growth rate of overall spending on goods and services, still strikes many people as odd, if not positively barmy.

Being, as it were, a sort of Market Monetarist avant le letter  (for I first came to regard a stable level of overall spending as the sine qua none of a sound monetary regime while writing my dissertation ages ago), I naturally find the monetary policy credos of bona fide Market Monetarists as incontestably appealing as apple pie and baseball are to most full-blooded Americans.

My particular understanding of the case for stable spending is, nonetheless, mine alone, and as such somewhat distinct from that of my Market Monetarist brethren. So I thought I might venture, with all due humility, to try my hand at conveying that understanding to those curious but skeptical unbelievers among my cherished readers, by way of an imaginary exchange of questions and answers, where the questions are the unbelievers’, and the answers are my own.


What exactly do you mean by “overall spending on goods and services”?

I mean the total quantity of money — of dollars, in our case — that consumers hand over to sellers in exchange for finished or “final” goods and services (as opposed to intermediate goods or factors of production) over the course of some definite period of time.

The most  popular measure of such spending is called “Nominal Gross Domestic Product,” or Nominal GDP, which according to the IMF “measures the monetary value of final goods and services — that is, those that are bought by the final user — produced in a country in a given period of time (say a quarter or a year).” For 2016, total U.S. Nominal GDP was about $18.9 trillion, which was just under 3.6 percent higher than its level in 2015.

Strictly speaking, Nominal GDP measures the value of goods and services produced, rather than goods and services actually sold to consumers: the difference consists of changes to firms’ inventories. A different statistic, “Final Sales to Domestic Purchasers,” distinguishes actual sales from output. Final sales for 2016, at over $19.36 trillion, exceeded Nominal GDP, which means that firms’ inventories were declining. The year-over-year growth rate of final sales, at 3.64 percent, was also slightly higher than that of Nominal GDP.

Why is it desirable that spending should be kept stable?

Because a stable level of overall spending, meaning in practice a level that grows at a modest and steady rate, helps to avoid recessions on one hand and unsustainable booms on the other.

What exactly do you mean by “recession”?

I mean a circumstance in which businesses as a whole are losing money — that is, taking in less than they spent, allowing for a “normal” return such as they might have earned by just investing the same amount in safe bonds. Alternatively, if you will allow me to oversimplify a bit for the sake of brevity, one might say that during a recession the “average” firm is losing money.

OK, I can see what you mean by that. But then, is the fact that a firm loses money necessarily to be regretted? Surely some firms ought to go out of business, or at least to cut back on it!

Of course some should! And that’s not necessarily a problem. So long as the losses of some firms are matched by the extraordinary profits of others, there needn’t be any unemployment, either of labor or of other resources. Instead, if the pattern persists, resources will move from the losing to the gaining businesses. And that’s just what has to happen if there’s to be as little waste as possible.

If, on the other hand, spending as a whole shrinks, there are more unprofitable firms that have to  dispense with workers than profitable ones seeking to hire more of them.

So the monetary authority would be justified in allowing the money stock to increase in the case where spending will shrink otherwise, but not to help firms that are in trouble despite stable spending growth?

That’s correct. Resorting to money creation to help particular firms or industries, when the “average” firm isn’t in trouble, only serves, first, to delay desirable changes in how inputs (the materials and labor businesses bring together in assembling their products) are employed and, eventually, to raise the prices of both those scarce inputs themselves and the product made using them.

But then why worry if the “average” firm loses money?

I repeat: for that to happen, it must be the case that the receipts of industry taken as a whole fall short of its expenses, or of its expenses plus a normal profit. In that case, few if any firms are inclined to hire more workers and to otherwise expand production, while others must curtail production and lay off workers. That spells general unemployment, that is, a recession.

Why should more money creation be useful in this case?

A decline in the “average” firm’s revenues can only happen if people are spending less on goods and services, that is, if they decide to hold more money. Some expansion of the money supply can serve to make up for that extra demand for money, reviving spending just enough to make our average firm break even again. Individual firms might still fail; but then others would prosper. So long as total spending by the public on goods and services is stable, or increasing at a modest rate, firms as a whole — hence the average firm — can’t be losing money.

So all that’s needed to avoid hard times is to keep money flowing?

Whoa! Not so fast.  What I’m saying is that so long as there’s no decline in overall spending, either absolutely or relative to some modest growth rate, there won’t be recessions. But there can still be hard times: production could suffer because of wars, or bad harvests, or trade embargoes, or all sorts of other bad things. In economists’ lingo, there might be “negative supply shocks.” But there’s nothing central bankers can do about them — indeed, no monetary system of any sort can do anything about them. Nothing that’s likely to help, anyway.

OK. So suppose they just stick to worrying about spending. How can the authorities know whether they are allowing for sufficient money growth, that is, whether monetary policy is or isn’t sufficiently “easy”? Must they keep track of how many firms fail?


Of course not! They just have to keep track of total spending itself.  To do that, they can look at the statistics like Nominal GDP, or Final Sales to Domestic Consumers.

Sounds easy!

Well, don’t get the wrong idea. It’s still a tricky business. Those spending statistics don’t come out very often. They also tend to get revised. So there’s plenty of guesswork involved, and corresponding room for mistakes. But the principle is still sound— and even allowing for mistakes, a monetary policy that’s based on wrong principles is bound to be worse.

OK. I get the idea that too little spending can be bad news. But can there really be such a thing as too much spending as well?

There sure can be! Just as too little spending means that the average firm suffers a loss, too much means that the average firm is making extraordinary profits, meaning profits well beyond what it needs to stay in business.

Is that bad?

It is, because it must lead to inflation in the long run — or an inflation of input prices at any rate — and may result in an unsustainable price boom in the short run.

How does too much spending cause a boom?

As I said, excessive spending causes the average firm, or firms as a whole, to enjoy extraordinary profits, at least for a time. Stock prices reflect firms’ expected profitability, so it’s natural for stock prices to rise when profits themselves rise unexpectedly, as will tend to happen if spending on goods and services itself accelerates unexpectedly.

And why should the boom not be sustainable?

Because, when firms are enjoying extraordinary profits, they endeavor to acquire more inputs so as to expand production. But when all, or most, firms are trying to do this, they only succeed in bidding-up input prices, because in normal times there are only so many inputs to go around. As input prices go up, so do firms’ unit production costs. Their once extraordinary profits therefore cease to be so. When word of this hits the street, stock prices go back down as well.

O.K., I see why too much spending can cause an unsustainable boom. So, does that mean that the monetary authorities need to look out for such booms so as to put a stop to them?

Not at all! Monetary authorities are no better at telling whether a boom is sustainable or not than ordinary investors. If anything, they tend to be worse, in part because they have less to lose if they’re wrong.

So what should the authorities do to prevent unsustainable booms?

I’ve already told you: they need only pay attention to total spending, that is, nominal GDP or some similar measure, making sure that it isn’t growing too rapidly. So long as it doesn’t, there won’t be any unsustainable booms — at least, none for which monetary policy is to blame.

But how rapidly is “too rapidly”?

Now there’s a good question! There’s room for expert disagreement on this point, but the disagreements aren’t dramatic ones. Some would have spending grow enough to result in an average inflation rate of 2 percent, which is the rate most monetary authorities favor. That means letting spending grow at a rate equal to the economy’s long-run real growth rate, plus another two percentage points, or at around 4-5 percent per year.

Yours truly, on the other hand, has argued that the most stable arrangement is one that lets spending grow only enough to compensate for growth in the economy’s workforce and capital stock, which in the U.S. today would mean having it grow at a rate of 2 or 3 percent per year. Since having spending grow at a steady rate means letting the inflation rate mirror the rate at which the economy’s overall productivity improves, such a modest rate of spending growth would actually result in mild deflation much of the time. Since the deflation would reflect falling production costs, it wouldn’t be a bad thing.

Of course there are those who hold other views, most of which (though not all) lie somewhere between the two I’ve just described.

Hmm. You are starting to get fancy. Why not just have the monetary authorities target a particular rate of inflation, or, if one prefers, deflation, instead of targeting spending?

Because stable spending is what’s required to keep firms from either generally losing money or generally enjoying unsustainable profits. A stable inflation (or deflation) rate isn’t generally consistent with that outcome.

Why not?

Because an economy’s inflation rate depends on two things. The first is how much people spend. The second is how many real goods and services firms are able to supply using the inputs they buy. If the rate of growth of spending is itself stable, the inflation can still vary as productivity (the output produced from any given amount of inputs) varies. So long as productivity fluctuates, a stable flow of spending requires a fluctuating rate of inflation. Keeping inflation stable, on the other hand, would mean letting spending fluctuate. And we’ve already seen that fluctuations in spending aren’t consistent with avoiding unsustainable booms and busts.

I suppose. But just how much harm could possibly come from, say, sticking to a constant rate of inflation?

Plenty, actually. Let me give you a for instance.  Remember what I said about negative supply shocks — you know,  wars and bad harvests and all that?

Yeah, sure. Causes of hard times that monetary policy can’t fix.

Exactly! But while no monetary policy or regime can undo the harm done by a negative supply shock, the wrong sort of policy can make things worse. Suppose, for example, that a country becomes the victim of a blockade. Because fewer goods are available, people are bound to be worse off.  If spending stays stable, the shortage of goods will also mean higher prices all around.

Right! So why not at least take steps to prevent the inflation? People are already suffering enough!

No, no no!  You’ve got it all wrong. The inflation in this case is just a reflection of the fact that goods are scarcer than usual. The economy is only suffering from one “bad” thing — not two! Suppose the authorities decided to “do something” about the inflation. What would it be? The answer is that they’d have to tighten money, and limit spending, to keep prices from going up. In other words, to make up for the greater scarcity of goods, they’d be making money more scarce as well! So instead of just finding that their incomes don’t buy as many goods as before, now people get fewer goods and less income to buy them with!

So stable spending really does beat stable inflation. You know, I think I’m starting to get it! 

Kudos to you!

But you still haven’t explained which view regarding just how quickly spending ought to grow is the correct one.

That’s true. But really, the actual spending growth rate matters a lot less than having spending grow at some steady and predictable rate. For once people and businesses become accustomed to that rate, the mere fact that they know and can predict it will suffice to rule out serious business cycles, at least so far as monetary policy can do that. So why don’t we leave it at that for now. Getting people to see why responsible monetary policy is fundamentally about keeping spending stable is hard enough as it is, without trying to convince them that a spending growth rate of 4 percent is a whole lot better than one of 2 percent!

O.K., I get that. But all this talk about the right monetary “policy” makes me uncomfortable. Why entrust the management of money to a bunch of bureaucrats in the first place?

Congratulations! By asking that intelligent question, you have earned a place at the head of the class!

The truth is that, so long as we rely on discretion-wielding central bankers to manage national money stocks, we’re unlikely to witness the sort of stable spending that I believe is most consistent with overall macroeconomic stability. There are all sorts of reasons for that, some stemming from political pressures, others having their source in central bankers’ limited knowledge.

I personally think we can do better. One option is to impose a monetary rule or mandate or both giving central bankers no option save that of maintaining a stable flow of spending. That would at least stop them from undermining stability by pursuing other goals. But I believe we can do better than that, by reproducing some features of the remarkably stable “free banking” systems that blossomed in several places in the past, and especially those features of free banking systems that served to automatically stabilize spending. For the time being, though, we are stuck with monetary systems to which bureaucrats hold the reins, so we must do whatever we can to make the best of a bad bargain.

In any event, whatever monetary system one prefers, it remains the case that, if that system is to work reasonably well — if it’s going to manage money better than central bankers have — it will have succeeded somehow in achieving and maintaining a stable flow of spending.

[Cross-posted from]


Last week, The Washington Post reported an “administration official” indicated the Trump White House was considering a new tax on carbon dioxide emissions. This seems incredible for a number of reasons.

It’s never a good time to champion a brand new tax, and recent science developments make it seem an especially bad one. A year ago lower atmospheric temperatures peaked with the big (and natural) El Niño. This temporarily wiped out the recent “pause” in warming that shows up in so many records. But now those temperatures are in rapid decline, with the March satellite readings back down to their pre- El Niño values. If they stay in that range for several months, the pause will be back.

If that happens, there will be no net lower atmospheric warming all the way back to 1994—almost a quarter of a century ago.

Even without another hiatus in warming, the disparity between forecast and observed warming will continue to grow.

People are now beginning to realize that there are other problems with the computer models with serious climate implications. There is a big one lurking in the bottom 50,000 feet of our atmosphere. These models all predict that the upper portion of this zone in the tropics should be warming even more than the surface. But the “tropical hot spot” simply refuses to show, as pointed out last month by University of Alabama’s John Christy, in testimony before the House Science Committee.

Observed (green) and predicted (red) warming rates from near the surface (bottom of chart) the stratosphere (above the top data point). The difference between predicted and observed changes in the high altitudes are in the range of an entire order of magnitude. The weather implications are discussed in this post. 

This is no mere arcane detail. The vertical distribution of temperature is the main cause of tropical rainfall. When the difference between the surface and upper layers is large, the surface air is more buoyant, and rain-producing clouds arc skyward. If the difference is less (as has been erroneously forecast), the opposite occurs, and rainfall is suppressed. Maintained over time, this is the difference between the tropical rainforest, the most diverse ecosystem on earth, and scrubland, savannah, or even a semidesert.

This cascades into another host of errors. Daytime desert temperatures are really hot, often exceeding 120⁰F. In such a dry environment, there’s little moisture to absorb the sun’s rays, and surface temperatures skyrocket. But in a tropical rainforest region, like Manaus, Brazil, near the equator, high temperatures in the hottest month average only around 90⁰.   

We are now beginning to realize the likely reason these models are making such humongous errors. As noted in a paper just published in The Bulletin of the American Meteorological Society the climate models have all been “tuned” to give the “right” answer for 20th century climate change, but doing so may have created grave errors in the ultimate forecast products.

The sum-total of all of this science news means that climate gloom-and-doom has been dramatically overforecast. It’s just not a good scientific time to bring up a carbon tax. 

I’m beginning to understand why Cato’s Michael Cannon is frequently found tearing his hair out over Politifact, the Tampa Bay Times project ostensibly devoted to “sorting out the truth in politics.” When I look at how badly they’ve botched issues involving constitutional war powers, I feel his pain.

On Friday, the fact-checking organization weighed in on the legal debate over President Trump’s April 6 bombing of a Syrian airfield, with two essays concluding it was A-OK, constitutionally. “In some cases, people saying Trump needed congressional approval have gone too far” Politifact’s Lauren Carroll pronounces. For instance, Rep. Marc Pocan’s (D-WI) claim that there’s “no legal basis” for the strikes rates a full-on, needle-in-the-red “FALSE” on P-fact’s patented “Truth-o-Meter.” Tom Kertscher of Politifact Wisconsin asserts that: “For limited military activities like the missile strike, presidents can send in forces without approval from Congress.” You see, while the president may not have the legal authority to unilaterally launch a full-scale war, he can—if he thinks it’s a good idea, and assures himself it won’t bog us down—order up acts of war that don’t rise to the level of war: a light dusting of cruise missiles—a micro-aggression, constitutionally speaking.

What’s the legal basis for that? Politifact takes nearly 2,000 words to explain it all to you, but their answers are pretty thin: 1. Maybe the commander-in-chief clause?; 2. Other presidents have gotten away with stuff like this in the past; 3. Their lawyers say it’s ok; and 4. the 1973 War Powers Resolution “creates a process to act first and ask for permission later.” I rate those claims 1. False; 2. Irrelevant; 3. Nice try; and 4. Pants on Fire. 

Per Kertscher, “Experts agree that in limited instances, such as the Syrian missile attack, a president has legal authority provided in the Constitution as commander-in-chief.” But that clause, as Hamilton explained in Federalist 69, merely makes the president “first General and admiral” of US military forces, and does not extend “to the DECLARING of war.” And “experts” who believe it empowers the president to launch sudden attacks in the absence of an imminent threat are in the minority. Over at the Lawfare blog, Fordham’s Andrew Kent sums up the legal consensus: “at the core of the question—under the original meaning of the Constitution, who has the power to decide to initiate foreign war, the president or Congress?,” he writes, “the weight of evidence now tilts so strongly toward one view that the debate should be considered over. Under the best reading of the original understanding of constitutional war powers, President Trump’s strike on Syria was patently unconstitutional.”

That the strike was “limited,” and not the opening salvo in a full-scale war doesn’t make a constitutional difference. If it did, leading war powers scholar Michael Ramsey asks, then “why did virtually everyone in the immediate post-ratification era think that limited naval warfare, as against France in the Quasi-War, required Congress’ approval?” That included the bellicose, pro-executive Hamilton, who acknowledged that for President Adams to go beyond defensive acts protecting American shipping would “fall under the idea of reprisals & requires the sanction of that Department which is to declare or make war.” Our first president even doubted his authority to take unilateral action against hostile Indian tribes, writing that “The Constitution vests the power of declaring war with Congress; therefore no offensive expedition of importance can be undertaken until after they shall have deliberated upon the subject, and authorized such a measure.”

As Politifact notes, modern presidential practice isn’t nearly so restrained: in the modern era, “presidents have generally initiated military activities using their constitutionally granted powers as commander in chief.” But the fact that they’ve mostly gotten away with unilateral warmaking says nothing about whether those powers were in fact “constitutionally granted.” A long train of abuses is just that–it doesn’t add up to a constitutional “common law of bombing.” As George Washington Law School’s Jonathan Turley has noted, the notion that misbehavior or negligence by the political branches alters the meaning of the constitutional text “would be viewed as wildly improper in other areas like police abuse under the Fourth Amendment or censorship under the First Amendment.” Erosion of the Constitution’s war powers provisions should be viewed the same way. At the Pennsylvania ratifying convention in 1787, James Wilson summed up the logic behind the constitutional war powers framework: “This system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large.” In the 21st century, “limited” military strikes violate that understanding, overturn that system, and raise the risk of “distress” beyond even the Framers’ fears

Still, Politifact argues that Trump:

“might be able to find precedent in the Obama administration’s legal justification for the 2011 U.S. intervention in Libya. The White House Office of Legal Counsel determined then that it would be consistent with the Constitution and the War Powers Resolution for Obama to take military action in Libya because it served the “national interest.” Also, the operation was intended to have a limited scope and short duration, as opposed to a full-on war.”

But legal memoranda from “the President’s Law Firm” aren’t “precedent” in the sense we usually mean: rulings from an independent branch. They’re too often, as in this case, post-hoc rationalizations for what the CINC has already decided to do, Congress be damned. Even so, OLC’s Libya memo offers poor “precedent” for a punitive strike on Syria for chemical weapons use, as Obama himself seemed to recognize when contemplating such an attack in 2013. As Charlie Savage writes in Power Wars: Inside Obama’s Post-9/11 Presidency“Obama was proposing something unprecedented—an attack on the sovereign soil of another country for the purpose of punishing an alleged war crime that had already taken place rather than to prevent an imminent atrocity; a strike without United Nations permission, without a self-defense claim, and without even the multilateral NATO alliance” at the United States’ side. That’s one reason Obama decided to go to Congress instead of further “stretch[ing] the boundaries of his authority.” 

Finally, Politifact argues that “Even under the War Powers Resolution, the president can send in forces without approval from Congress,” citing its earlier, botched “fact-check” on the 2013 “red-line” affair, in which a Politifact analyst argued that “the War Powers Resolution creates a process to act first and ask for permission later.”

No it doesn’t. Read it. The WPR makes clear that the president’s unilateral powers are limited to defensive uses of force. Sec. 2(c):

The constitutional powers of the President as Commander-in-Chief to introduce United States Armed Forces into hostilities… are exercised only pursuant to (1) a declaration of war, (2) specific statutory authorization, or (3) a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.

Moreover, the text underscores that the WPR doesn’t purport to add anything to the constitutional powers of the president. Sec. 8(d)2: 

Nothing in this joint resolution…. shall be construed as granting any authority to the President with respect to the introduction of United States Armed Forces into hostilities … which authority he would not have had in the absence of this joint resolution.

The 60-day “free pass” is, like most of our war powers problems, the product of presidential aggrandizement and congressional fecklessness–it’s not in the law.

I shudder to think that Google and Facebook have partnered with Politifact to sort out “fake news” from the genuine article. If this kind of work is any indication, they’re not up to the task. 

The United States’ immigration system favors family members over workers.  About two-thirds of all green cards issued annually are to immigrants whose qualification for being here is their relationship to American citizens or other green card holders.  This is in contrast to countries with so-called merit-based immigration systems that favor skilled immigrants, such as Australia and Canada.  Only 24 percent and 31 percent of annual immigrants to those two countries, respectively, gained permanent status through family connections.  Comparing the composition of the immigrant flow obscures important differences in immigration policy: Canada and Australia allow in many more immigrants than the United States does as a percentage of the population.

The United States allows in about a million lawful permanent residents a year, the largest number of any country, but that is a small percentage of the almost 325 million people who already live in the United States – about 0.3 percent annually.  By comparison, Australia Canada each allow in about 250,000 immigrants a year but they are much smaller countries with about 23 million and 35 million residents, respectively.  Thus, as a percentage of their populations, the annual inflow of immigrants into Canada and Australia is significantly larger than in the United States.  The annual number of immigrants to Australia is equal to 1.1 percent of the Australian population while the annual number to Canada is equal to about 0.7 percent of the Canadian population, which makes them 3.5 and 2.4 times as open to immigration as the United States, respectively (Figure 1).  If the United States were to copy Australia or Canada’s merit-based immigration policies, our government would admit about 2.3 million to 3.5 million immigrants annually.     

Figure 1

Immigrant Inflow as a Percent of Population, 2013


Sources: OECD, EuroStat, E-Stat, Citizenship and Immigration Canada

The greater number of immigrants to Australia and Canada hides an important fact about the immigrant inflow to those nations: Annual family admissions in Australia and Canada are greater than in the United States, as a percentage of the population of those countries (Figure 2).  Annual family-based immigrants to Australia and Canada are equal to 0.26 percent and 0.23 percent of their populations, respectively, compared to 0.21 percent in the United States.  This is purely the result of Australia and Canada allowing a greater number of immigrants as a percentage of their populations.      

Figure 2

Immigrant Family Inflow as a Percent of the Population, 2013

Sources: OECD, EuroStat, E-Stat, Citizenship and Immigration Canada

There are significant differences in the family flow in each country.  Canadian and Australian family-based immigrants are almost entirely the immediate family members of citizens or other immigrants while many in the United States are adult children and siblings of U.S. citizens and green card holders. 

Another difference is that the U.S. system creates family-based chains that increase future immigration in an unpredictable way relative to the Australian and Canadian system.  More distantly related relatives are less likely to be similar to the original skilled immigrant than immediate relatives.  Although the initial immigrant from a family is a skilled worker, his brother’s wife’s sibling, who could be admitted many years after the initial immigrant in the chain, is less likely to be so.  However, immigrants admitted through family categories are still a greater percentage of their destination country’s population in merit-based systems of Australia and Canada than in the United States.    

The biggest and most persistent difference between Australia and Canada and the United States is the number of workers admitted annually.  As a percentage of all annual immigrant flows, workers are 24 percent for Australia, 25 percent for Canada, and 8 percent for the United States.  Those percentages undercount workers in Australia and Canada because the OECD counts substantial regional immigration programs in both countries as “other” rather than “workers.”  As a percent of the native workforces, Australia and Canada respectively allow in 12 times and 7.5 times as many worker immigrants annually as the United States (Figure 3).  The multiples are similar when compared to the total population (Figure 3).  American complaints about immigrant workers on green cards taking American jobs seem silly in light of the fact that their annual flow is equal to about 0.04 percent of the native worker population.  There’s no excuse for admitting so few skilled immigrant workers on green cards.        

Figure 3

Immigrant Worker as a Percent of the Native Workforce and the Native Population, 2013


Sources: OECD, EuroStat, E-Stat, Citizenship and Immigration Canada

The family-based immigration system is under pressure and Congress will likely restrict it in future reform bills, even if Congress expands the worker or skilled categories.  A common argument in favor of restricting family immigration is that the U.S. allows more family-based immigrants than any country with merit-based immigration systems.  While this is true when looking at the share of family-based immigrants in the annual flow, it is untrue when looking at family-based immigrants as a percentage of the population in destination countries.  The latter matters more when evaluating the impact of immigrants on our society and economy.

This week marks the 65th anniversary of what was to become a turning point in constitutional history, President Harry S. Truman’s order seizing the nation’s steel mills during a labor dispute. Allen Pusey has an article on the episode at the ABA Journal

The case was to result in the Supreme Court’s 6-3 decision later the same year in Youngstown Sheet & Tube v. Sawyer, rebuking Truman for his lawless action. It was one of American history’s key wins for the successful assertion of a Constitutional rule of law that binds the executive branch as against claims of inherent emergency power.

But Truman’s audacious behavior was itself based on the adventures in Caesarism of earlier presidents going back at least to Woodrow Wilson, and especially those of his immediate predecessor, Franklin D. Roosevelt. Among other wartime acts of seizure defended on national security rationales, Roosevelt had sent in armed troops on Dec. 27, 1944 to seize (on grounds of defiance of war labor advisories) the Chicago-based catalog and retail company Montgomery Ward. Known for its clothes and household items, Montgomery Ward was almost no one’s idea of a vital war industry. But its head, businessman Sewell Avery, had made himself a leading thorn in FDR’s side in opposition to the President’s New Deal policies. A famous photo showed Sewell Avery being carried bodily out on the street by military men while sitting in his executive chair. 

Truman’s lawyers pointed to the various earlier seizures to back their view that a President simply must possess such powers as chief executive and commander in chief, certainly in wartime. (The Korean War was in progress.) Pusey: 

…the government pressed the issue of constitutional authority. Before an astonished federal judge, lawyers argued that a president has unlimited power in a national crisis and the power to define that crisis. That executive authority had been ratified, they said, by decades of judicial silence on the matter.  

Judge David A. Pine’s ruling was blunt: “Apparently, according to [the government’s] theory, several repetitive, unchallenged, illegal acts sanctify those committed thereafter. I disagree.”

When the case reached the high court, it was the concurrence by Justice Robert Jackson – himself a New Dealer – that was to go echoing down as one of the Court’s great pronouncements: 

The example of such unlimited executive power that must have most impressed the forefathers was the prerogative exercised by George III, and the description of its evils in the Declaration of Independence leads me to doubt that they were creating their new Executive in his image. Continental European examples were no more appealing. And if we seek instruction from our own times, we can match it only from the executive powers in those governments we disparagingly describe as totalitarian. I cannot accept the view that this clause is a grant in bulk of all conceivable executive power… 

This is a story that could easily have had an unhappy ending. Truman apparently expected to win the showdown, and the Court itself was full of New Dealers, many of whom had shown much deference to the government. Instead, the steel seizure cases came to stand as a milestone in constitutional law, making clear that claims of emergency, even in wartime, do not justify whatever assertions of arbitrary power a President may care to make. That’s worth celebrating these many years later. 

California law generally bans the possession of a gun within a school zone. For many years, however, both retired peace officers and those with a license to carry concealed weapons were exempted from this ban. Then in 2015, a bill was proposed that would have eliminated both of these exceptions. But after extensive lobbying by interest groups aligned with federal workers and police officers, the bill was amended to remove only the exception for concealed-carry licensees.

Dr. Ulises Garcia is one such license holder, who obtained his license after receiving threats against himself from a former patient. After the change in the law, Garcia can no longer carry his weapon for protection when attending school events with his family. Garcia and a group of other plaintiffs have sued, arguing that the differing treatment afforded to retired peace officers and concealed-carry license holders violates the Fourteenth Amendment’s guarantee of the equal protection of the laws. The federal district court rejected their claims, and they have now appealed to the U.S. Court of Appeals for the Ninth Circuit. Cato has filed an amicus brief supporting Garcia and urging that the district court be reversed.

In rejecting Garcia’s equal-protection arguments, the district court fundamentally erred in its application of an important Supreme Court test. Legislation that treats two groups unequally must be struck down if the enacting legislature was motivated by an impermissible purpose. This includes enacting a law solely to harm a politically unpopular group at the expense of a popular and powerful one. Yet despite plenty of evidence that this is exactly what occurred here, the district judge dismissed the “improper motivation” claim in a single paragraph, writing that the court could not find evidence of bad motives in the “legislative history of the Act” and that it could not rule for Garcia without “evidence of explicit legislative intent to cause harm to civilian gun owners.”

This approach dangerously narrows the universe of evidence that judges must examine to determine legislative motivation. As we explain in our brief, the Supreme Court has consistently examined all available evidence in this search, not just the narrow record produced by legislative history. Relying only on floor statements and committee reports, as the district court did, would allow legislators to easily hide their true motivations by simply holding their tongues. Actions speak louder than words, and in this case the actions of the law itself are evidence that its true motivation could not have been good-faith policy concerns.

When the Ninth Circuit hears Garcia v. Becerra later this spring, it should apply the correct test, examine all available evidence, and strike down this unequal treatment of a politically unpopular group.

Rep. Ted Yoho (R-FL) and 11 co-sponsors recently introduced House Concurrent Resolution 40. It expresses the perfectly laudable “sense of Congress that all direct and indirect subsidies that benefit the production or export of sugar by all major sugar producing and consuming countries should be eliminated.” Things go downhill from there.

The resolution conveniently lists the trade-distorting sugar policies of Brazil, India, Thailand, the European Union, and Mexico, while neglecting to mention U.S. tariff-rate quotas (TRQs) and domestic price supports. The president is encouraged to “seek elimination of all direct and indirect subsidies benefiting the production or export of sugar” in foreign countries. Once the president has accomplished this objective and submits a report to Congress detailing how other countries have eliminated their trade-distorting measures, then he “should propose to Congress legislation to implement United States sugar policy reforms.” 

In essence this means, “Once other countries have given up all policies that favor their sugar growers, let us know and we’ll think about whether we should change ours.” Not exactly demonstrating robust U.S. leadership on trade, is it? 

The American Sugar Alliance (ASA), which represents domestic sugar growers and processors, is a strong supporter of the policy status quo. It serves their interests reasonably well. Or, at least it accomplishes the transfer of a lot of money from U.S. consumers to U.S. sugar producers. Not surprisingly, ASA likes Rep. Yoho’s approach to “reform.” ASA can express full support for this version of zero-for-zero knowing full well that it will never happen. 

An ASA statement praising the resolution laments that “Sugar producers … are also struggling with U.S. sugar prices that are currently as low as they were in the 1980s.” That statement may be technically correct because in the early 1980s sugar prices peaked much higher than today’s levels. What it doesn’t say, though, is that U.S. sugar prices have been in a long-term uptrend since 2013 and now are in the neighborhood of 30 cents per pound for raw cane sugar – well above the U.S. loan rate (support price) of 18.75 cents. 

The statement goes on to say, “Jack Pettus, ASA’s chairman, said new technology and strong business practices have made U.S. producers among the world’s most efficient. They are ready to compete on a level international playing field that is subsidy free.” If Pettus had stopped before adding the words, “that is subsidy free,” he and I would be in complete agreement. As I wrote two years ago in the paper, “Toward Free Trade in Sugar,” the U.S. industry is among the world’s most efficient. Based on an analysis published in the May 15, 2014, edition (pages 17-33) of the USDA/ERS publication, Sugar and Sweeteners Outlook, U.S. sugar producers could compete effectively even without the current system of import restrictions and domestic price supports. 

The Sugar and Sweeteners Outlook article addresses relative costs of production across the world’s major sugar-producing regions. If that study doesn’t by itself persuade that the U.S. industry no longer needs protection from imports, consider this additional evidence: Canadian farmers grow sugar beets solely on the basis of earnings from the marketplace. The Canadian government provides no import restrictions or other forms of income assistance. If Canada can produce sugar without subsidies, why can’t the United States?

Instead of pussyfooting around and giving lip service to sugar policy liberalization, the United States should show genuine leadership. The best way to do so would be to end U.S. import restrictions and domestic supports unilaterally. That would not only create quite a constructive stir in the global sugar community, it also would give the United States a great deal of moral authority to request similar actions by other countries. 

Unilateral reform would serve the best interests of the United States. The economic welfare of a country always rises when trade restrictions are reduced or eliminated–gains to consumers exceed any losses to producers. The sugar program’s rigid market-control mechanisms prevent free movement of sugar prices in response to supply and demand. That rigidity causes resources to be used inefficiently and inflicts large deadweight losses on the U.S. economy.

After cleaning up its own policy mess, the United States would be in a strong position to encourage reform overseas. There’s nothing like walking the walk to build negotiating credibility. 

Instead of offering zero policy reforms and getting zero back, it’s time for the United States to demonstrate leadership by ending its sugar market distortions unilaterally. That’s the best way to encourage other countries to do the same.  

During his campaign, President Trump said that he wanted drones to patrol the border 24/7. Customs and Border Protection (CBP), a Department of Homeland Security (DHS) agency, has used drones originally designed for foreign battlefields in order to conduct border surveillance, although these efforts have hardly been efficient. Federal solicitation documents reveal that DHS is looking to smaller drones with facial recognition capabilities. This ought to concern Americans who value civil liberties.

Before unpacking why plans for CBP facial recognition drones are disquieting, it’s worth outlining what kind of capabilities DHS is looking for.

The solicitation notice states the following:

This OTS [Other Transaction Solicitation] call seeks novel sUAS [small unmanned aerial system] capabilities and technologies to augment CBP and USBP [U.S. Border Patrol] mission capabilities. In particular, DHS is interested in technologies and solutions that support USBP agent activities, including enhanced overall situational awareness or support during distinct events, such as detection, tracking, interdiction, and apprehension, and search and rescue (SAR) operations. USBP agents operate day and night in diverse and extreme environments across thousands of miles of the nation’s international land borders and coastal waters. Agents must patrol remote areas, often with significantly limited mobility, visibility and communications. Additionally, agents are often required to traverse rough terrain on foot while carrying large amounts of equipment and, with limited intelligence and support, resolve encounters with unknown and potentially hostile actors. DHS seeks sUAS solutions that can augment USBP capabilities in such conditions.

Because of the “very positive/robust response” to this solicitation, DHS is closing the OTS call early, with an April 27th deadline now in place.

The solicitation lists required sensor capabilities for the drones, including, “Provides a surveillance range of 3 miles (objective),” “Able to track multiple targets persistently,” and “Identification of humans via facial recognition or other biometric at range.”

Later on, the same document notes:

the sensor technology would have facial recognition capabilities that allow it cross-reference any persons identified with relevant law enforcement databases. The data gathered via the sensors would provide information to USBP agents including the presence and extent of potential threats and support the ability of the agent to determine an appropriate response.

If you’re an American adult reading this there is a good chance that your facial image is in one of these “relevant law enforcement databases.” A 2016 report published by Georgetown Law’s Center on Privacy and Technology revealed: “One in two American adults is in a law enforcement face recognition network.” A Government Accountability Office report from last year found that the Federal Bureau of Investigation’s facial recognition system has access to more than 411 million facial images, including the driver’s license photos from sixteen states.

When considering CBP’s activities we shouldn’t only be thinking about America’s land borders. Current law allows CBP officials to stop and search vehicles within 100 miles of America’s external boundary in order to prevent illegal immigration. Roughly two-thirds of Americans live in this so-called “Constitution-free” zone. Although DHS’ solicitation mentions facial recognition drones being used as part of border patrol we should be prepared for them to make appearances at interior checkpoints as well as at ports of entry.

CBP and other federal law enforcement agencies using facial recognition tools should only be able to access facial images related to wanted persons and those with a history of violent crime. Allowing police to identify law-abiding citizens going about their day or participating in a First Amendment-protected activity, such as a protest, could have a disturbing chilling effect on members of the public (as Georgetown researchers noted). Because the Supreme Court has yet to rule on whether law enforcement officials using facial recognition technology are conducting Fourth Amendment searches it’s up to federal agencies to implement such policies of their own accord.

Drones are not the only devices that can be outfitted with facial recognition tools. As I wrote late last year, facial recognition tools can be used with police body cameras. As police drones and body cameras become more popular we should be wary of the fact that these tools can serve as platforms for surveillance technology more intrusive than ordinary cameras.