Cato Op-Eds

Individual Liberty, Free Markets, and Peace
Subscribe to Cato Op-Eds feed

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

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

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

On college he presents a similar counterfactual:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The first full sentence is: 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

An Apparent Conflict

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

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

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

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

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

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

Entry v. Visa Issuance

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

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

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

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

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

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

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

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

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

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

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

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

Visa Revocation v. Visa Issuance

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

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

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

Visa Procedures v. Visa Issuance

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

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

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

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

How Congress understood the law 

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

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

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

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

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

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

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

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

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

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

No exception for difficult to screen individuals

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

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

And:

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

And in the most Trump-like language:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Newly sworn-in Secretary of Education Betsy DeVos tried, and eventually succeeded, to visit a Washington, D.C., public school Friday morning. As warned by her opponents after she was confirmed by a razor-thin margin on Tuesday, she was met by protesters who intended to make good on the threat to block her at every turn. In this case, literally: according to videos like the one below, they physically tried to prevent her from entering the building.

The opposition to DeVos, as I’ve suggested over the last several weeks, has been over the top and, frankly, unfair. It also hasn’t done much to improve the sick state of the national political dialogue.

That said, there may be no one more sympathetic to objections to federal education meddling than me. Indeed, if the school refused to let DeVos visit because it did not want the disruption or political theater, I’d have been all for it.

But there is a way more constructive way to solve the problem of dangerous or unwanted federal intervention than blocking schoolhouse doors: work to end the federal Department of Education.

This does not, by the way, mean ending the federal role in keeping states and districts from discriminating in their provision of education, but that is much more properly a Justice Department responsibility.

The vast majority of what the Education Department does is collect taxpayer money, burn a bunch off in bureaucracy, then bundle the remainder into programs that tell states, districts and schools how to run education, all with little evidence of meaningful academic effects. This situation will likely improve a bit with the Every Student Succeeds Act, which does return some control to states, but a little better is still awfully bad.

The good news is that a window has opened for the protestors and anyone else worried about federal power — or maybe just interested in seeing the Constitution obeyed — to end the education department.

Rep. Thomas Massie, R-Ky., has just introduced legislation to end the Education Department. The text of the bill is simple: “The Department of Education shall terminate on December 31, 2018.” That’s it. I’d like to see what would happen to all the programs the department runs — they’re the meat of the problem — but the simple bill is a major step in the right direction.

I hope DeVos’ opponents would agree that ending most federal education intervention would be a good thing. But if not, don’t worry: I won’t try to visit your school.

Yesterday, President Trump’s pick for Attorney General, Jeff Sessions, was sworn into his office. Trump used the occasion to sign three executive orders relating to crime.  In this post, I want to briefly scrutinize these orders and explain what impact they may have on our criminal justice system.

One order calls for the creation of a task force on crime reduction.  The new Attorney General will appoint people to the task force and they will meet and discuss ideas and make recommendations for Trump. A second order is titled “Preventing Violence Against Federal, State, Tribal, and Local Law Enforcement Officers.” This order is also about exploring new ideas and strategies to “enhance the protection and safety” of law enforcement officers.  The third order concerns enforcing federal law against transnational criminal organizations that employ violence and derive revenue “through widespread illegal conduct.”  Working groups will be established to discuss ideas and make recommendations to Attorney General Sessions and President Trump.

To begin, these executive orders do not, by themselves, raise any legal or constitutional problems.  Sometimes presidents use executive orders to usurp the lawmaking power that is assigned to the Congress.  These orders do not fall into that category.  These orders only concern the apparatus of the executive branch itself.  Trump wants to make sure the Department of State, Homeland Security, and Justice Department are sharing information and coordinating their efforts, for example.  There’s no new law or restriction that applies to persons in the U.S. that did not already exist last week.

Second, Trump’s orders are also fairly conventional.  This is what Republican presidents usually do.  President Reagan and President George H.W. Bush created task forces and working groups to make recommendations about how to better organize the government and fight crime.

Third, one can also fairly say that Trump is simply following through on his campaign promises.  Illegal immigration was the centerpiece of his candidacy and these orders are mostly about the specifics.  It is true that many people from Mexico and Central America try to make it to the U.S. on their own.  Yet it is also true that there are transnational criminal organizations that are in the business of human smuggling. Trump wants recommendations on how to strengthen and improve the government’s efforts to combat these organizations.  No major surprise about that.

All in all, some might say that the orders are “no big deal.”

Well, not so fast.  There are several reasons that supporters of limited, constitutional government ought to be concerned about the orders that Trump signed yesterday.  For the past 30 years, the Right has been sounding the alarm about the growth of government and the federalization of crime.  In the landmark Lopez ruling, the Rehnquist Court invalidated the first federal criminal law in 60 years because it was simply beyond Congress’s power to enact.  Former Reagan Attorney General Edwin Meese has testified about the sorry shape of the federal criminal code and the need to scale it back.  The Federalist Society has also drawn attention to that problem.

Trump and Sessions seem not only uninterested, they seem intent on exacerbating the problem.  The orders instruct the task forces and working groups to see whether existing laws are “adequate” and to recommend legislation “defining new crimes” for the president’s consideration and signature.  Same thing with the federal “funding programs.”  If they’re not adequate, bring the president budgetary proposals.  Note that the budget of the Department of Justice has been on on upward trajectory for many, many years.  The Trump administration seems to want that growth to continue.

Trump’s heart may be in the right place.  He notes the awful circumstances in so many of our cities for poor minorities who have to live in violent neighborhoods and attend lousy schools.  Unfortunately, Trump seems to view the Constitution’s separation and division of powers as bugs instead of features.  To paraphrase The Cato Handbook for Policymakers, the identification of a problem does not mean that the government should undertake to solve it, and the fact that a problem occurs in more than one state (carjackings, lousy schools, obesity, termites) does not mean that it is a proper subject for federal policy.  

We will be sending complimentary copies of the Handbook to President Trump, Attorney General Sessions, and all members of Congress to remind them that the federal government is already too big, and that our fundamental law, the Constitution (to say nothing about our fiscal crisis), requires recommendations for downsizing federal operations.   

Yesterday, President Trump signed three executive orders to focus federal resources on fighting drug cartels, increasing overall public safety, and preventing violence against law enforcement officers.

Perhaps the most worrisome of these is the directive to “pursue appropriate legislation…that will define new Federal crimes, and increase penalties for existing Federal crimes, in order to prevent violence against Federal, State, tribal, and local law enforcement officers.”

While law enforcement officer safety is important, there is no evidence that local or state officials have been reluctant to capture and punish those who commit violence against police. Moreover, there is little empirical evidence that more punitive sentences deter crime generally.

Put simply, the federal government has no business getting involved when local law enforcement is doing its job. This argument is almost identical to the one Republicans like then-Senator Jeff Sessions used when they opposed the expansion of federal hate crimes protections to individuals with alternative sexual orientation or gender identity. Regardless of one’s position on the effectiveness of local law enforcement protection of LGBTQ communities and the prosecution of their attackers, one would be hard-pressed to find a police agency or prosecutor’s office that looks the other way when there is violence against police.

Federal criminal law should be used sparingly, and only in circumstances in which local or state law enforcement are unable or unwilling to enforce the appropriate law. Violence against police officers is taken seriously in every policing jurisdiction in America. The laws contemplated by this executive order would thus be duplicative, at best, and likely exceed the federal prerogative in criminal justice. 

Keeping law enforcement officers safe is a noble goal. But there is little evidence that new and harsher federal criminal laws will do anything at all to make American police safer.

This is a dog’s breakfast of a ruling on a dog’s lunch of an executive order. Somehow the Ninth Circuit judges manage to write 29 pages without discussing the heart of the matter: whether the Immigration and Naturalization Act, specifically section 1182, give the president the power to do what he did. Nebulous discussions of due process may be nice (or not) but they’re superfluous if the president went beyond his statutory authority. But apparently the court didn’t care about that.    And of course this whole mess could’ve been avoided if the executive order had gone through proper interagency review in the first place, as well as being more narrowly tailored. As it stands, it’s both over- and under-inclusive, sweeping in green card and other visa holders who’ve already gone through “extreme vetting,” as well as non-threatening graduate students and sick kids while not covering the potentially risky pool of nationals from non-covered countries (including European ones) who may have become radicalized.    In short, this is a judicial failure that compounds an executive one. Perhaps it’s time for the legislative branch (Congress) to step in and fix our broken immigration system once and for all.   

The federal government provides an array of subsidies to increase the consumption of biofuels such as corn ethanol. The subsidies include tax breaks, grants, loans, and loan guarantees. The government also imposes a mandate to blend biofuels into gasoline and diesel fuels.

A new study at DownsizingGovernment.org describes the damage caused by these policies. Subsidies and the Renewable Fuel Standard (RFS) harm taxpayers, motorists, consumers, and the environment.

The study by Nicolas Loris argues that Congress should end its intervention in the biofuels industry. It should terminate subsidies and repeal the RFS. Individuals and markets can make more efficient and environmentally sound decisions regarding biofuels without subsidies and mandates.

Investor Carl Icahn said that the RFS has created a bureaucratic market in tradable credits full of “manipulation, speculation and fraud” with the potential to “destroy America’s oil refineries, send gasoline prices skyward and devastate the U.S. economy.”

That language is probably too strong, but federal ethanol policies really are stupid. President Trump says that he wants to cut unneeded regulations and wasteful subsidies. The RFS and biofuel hand-outs would be good policies to target.

So for an interesting read illustrating the craziness of special-interest policies in Washington, check out “Ethanol and Biofuel Policies.” The next time you are at the gas station and see that “E10” sticker on the pump, remember that a tag team of D.C. politicians and corn farmers are picking your pocket. 

Payday loans are small, short-term, unsecured loans. The typical borrower can not easily borrow elsewhere, and the interest rates on payday loans are quite high. These factors generate enormous criticism of payday lenders for “exploiting” borrowers.

Economists Susan Payne Carter and William Skimmyhorn of the United States Military Academy provide evidence on this criticism:

We evaluate the effect that payday loan access has on credit and labor market outcomes of individuals in the U.S. Army. … We find few adverse effects of payday loan access on service members when using any of [our empirical] methods, even when we examine dozens of subsamples that explore potential differential treatment effects.

This should not be a surprise: for people with poor credit, payday loans can be better than the alternatives. These include going to a loan shark, which is even more expensive; or not borrowing, even to fund crucial medical care, or a rental payment that avoids eviction, or travel to secure a job.

Here’s good news: President Trump may sign an executive order suspending the failed conflict minerals provisions of the Dodd-Frank law. Days before, Securities and Exchange Commission Acting Chairman Michael Piwowar had issued two statements directing the SEC to revisit its enforcement of the same provisions.

The provisions, enacted in 2010 as part of the wider Dodd-Frank law, impose a complex and in places impractical disclosure regime on publicly held companies that make products containing such minerals as tin, tungsten, tantalum, and gold. The idea is that laying bare supply chains leading to war-torn areas of central Africa will facilitate consumer boycotts. Some reports on the draft executive order, such as that in the Guardian (via Simon Schama on Twitter), seem intent on judging the Loi Obama (as it was known in some of the affected regions) by these original intentions rather than by its actual results. Yet those actual results are no secret. More than two years ago, the Washington Post, confirming what was widely known already, ran front-page reportage about how the law had

set off a chain of events that has propelled millions of miners and their families deeper into poverty, according to interviews with miners, community leaders, activists, and Congolese and Western officials, as well as recent visits to four large mining areas.

As the economy of the area had destabilized, some miners with no other way to support their families had themselves thrown in with lawless armed groups.

At the same time, the law was set to impose billions of dollars in cost on American companies and consumers. I won’t repeat the case against the rules, since I summarized it in this space two years ago, and little appears to have changed since. (For more, check the coverage at Overlawyered.)

The rumored draft of the executive order looks good, but a president’s leeway under the law extends only to suspending its effect for a time. Putting this fiasco to an end will call on Congress to repeal the relevant sections of Dodd-Frank, and that is what it should now proceed to do.

When I debate one of my leftist friends about deficits, it’s often a strange experience because none of us actually care that much about red ink.

I’m motivated instead by a desire to shrink the burden of government spending, so I argue for spending restraint rather than tax hikes that would “feed the beast.”

And folks on the left want bigger government, so they argue for tax hikes to enable more spending and redistribution.

I feel that I have an advantage in these debates, though, because I share my table of nations that have achieved great results when nominal spending grows by less than 2 percent per year.

The table shows that nations practicing spending restraint for multi-year periods reduce the problem of excessive government and also address the symptom of red ink.

I then ask my leftist buddies to please share their table showing nations that got good results from tax increases. And the response is…awkward silence, followed by attempts to change the subject. I often think you can even hear crickets chirping in the background.

I point this out because I now have another nation to add to my collection.

From the start of last decade up through the 2009-2010 fiscal year, government spending in the United Kingdom grew by 7.1 percent annually, far faster than the growth of the economy’s productive sector. As a result, an ever-greater share of the private economy was being diverted to politicians and bureaucrats.

Beginning with the 2010-2011 fiscal year, however, officials started complying with my Golden Rule and outlays since then have grown by an average of 1.6 percent per year.

And as you can see from this chart prepared by the Institute for Fiscal Studies, this modest level of fiscal restraint has paid big dividends. The burden of government spending has significantly declined, falling from 45 percent of national income to 40 percent of national income.

This means more resources in private hands, which means better economic performance.

Though allow me to now share some caveats. Fiscal policy is only a small piece of what determines good policy, just 20 percent of a nation’s grade according to Economic Freedom of the World.

So spending restraint should be accompanied by free trade, sound money, a sensible regulatory structure, and good governance. Moreover, as we see from the tragedy of Greece, spending restraint doesn’t even lead to good fiscal policy if it’s accompanied by huge tax increases.

Fortunately, the United Kingdom is reasonably sensible, which explains why the country is ranked #10 by EFW. Though it’s worth noting that it gets its lowest score for “size of government,” so the recent bit of good news about spending restraint needs to be the start of a long journey.

P.S. The United States got great results thanks to spending restraint between 2009-2014. It will be interesting to see whether Republicans get better results with Trump in the White House.

Jae Lee came to the United States legally as a child but never became a citizen. In 2009, he pled guilty to a drug crime after his lawyer assured him that he could not be deported as a result. The lawyer was wrong, because the conviction made Lee subject to mandatory removal.

When Lee learned of this mistake, he asked the court to vacate his plea so he could instead face trial, arguing that his counsel’s assistance was ineffective. The district court denied this motion because of the overwhelming evidence against Lee, ruling that his conviction at trial was so certain that his counsel’s bad advice didn’t actually harm him, particularly given the much longer prison sentence he would receive if convicted after trial.

The U.S. Court of Appeals for the Sixth Circuit agreed that a jury wasn’t needed to determine Lee’s guilt and that denying the “chance to throw a Hail Mary at trial is not prejudicial” and therefore doesn’t violate Lee’s Sixth Amendment right to a jury trial. The court reasoned that that the only chance Lee had was acquittal by “jury nullification” and thus such a gambit was so irrational—and the idea of nullification so antiquated—that it is not to be allowed.

Lee is now pressing the matter at the Supreme Court, which has agreed to hear his argument, which Cato is supporting with this amicus brief. The idea of an independent jury’s nullification power is encompassed in the original meaning of the Sixth Amendment. Colonists frequently viewed juries as a shield against the crown, as juries frequently protected defendants against unjust and oppressive laws.

Independent juries were important enough in the American colonies that a section in the Declaration of Independence was devoted to assailing the King for depriving them of that right. The importance of an independent jury, and what such a jury meant at the time, informed the creation and adoption of the jury-trial right in the Bill of Rights. The meaning is made clear by Alexander Hamilton, who argued as defense counsel in 1804 that it is up to the jury to decide facts and the law, and it is in the deciding of the law that the nullification power comes from. The meaning is further solidified by John Adams’s statement that it is the duty of a jury “to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.”

The Sixth Circuit actually admits in this case that the power of juries to acquit, despite strong evidence for conviction, was central to the decision to enshrine the jury right in the Constitution. In spite of the incontrovertible evidence that the right to seek an acquittal by nullification was enshrined in the Sixth Amendment, Jae Lee had this right revoked simply because it was considered irrational or unwise.

The Supreme Court must now protect the right to pursue a risky trial strategy; it may not be wise to seek acquittal by nullification, but Lee should be able to decide that the risk is worth facing as against the certainty of deportation. It is not up to courts to pick which strategy is best for criminal defendants to follow, but judges should protect the right to choose a jury trial even when they might not make the same choice under the same circumstances.

The Supreme Court hears argument in Lee v. United States on March 28.

Pages