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Donald Trump has said he wants to cancel President Obama’s Deferred Action for Childhood Arrivals (DACA) program and has implied he would do it on his first day in office. DACA allows young immigrants—known as Dreamers—who were brought to the U.S. illegally as children to live and work here temporarily

Trump recently softened his tone, saying he would try to “work something out” with Dreamers. But DACA probably won’t disappear overnight when Trump assumes office on January 20th in any case. Rather, it will slowly wind down as the immigrants’ temporary work permits expire. Here’s why and how that will happen.

How DACA operates

There are essentially three parts of DACA, which are detailed in a Department of Homeland Security (DHS) memorandum from Secretary Janet Napolitano. The first part is the deprioritization of removal of non-criminal unauthorized immigrants. Currently, the department relies on detailed priorities when deciding whether to remove a specific person. The DACA memo tells DHS agents to prevent Dreamers that they encounter “from being placed into removal proceedings or removed from the United States.”

The second part of DACA essentially formalizes that decision not remove them. DACA recipients apply for and are issued a Notice of Action I-797 form (below) stating that removal action against them has been “deferred” for two years. Their information is entered into a database, and if it is checked against immigration databases, they are shown as lawfully present in the United States during that time. More than 800,000 young immigrants have enrolled in DACA and received such a letter.

Figure 1: DACA Form I-797 Notice of Action

Source: Imgur

Finally, this receipt of deferred action authorizes the immigrants to request an employment authorization document (EAD) similar to the one below, which is also valid for two years. Under current law, any person in the United States—legally or illegally—can legally seek employment, but it is illegal for an employer to employ a noncitizen who is not authorized to work. Thus, an EAD is really about authorizing employers to make a hire, not about authorizing the DACA recipient to seek a job.*

What Trump can do about DACA

Trump could theoretically overturn the first part of DACA on day 1, authorizing agents to apprehend and remove DACA recipients. This is very unlikely. First of all, Congress has repeatedly enacted Homeland Security appropriations bills that instructed the president to “prioritize the identification and removal of aliens convicted of a crime by the severity of that crime.” Second, while it is possible that Trump could ignore this, he has stated that he will indeed continue to prioritize criminals (one Trump advisor has suggested that immigrants arrested for, but not yet convicted of, serious offenses would also be prioritized). Third, Trump’s vague promise to “work something out” implies at least some unwillingness to go out of his way to deport Dreamers. Fourth, Trump’s unrealistic vow to deport 2 million criminals makes it unlikely he will waste precious resources on low priority, non-criminal cases.

Trump could easily cancel the second part of DACA on day 1, telling U.S. Citizenship and Immigration Services to cease accepting applications for I-797 deferred action forms. These forms are technically valid for two years, but they clearly state that they were issued as part of DACA. Deleting DACA recipients from ICE databases that list them as “lawfully present” could be more time-consuming, but probably not technically impossible.

Figure 2: DACA-based Employment Authorization Document (EAD)

Source: WangLawOffice

Because employment authorization is dependent on a grant of deferred action, canceling part 2 of DACA would legally end part 3 as well. But in practice, the administration cannot prevent DACA recipients from working until their employment authorization document expires. As can be seen in the EAD above, nothing on the physical document indicates that it was issued under DACA, and employers are legally obligated to accept any facially valid, non-expired form of identification issued by the federal government. There is no electronic way to cancel an EAD, and discriminating against job applicants simply because they are using an EAD is illegal.*

The Obama administration has showed how difficult ending DACA quickly will be

President Obama actually tried to cancel certain DACA EADs in 2015. In 2014, two years after DACA was initially implemented, the Obama administration declared it would expand DACA to a broader group of immigrants and issue 3-year EADs. When several states sued to prevent implementation of that memo and the Deferred Action for Parents of Americans memo, a judge imposed an injunction against the expanded DACA in February 2015. The Obama administration initially misinterpreted his order and incorrectly continued to issue 3-year EADs as renewals to the initial group of DACA recipients.

The administration sent or resent 2,600 three-year EADs to DACA recipients after the judge’s order in February. Because the expiration date on the EAD prevented the administration from halting DACA recipients’ employment authorization electronically, U.S. Citizenship and Immigration Services (USCIS) had to individually recoup them. DHS sent out 2,600 letters and called each recipient to inform them that they would be replacing 3-year EADs with 2-year EADs. USCIS officials also apparently made visits to some recipients’ “listed address” to collect the 3-year EADs in person. DHS also said, “If you fail to return your card, USCIS will terminate your DACA and all employment authorizations effective July 31, 2015.” It is not clear how they planned to effectuate this termination.

Ultimately, USCIS failed to recover 22 cards, or failed to receive good cause for not receiving them. As a result, those 22 individuals were “terminated from DACA.” The agency says termination involved sending the following letter to DACA recipients:

Any DACA-based EAD you received (including your recently issued 2-year EAD) is now invalid. You must return all DACA-based EADs to USCIS immediately. Fraudulent use of your EADs could result in a referral to law enforcement. You are still required to return your invalid EADs to USCIS. As noted in your Notice of Intent to Terminate, USCIS may consider failure to return your invalid EADs a negative factor in weighing whether to grant any future requests for deferred action or any other discretionary requests.

However, this letter failed to provide a statute under which the DACA recipient could be prosecuted, and the immigration statute and two criminal statutes relating to misuse of documents or fraudulent use of documents do not appear to prohibit use of a genuine EAD issued legally to the person who is using it.* In any case, there would be no practical constraint on these DACA recipients seeking employment, since an employer that was unaware of the cancellation could continue to employ them lawfully.* Moreover, there is no indication that these 22 immigrants were in fact removed from the country.

In the end, even when offering to replace EAD cards, DHS needed to send agents to recipients’ homes, and 1 percent of recipients still failed to cooperate. It is easy to imagine how difficult it would be if there was no offer of a replacement. While the fact that home visits were made demonstrates that DHS does have the knowledge and ability to track down DACA recipients in certain cases, it is likely that as soon as any apprehensions were made, other DACA beneficiaries would move.

How DACA would naturally wind down

Even if it wanted to, the Trump administration would likely be dissuaded from ending DACA immediately by the practicalities of cancelling all 800,000 EADs alone. But it makes especially little sense to do this when a majority of the EADs will expire within a year of Trump assuming office in any case. The Obama administration has since 2014 made public quarterly breakdowns of when DACA recipients renewed their status or received their status for the first time. Figure 3 provides those figures with projections for the last three quarters, based on the typical rate of approvals for initial applications and the number of 2-year renewals during the same quarters two years prior.

Figure 3: Timeline of DACA Approvals—Initial and Renewals—April 2014 to March 2017

Source: USCIS Data Set: Form I-821D Deferred Action for Childhood Arrivals. July 2016 to March 2017 are projections based on the number of two-year renewals in those months in 2014 and 2015. January to March 2017 is projected based on the percentage of days of the current administration’s term.

This timeline of DACA approvals allows for the creation of a rough timeline of DACA EAD expirations, provided in figure 4. More than 85 percent of all DACA EADs are 2-year authorizations. Another 108,000 are 3-year authorizations that were issued in late 2014 and early 2015. Unfortunately, the 3-year EADs will expire for most receipients in December 2017 or January 2018—sooner than if they had been issued two-year renewals, which they could have renewed in December 2016 and early January 2017, allowing for an extra year of authorization. As a result, there will be a more constant stream of DACA expirations than there were DACA approvals.

Figure 4: Projected DACA Expirations by Quarter

Source: Author’s calculation based on USCIS DACA Approval Figures. See figure 3 explanation.

Approximately 314,000 DACA recipients will lose DACA EAD authorization in 2017—about 38 percent of all DACA applicants. Another roughly 467,000 will lose authorization in 2018—about 115,000 of those will happen in the first quarter of 2018, meaning that DACA will be half over by March 2018.

Figure 5: Projected DACA Expirations by Year

Source: Author’s calculation based on USCIS DACA Approval Figures.

A couple of uncertainties are present in this analysis. First, the administration allows DACA renewal applications up to 6 months in advance, and some DACA renewal approvals occurred before the initial 2-year period ended, meaning that the administration issues a determination before the new period begins in some cases. In other cases, the administration issued renewals after the 2-year period was over. Thus, it is possible that the periods of DACA authorization could continue somewhat beyond the 2-year mark of their approval (though the data is divided into 3-month chunks, so it cannot be far off). Second, for the same reason, it is possible that the current administration could issue pre-approved EADs before the end of its term. This would obviously require ramping up the already-high current pace of renewals.

Worst case and best case scenario for DACA recipients under President Trump

The worst case scenario for DACA recipients would be that the Trump administration stops accepting new DACA applications and eliminates any kind of priorities for removal, allowing agents to apprehend any unauthorized immigrant that they meet. The administration could further create panic in the immigrant community by targeting certain DACA recipients for arrest, using the address information that they provided as part of their application. At the same time, the Trump administration could potentially threaten to prosecute employers or the immigrants themselves if they use their EADs. This would create chaos for employers and workers, as no employer would know if the EAD they were reviewing was valid.

At the other extreme, the Trump administration could continue the current priorities for removal and allow current recipients of DACA to use their EADs until they expire, while not accepting new applications or renewals. This would be the least controversial and most practical decision that would also be consistent with Trump’s campaign promises.

*The contents of this article are intended to convey general information only and not to provide legal advice or opinions. No action should be taken in reliance on the information contained in this article. If the reader is in need of legal advice, they should contact a licensed attorney.

Think of college, and your mind may well conjure images of ivy creeping up the walls of stately, gray, Gothic stone buildings in which the deepest of learning occurs. Such buildings exist, of course, but reality is not so pleasantly simple: Those buildings cost big money to erect and maintain, money many colleges may not have. What’s more, students often demand that more fun stuff, rather than deep learning, occur inside them. Or so a new report suggests.

“College and university enrollments are, in aggregate, either stable or declining,” intones the report, titled “The State of Facilities in Higher Education: 2016 Benchmarks, Best Practices and Trends.” The paper is from Sightlines, an outfit that provides facilities data to academia. “In light of the building boom of recent years, many campuses now have more space to maintain and fewer students to fill it.”

Essentially, the report says that colleges have been on a big building binge, but enrollment has been stagnant or declining. The basic math is concerning: Greater capital costs, plus decreasing revenue, equals trouble.

Has the building boom been driven by an edifice complex — college presidents and faculty love new buildings all over campus that are imposing, cutting edge, or both — or an amenities arms race to bring in students?

It’s probably both, but the report puts the onus on a destructive race to attract increasingly scarce students who demand ever more luxury:

Several campuses, realizing the possibility of a decline in enrollment, used the new construction (especially for housing, dining, and recreation facilities) as a way of attracting additional students. The hope being that the development of new amenities and support services can make a campus more attractive to millennials. According to several campus administrators, today’s student body “expects” high-end dormitories, multiple dining options, and modern fitness and recreational facilities. But fulfilling those expectations comes at a cost.

The report says that for decades, college construction has focused more on creating non-academic than academic space, and about half of all college space today is for non-academic use.

It’s a classic arms race: Colleges frightened of losing tuition dollars feel constant pressure to spend on expensive facilities to compete for students, in the process greatly increasing the danger of becoming even more insecure financially, maybe hopelessly so.

But how can students demand all these pricey things that are often superfluous to learning?

The answer, largely, is that someone else is paying.

Students, like most people, would take nice things, all else equal. But most people are constrained by cost: They often can’t afford, or cannot justify, spending their hard-earned money on many lovely but expensive items or services. The vast majority of students, however, pay for college in part with someone else’s dough.

Much of that is in the form of direct taxpayer subsidies to public institutions, which enroll about 73 percent of all students, and in 2015 absorbed around $87 billion in state and local subsidies. Then there is federal student aid, including grants, loans, work study, and tax benefits, which totaled $158 billion in 2015.

Students can demand so much because, in large part, you and all your taxpaying friends are footing the bill.

College campuses are often covered in buildings that feel grand, almost mythical. But they are rooted in gritty reality: Someone’s got to pay for them, and that’s getting harder to do. Maybe the solution is to have those who demand the good life pay for it themselves.

[Cross-posted from the Washington Examiner’s Beltway Confidential blog]

Several senators have introduced bills this month to prevent the elimination of President Obama’s Deferred Action for Childhood Arrivals (DACA) program. DACA has granted work permits and lawful presence to more than 800,0000 young immigrants—known as Dreamers—who were brought to the U.S. as children. It would be an unquestionably positive thing for the United States if one of these bills becomes law, but DACA had a flaw that Congress can correct: it included only those young immigrants who are here illegally, excluding children of immigrants who came to the United States legally.

It may seem that these immigrants do not need help since they have a legal status, but unfortunately, under America’s dysfunctional immigration system, many thousands of young legal immigrants are forced to leave, even though they followed the rules. Because these new bills continue DACA as is, they fail to address this major problem.

Here is how many young legal immigrants end up in this situation. Immigrants often initially enter the United States on work visas, such as the H-1B visa. H-1B visas allow skilled foreign workers to work in the United States for up to six years. Their spouses and minor children can also enter with them on H-4 visas. If an employer sponsors them for a green card—or permanent residency—the H-1B worker with their spouse and minor children can remain in the United States beyond the six-year limit until a green card is available. Then, the worker, their spouse, and minor children can adjust to permanent residency.

This system would work fine in theory. But for various reasons—1) because far more H-1Bs and H-4s are issued than green cards, 2) because the U.S. discriminates against immigrants from populous countries under the “per-country limits,” and 3) because spouses and minor children are not counted against the H-1B limit, but are counted (erroneously) against the green card limit—long backlogs develop for immigrants from certain countries. As I’ve written before, no one even knows how long these legal immigrants will have to wait.

The children of H-1B workers suffer the most under this flawed system. Even though they are in a legal status, they are prohibited from working legally in the country that is their home. Worse still, even though they grew up in the United States, they become ineligible for their status once they reach the age of 21 as they are no longer a “minor” child of an H-1B. Simultaneously, they lose their eligibility for a green card under their parents’ green card category, even if they had been waiting in line for years

These two problems are known as “aging out.” Although no one is counting, they affect tens of thousands of legal immigrant children every year. Essentially, these legal immigrants are subject to deportation solely because they grew up, and America is losing talented, already assimilated workers.

DACA could have helped these young people because it provided work permits and lawful presence to immigrants under age 31 who came to the United States before age 16. Unfortunately, the Obama administration included a requirement that an immigrant is eligible under DACA only if they had no “lawful status on June 15, 2012” when the Obama administration created the program. In other words, unauthorized immigrants whose parents violated the law benefited, while those immigrants whose parents followed the law did not.

Here are five ways to address this problem.

  1. Grant status and work authorization to legal immigrant Dreamers who otherwise meet the criteria for DACA in any bill extending DACA (which is essentially what the 2013 Senate-passed reform bill did).
  2. Authorize spouses and children of H-1Bs for work authorization. Banning legal immigrants from working is counter to America’s economic interests.
  3. Prevent aging out of green card petitions (which the Senate bill also did).
  4. Allow children of H-1Bs who have extended beyond the six-year limit to extend their status along with their parents.
  5. Fix the three problems with the immigration system that lead to the green card backlog in the first place—too few green cards, limits on individual countries, and counting spouses and children against the green card limits.

DACA recipients are benefiting the United States, but the Obama administration’s decision to close it off from legal immigrants serves no purpose, and Congress has no reason to perpetuate its mistake. 

Donald Trump has tabbed Andy Puzder to lead the Department of Labor. Puzder is the CEO of CKE, the restaurant outfit (read: Hardee’s and Carl’s Jr.). CKE, thanks to Puzder saving it from the bankruptcy hammer, employs 75,000 workers (read: jobs). Puzder knows that “high” minimum wages, such as the $15 per hour one thrown around by progressives, is a job killer for low-skill workers.

During his nomination hearings, Andy Puzder will no doubt be grilled about his views on “high” minimum wages. His inquisitors will trot out glowing claims about the wonders of a $15 per hour minimum wage, as did President Obama in his 2014 State of the Union address. As the President put it: “It’s good for the economy; it’s good for America.” Not so fast.

The glowing claims about minimum wage laws don’t pass the most basic economic smell tests. Just look at the data from Europe. The following two charts tell the tale and should be tucked into Andy Puzder’s briefing portfolio.

There are six European Union (E.U.) countries in which no minimum wage is mandated (Austria, Cyprus, Denmark, Finland, Italy, and Sweden). If we compare the levels of unemployment in these countries with E.U. countries that impose a minimum wage, the results are clear. A minimum wage leads to higher levels of unemployment. In the 21 countries with a minimum wage, the average country has an unemployment rate of 11.8%. Whereas, the average unemployment rate in the seven countries without mandated minimum wages is about one third lower — at 7.9%.

This point is even more pronounced when we look at rates of unemployment among the E.U.’s youth — defined as those younger than 25 years of age.

In the twenty-two E.U. countries where there are minimum wage laws, 27.7% of the youth demographic — more than one in four young adults — was unemployed in 2012. This is considerably higher than the youth unemployment rate in the seven E.U. countries without minimum wage laws — 19.5% in 2012 — a gap that has only widened since the Lehman Brothers collapse in 2008.

So, minimum wage laws — while advertised under the banner of social justice — do not live up to the claims made by those who tout them. They do not lift low wage earners to a so-called “social minimum”. Indeed, minimum wage laws — imposed at the levels employed in Europe — push a considerable number of people into unemployment. And, unless those newly unemployed qualify for government assistance (read: welfare), they will sink below, or further below, the social minimum.

As Nobelist Milton Friedman correctly quipped, “A minimum wage law is, in reality, a law that makes it illegal for an employer to hire a person with limited skills.”

According to a New York Times report on President-Elect Donald Trump’s meeting with technology leaders last week, Mr. Trump asked the executives “to see if they could not apply data analysis technology to detect and help get rid of government waste.”

They can not. The existence of data that would permit them to do so will be dictated by the Trump administration’s approach to implementing the DATA Act.

The DATA Act requires the federal government to transform all spending information into open data. If the federal government follows through on publishing spending data in open formats—which is very much an open question—technology companies old and new will be able to work the kind of magic they have in other fields.

There is not an algorithm, of course, to separate wasteful spending from useful. These are value judgments made by humans. But while the data underlying these judgments is held by insiders, their preferences for lush spending will be satisfied. Average Americans seeing multiplicitous government programs and bloated government contracts perceive that as waste.

Nothing specific that I’m aware of suggests any Trump administration policy yet with respect to the DATA Act, but the selection of Rep. Mick Mulvaney (R-SC) to head the Office of Management and Budget may bode well. OMB has been a drag on government spending transparency, and Mulvaney is the type to do away with business as usual. The DATA Act would do for the whole government what he sought from National Credit Union Administration in recent legislation: line-by-line budget transparency.

When the time comes to formulate policy on spending transparency, ask not what technology leaders can do for you, Mr. Trump, but what the DATA Act can do for them.

Parents are more satisfied with their child’s learning environment when they choose it. Indeed, as economist Tyler Cowen put it recently, “the single most overwhelming (yet neglected) empirical fact” about educational choice programs is that “they improve parent satisfaction.” A slew of new reports add a number of hefty boulders to the mountain of evidence. 

As I explained in greater detail last week, bureaucrats tend to focus excessively on test scores but parents take a more holistic approach to evaluating the quality of an education provider. As Cowen notes, “parents may like the academic programs, teacher skills, school discipline, safety, student respect for teachers, moral values, class size, teacher-parent relations, parental involvement, and freedom to observe religious traditions, among other facets of school choice.” Parents know their children are more than scores.

Voters generally tend to reflect the views of parents more so than education technocrats. In a recent survey from Public School Options, only 14 percent of voters said they “consider state standardized test scores the critical factor in assessing a student’s overall success in school” and 78 percent said that schools “should never be closed primarily on the results of that particular school’s average” on the state’s standardized test. Moreover, 65 percent said they “believe an ongoing summary of each school’s status using a dashboard of multiple measurements would be more helpful to parents and policy makers” than a “system that provides a single letter grade for each school.” If we want an education system that considers the individual needs of each child rather than grading schools on a few narrow measures of performance for an imagined “typical” child, then we should entrust parents with holding education providers accountable for academic outcomes.

Education savings accounts (ESAs) are one way to accomplish that goal. With an ESA, parents can customize their child’s education, using it to pay for private school tuition as well as tutors, textbooks, online courses, educational therapy, and more. The ESAs are typically funded from a portion of the funds that the state would have spent on a child at his or her assigned district school, but they could also be funded through tax-credit eligible donations. In a 2013 survey, Arizona parents of students with special needs expressed unanimous satisfaction with the educational settings they chose for their children using the ESA funds. Moreover, the lowest-income families were the most likely to express dissatisfaction with their assigned district school (67 percent) and the most likely to say they were “very satisfied” with the education their child obtained through the ESA (89 percent).

Last week, Empower Mississippi released a similar survey of parents of students with special needs using Mississippi’s ESA. Participating students had an array of conditions, including autism, hearing or visual impairments, traumatic brain injuries, speech impairment, emotional disturbances, and more. The results mirrored those from Arizona. As shown in the two figures below, most participants were dissatisfied with their previous experience in their assigned district school (67 percent) but they overwhelmingly expressed satisfaction with the educational setting they chose using ESA funds (98 percent). 

Source: Empower Mississippi

These views may not reflect the views of all Mississippi parents, or even all parents of special needs children. Nevertheless, they show that the district schools are not serving a subset of the population and that those parents believe their children are much better served in settings that they choose.

That said, national survey data indicate that parents generally are happiest at chosen schools. In a recent survey, Education Next asked parents of children attending a variety of different types of schools about their levels of satisfaction with their school’s teacher quality, school discipline, expectations for student achievement, safety, instruction in character or values, location, racial and ethnic diversity, and the school building and facilities. Parents were significantly more likely to express satisfaction with schools that they chose than the district schools to which their child was assigned. Moreover, as shown in the figure below, parents were more satisfied with private schools, where they generally pay at least some tuition, than at public charter schools, which do not charge tuition.

Education Next also published parental satisfaction data that the U.S. Department of Education under “the most transparent administration in history“ had collected but never reported publicly. As Harvard Professor Paul Peterson explained in the Wall Street Journal:

As we were completing our analysis, we unearthed a U.S. Education Department survey from 2012 that posed similar questions to a nationally representative sample of parents, and we found that the Obama administration has never reported the charter-school results from this survey, although the raw data are publicly available for others to analyze.

Digging into this data, we discovered that this survey, too, reveals both private-school parents and charter parents to be more satisfied with their schools than parents with children assigned to public schools. They are also more satisfied with teachers, academic standards, discipline and “the way the school staff interacts with parents.”

Once again, the DOE survey found that parents are more satisfied when their children attend schools that they chose, particularly private schools. As shown in the figure below, low-income parents are significantly less satisfied their assigned school than wealthier parents, and they are also more satisfied when their children attend private schools than schools in any other sector. The same is true for parents of all ethnic backgrounds, whether they live in the city, the suburbs, or rural areas.


Parental satisfaction levels do not conclusively prove that students are receiving a better education at any given school, but neither do standardized test scores. As Tyler Cowen reminds us, “how the buyers like the product is the fundamental standard used by economists for judging public policy.” Parental satisfaction should not be the only metric that policymakers consider, but it should be chief among them. And on that metric, the evidence is clear and conclusive: parents prefer schools that they choose for their children.

Technocratic attempts to determine school quality using quantifiable and standardizable metrics like reading and math scores fail to capture a wide range of outcomes that we want from education. Moreover, when such narrow metrics are used to reward and punish schools, they can create perverse incentives that narrow curricular options and stifle innovation. By contrast, parents consider a wider variety of metrics, both quantifiable and non-quantifiable.

Policymakers should work to empower parents with a wider range of educational options through policies like education savings accounts, and education policy wonks should direct their efforts toward building institutions—like independent certifiers, expert reviewers, and platforms for student and parent reviews—that help parents make informed decisions. That is the surest way to foster innovation and improve the quality of education available to our nation’s children.

The so-called English Rule on legal fees, better termed the rest-of-the-world rule, requires the losing party in a lawsuit to compensate the prevailing party for some of the costs it has laid out having to prove that it was in the legal right. Over centuries around the globe the rule has shown itself consistent with the interests of justice (since it helps to make whole parties whose actions and legal claims were vindicated) and has generally improved incentives in litigation by discouraging speculative claims and defenses, narrowing issues, and promoting settlement.

The organized lawyers of one nation, however, have remained stubbornly resistant to loser-pays: those in the United States. There are, to be sure, some notable exceptions: Alaska has practiced a form of the rule since its days as a territory, and “offer of settlement” variants, invoked after litigants turn down an offer and then do less well at trial, have made some headway lately. Since legislators in several states, especially out West, have shown an interest in promoting the loser-pays principle, you’d think there would be faster progress. Yet such legislative declarations are often foiled when court systems interpret guidance language narrowly or unsympathetically so as to restrict fee shifts to a relatively few outrageous or abusive cases. 

That was the situation in Idaho until this fall. Since 1979 the Idaho Supreme Court had followed a rule directing courts to deny fee awards except in cases that were “brought, pursued or defended frivolously, unreasonably or without foundation.” Eight years later, in a 1987 enactment, the state’s legislature declared its intent that “winners in civil cases have ‘the right to be made whole for attorney’s fees and costs when justice so requires,” on the face of it a broader standard. A lot of good that did: for nearly 30 years, the high court in Boise refused to take the hint and stuck with its old standard.

Until now. On September 28, in the case of Hoffer v. Shappard, the Idaho Supreme Court announced that it would at last yield to “the clear intention of the legislature” and adopt, for cases pending as of next March 1, a more generous fee standard. It will recognize that “prevailing parties in civil litigation have the right to be made whole for attorney fees they have incurred ‘when justice so requires’ ” and will accord “broad authority to judges overseeing civil actions to award reasonable attorney fees.”

Critics, as well as dissenters in the 3-2 ruling, are predicting the worst. Their concerns are summed up in Betsy Russell’s report in the Spokane Spokesman-Review (which also generously quotes me). As I note, there are genuine risks ahead: experience suggests that courts in a fee-shift system must be on guard to check lawyers’ temptation to gold-plate fee requests, and the high court or legislature should step in to cabin discretion if lower court judges head off in such different directions that fee outcomes start to vary arbitrarily from one courtroom to the next. Loser-pays systems typically develop mechanisms to handle cases of split or partial victories, and Idaho should be prepared to do so as well.

Those important points aside, I’m rooting for the Court’s new approach to succeed, and hoping that Idaho legislators, trial judges, and lawyers will cooperate in coming months to help make that happen.


The fog of war, coupled with the output from multiple propaganda machines, makes it difficult to determine which side has the upper hand in any conflict. After the fall of Aleppo, it appears that President Bashar al-Assad’s forces are getting the upper hand. But are they?

The best objective way to determine the course of a conflict is to observe black market (read: free market) exchange rates, and to translate changes in those rates via purchasing power parity into implied inflation rates. We, at the Johns Hopkins-Cato Institute Troubled Currencies Project, have been doing that for Syria since 2013.

The two accompanying charts—one for the Syrian pound and another for Syria’s implied annual inflation rate—plot the course of the war. It is clear that Assad and his allies are getting the upper hand. With their recent victory in Aleppo, the black-market exchange rate has moved in Assad’s favor and, likewise, inflation has continued to fall.

The 2016 presidential election took its toll on friendships around the country, but particularly among Democratic women. Fascinating new research from the Public Religion Research Institute (PRRI) finds that Democratic women are three times as likely as Republicans to say they blocked, unfriended, or unfollowed a person on a social networking site because of what they posted about politics: 30% versus 9%.

Democratic men (14%) are little less than twice as likely as Republican men (8%) To say they ‘unfriended’ someone. Democratic women (30%) are three times as likely Republican women (10%) to say they’ve done the same. Among all Americans the number stands at 13%.

You can find the full report at PRRI here.

Last week, the National Highway Traffic Safety Commission (NHTSC) formally proposed to mandate that all new cars be equipped with “vehicle-to-vehicle” (V2V) communications, also known as connected-vehicle technology. This would allow vehicles stuck in traffic to let other vehicles know to take alternate routes. It would also allow the governments—or hackers—to take control of your car anytime they want.

The good news is that the Trump Administration will take office before NHTSC has a chance to put this rule into effect, and may be willing to kill it. The bad news is that this rule will feed the paranoia some people have over self-driving cars.

This article, for example, considers self-driving cars to be a part of the “war on the automobile” because they offer an “easy way to track the movements of individuals in society.” In fact, the writer of the article is confusing self-driving cars with connected vehicles. As I’ve previously noted, none of the at least 20 companies working on self-driving cars or software appear to be making V2V an integral part of their systems. This is mainly because they don’t trust the government to install or maintain the infrastructure needed to make it work but also because self-driving cars don’t need that technology.

There are good reasons to be paranoid about connected-vehicle mandates. First, they will give government the ability to control your car, and some governments in the United States have shown that they are willing to use that control to reduce your mobility. The state of Washington, for example, has mandated a 50 percent reduction in per capita driving by 2050. This is a state that has forbidden people to build homes on their own land if they live outside of an urban-growth boundary. If they can’t reduce per capita driving through moral suasion, it is not too much of a stretch to imagine that they will just turn peoples’ cars off after they have driven so many miles each month.

Second, if every car uses exactly the same vehicle-to-vehicle software, they will be incredibly vulnerable to hackers. Remember that hackers figured out how to remotely control a Jeep that Chrysler had wired to the cell phone network. Chrysler responded by recalling 1.4 million cars to install a firewall between the network and the car’s operating system. But now the government wants to mandate that all cars connect their operating systems to the cell phone or other wireless network, with no firewalls allowed.

While the risks of mandatory V2V systems are significant, the benefits are tiny. Marc Scribner of the Competitive Enterprise Institute notes that, “As NHTSA readily admits, hypothetical safety benefits of the mandate will be trivial for the next 15 years, at which point far superior automated vehicle technology may be deployed to consumers,” especially if manufacturers aren’t locked into technologies prescribed by the government.

People should not be paranoid about self-driving cars because none of the technologies required for self-driving cars would allow someone to remotely control your car. But people should be paranoid about V2V communications, especially those mandated by the government. Some auto makers are already offering various connected technologies with their cars, such as OnStar, which leaves it up to consumers whether they want to buy those kinds of systems and gives manufacturers incentives to keep their systems hack-proof. But government mandates for connected vehicles are both dangerous and pointless.

Although public opinion data shows stark partisan divides in evaluations of police performance, a Cato Institute/YouGov survey shows that Americans—regardless of partisanship—are worried for police safety.

Two-thirds (65%) of respondents say that police officers have “very dangerous” jobs, 30% say police jobs are “somewhat dangerous,” and only 5% say their jobs are not very dangerous. Concerns about police safety extend across partisan groups. Six in 10 Democrats and independents as well as 7 in 10 Republicans think police jobs are “very dangerous.” 


Although concern for police safety is bi-partisan, Republicans are far more worried than Democrats and independents that the police are being disrespected. More than three fourths (77%) of Republicans think that people show “too little respect” for the police these days. In contrast, only 45% of Democrats agree—a 32 point margin. Independents fall in between with 56% who believe people don’t show enough respect for the police. This pattern is not simply due to differences in partisan racial composition: white Republicans are 28 points more likely than white Democrats to worry the police are being disrespected (78% vs. 50%).[1]

Given these data, it’s less surprising that 82% of Republicans believe there is a war on police today. In contrast, 49% of Democrats agree—a 33-point margin.

Find the full public opinion report here.

These data suggest that when people talk about there being a “war on police,” for the most part, they aren’t talking about how dangerous the job is. Most Americans—Republican, Democrat, or otherwise—already believe that police have dangerous jobs. Instead, the “war on police” that Republicans are worried about is rhetorical—they believe police officers aren’t being adequately respected by the public.

There has been a temptation for police reformers to respond to claims that there is a “war on police” by providing facts and figures about how fatal occupational injuries are higher in other occupations like taxi driving, truck driving, or roofing, or how police fatalities have been on a downward trend for the past 35 years, with 2015 being one of the safest years for law enforcement. But this is not what the perceived “war on police” is all about. It’s about police not getting the respect Republicans think they deserve.

Why do Republicans care more than Democrats about people showing respect for the police? Social psychologists have found that individuals who have an above average desire for social order tend to believe that society will breakdown and devolve into chaos without strong authority figures to maintain order.[2] Consequently, these individuals tend to have greater respect for authority figures who they believe help maintain social stability. While nearly everyone cares about social stability and respecting authority to some degree, this is a more salient concern for conservatives.[3]

In fact, Republicans (42%) are nearly twice as likely as Democrats (25%) to score in the highest quartile of our Respect for Authority Index (RAI), which is based on answers to three questions that measure people’s general respect for authority without out asking about police.

“Law and order” conservatives who look to the police to prevent chaos may fear that criticizing them, or not showing them adequate deference, may undermine their legitimacy and authority—thereby fostering social disorder.[4]

Consequently, those interested in police reform may be more effective by making it clear they support the police and avoid responding to claims that there is a “war on police” by saying there is no physical war on police. Instead, acknowledge the real challenges police officers must face and demonstrate how reform will help police officers do their jobs more safety and effectively. Furthermore, show that police reform can strengthen police legitimacy by restoring public confidence in the police. This by extension will bolster the legitimacy of the law.

For public opinion analysis sign up here to receive Cato’s upcoming digest of Public Opinion Insights and public opinion studies.

The Cato Institute/YouGov national survey of 2000 adults was conducted June 6–22, 2016 using a sample drawn from YouGov’s online panel, which is designed to be representative of the U.S. population. YouGov uses a method called sample matching, and restrictions are put in place to ensure that only the people selected and contacted by YouGov are allowed to participate. The margin of sampling error for all respondents is +/-3.19 percentage points. The full report can be found here, toplines results can be found here, full methodological details can be found here.


[1] Similarly, Hispanic Republicans are 27 points more likely than Hispanic Democrats to worry people aren’t showing enough respect to police (71% vs. 44%). However, black Republicans (35%) are about as likely as black Democrats (39%) to worry the police aren’t receiving adequate respect. This is a familiar pattern we’ve written about previously where black Republicans and black Democrats have similar views of the police even though white and Hispanic Republicans have more positive views than white and Hispanic Democrats. These data about perceptions of police being disrespected among black and Hispanic Republicans and Democrats come from combining the June 2016 and November 2015 national surveys (N=4000), which offer greater precision and smaller margins of error for subgroups. (Unweighted: Black Republicans=45, Hispanic Republicans=165, Black Democrats=630, Hispanic Democrats=409.) Results have been weighted to be representative of the national population.

[2] See Karen Stenner, The Authoritarian Dynamic (Cambridge: Cambridge University Press, 2005), Jonathan Haidt, Jesse Graham, and Craig Joseph, “Above and Below Left-Right: Ideological Narratives and Moral Foundations,” Psychological Inquiry 20 (2009): 110-119. Jonathan Haidt, The Righteous Mind: Why Good People Are Divided by Politics and Religion (New York: Pantheon Books, 2012). Jonathan Haidt and Jesse Graham, “When Morality Opposes Justice: Conservatives Have Moral Intuitions that Liberals May Not Recognize,” Social Justice Research 20 (2012): 98-116. Jesse Graham, Jonathan Haidt, and Brian A. Nosek, “Liberals and Conservatives Rely on Different Sets of Moral Foundations,” Journal of Personality and Social Psychology 98, No. 5 (2009): 1029-46.

[3] Ibid.

[4] For example, see Heather MacDonald, “The Danger of the “Black Lives Matter” Movement,” Imprimis 45 (2016),….

When Simon Tam formed an all Asian-American rock band, he knew it needed a name that would capture the band’s identity and ethnic pride. He chose “The Slants” to, in his own words, “take on these stereotypes that people have about us, like the slanted eyes, and own them.” The Slants knew they might have some critics, but they weren’t expecting that one would be the U.S. Patent and Trademark Office (PTO), which punished them for their naming choice by denying their trademark application.

The PTO acted under a provision of the Lanham Act (the federal trademark statute) that bars the registration of any trademark “which may disparage … persons, living or dead, institutions, beliefs, or national symbols.” After a three-judge panel of the U.S. Court of Appeals for the Federal Circuit upheld this denial, the full court reheard the case and reversed, striking down the disparagement clause as violating the First Amendment. The case is now before the Supreme Court.

Cato, joined by a basket of deplorable people and organizations that includes satirist P.J. O’Rourke, former ACLU president Nadine Strossen, and Flying Dog Brewery (which makes the tasty “Raging Bitch” Belgian-style IPA), has filed a brief – our third annual “funny brief” – urging the Court to affirm the Federal Circuit. We ask a simple question: Should the government get to decide what’s a slur?

Do we really want PTO lawyers determining which messages are “disparaging” and which aren’t? For example, Cato’s brief was written by a cracker, a dago, and a frostback. Can we get away with saying that? It depends whom you ask. Is “water buffalo” a racial slur? What about “niggardly” or “tar baby”? Enormous controversies have raged over exactly these questions, yet the PTO thinks it can draw an objective line.

Even if we could determine which words are actually “disparaging,” should the government really be putting its thumb on the scale to take such controversies out of the public square? Insulting terms and disparaging language have played an important role in American history. Why should we discourage coining phrases like the “Know-Nothing Party” when, for many, they have captured a truth more than any “official” name ever could?

Moreover, the process of reclaiming slurs has been crucial to the development of many groups’ identities. Jesuits, Methodists, Mormons, and Quakers all owe their popular names to reclaimed terms that were originally disparaging. The Slants, just like N.W.A., Pansy Division, the Hillbilly Hellcats, and many bands before them, are engaging in exactly the same proud tradition. The disparagement clause places an economic penalty on brands that choose to express a certain message—the definition of an unconstitutional condition.

Could the government deny copyright protection to a book it doesn’t like? Could the police decline to protect a demonstration with which they disagree? Allowing the disparagement clause to stand would raise these and other troubling questions. Instead, the Court should draw a clear line, get rid of the disparagement clause, and let The Slants rock on!

The Supreme Court will hear argument in Lee v. Tam on January 18.

Economist Jeffrey Sachs of Columbia University recently made this claim (emphasis mine):

“We’re so rich in our total production and in our capacities to do things that we could solve absolutely fundamental challenges, such as ending extreme poverty or addressing climate change or preserving biodiversity without much effort … it cannot be the most important issue in the world whether the U.S. grows at another 3% or 3.5% or 2.9% a year, when over the last 65 years there’s been no discernible rise in wellbeing

That is the theme of his new book, The Origins of Happiness.

By “we” Sachs appears to mean the U.S. and other rich countries and calls for their governments to engage in wealth transfers to poor countries and a plethora of environmental projects. What he does not seem to realize is that humanity is already making swift progress—through the free actions of billions of individuals—toward ending poverty and better preserving the environment.

As global GDP per person has skyrocketed, global poverty has plummeted. Fewer people live in extreme poverty than ever before, both as a share of the population and in absolute terms. In other words, although there are more people alive, the number of people living in extreme poverty is lower than it has even been. If current trends continue, extreme poverty will be practically eliminated by 2030.

After China liberalized its economy, hundreds of millions of its people escaped extreme poverty. Once India moved towards economic freedom in the early 1990s, its population saw a remarkable decline in poverty as well. It’s tempting to want to make this story about “us” in the U.S. and other rich countries acting as saviors for the global poor, but the reality is that people in the developing world are lifting themselves out of poverty wherever they have the economic freedom to do so. In contrast, no country has ever become rich through foreign aid, which is plagued by many problems.

As incomes rise and people move past worries of basic survival, more of them come to care about the environment. Technological progress is also helping to improve environmental stewardship, by boosting agricultural yields per hectare of land and increasing water productivity, among other things. We are now witnessing numerous trends that give cause for environmental optimism, from expanding forest area in China to falling emissions in the United States.

Once again, Sachs’ well-meaning call for state intervention seems misguided. The U.S. emits less CO2 today not because of EPA regulations or costly subsidies for unreliable wind and solar energy, but because the market delivered a technological breakthrough (hydraulic fracturing) that reduced reliance on more polluting energy sources.

Despite Sachs’ protests, there has been a discernible rise in wellbeing over the last 65 years. Even the amount of progress achieved just in my own lifetime is astounding. Sachs’ book presents data suggesting that higher incomes and better education do not heighten people’s happiness as much as sound health and strong interpersonal relationships do. From this he concludes that despite being richer and better educated, people today are not any better off than their fore-bearers.

Actually, even in terms of health and interconnectedness, we are still better off today. Consider health. Life expectancy is at an all-time high. More infants survive to see their first birthday and more mothers survive childbirth. Cancer takes the lives of fewer men and women. We lose fewer lives to droughts, hurricanes, lightning, tornadoes and extreme temperatures. Safety advances also mean fewer traffic fatalities and fewer fatal plane crashes. Infectious diseases that were once common causes of death have been defeated by better treatment and prevention methods.

As for relationships, despite having more disposable income, today people work less and enjoy more leisure time to spend with loved ones. In 1950, an average American worker worked 1,983 hours in a year. In 2016, that had fallen to 1,774. That’s 209 fewer hours of labor—and 209 more hours to spend with family and friends.

Technology, although much maligned for providing distracting alternatives to social interaction, also makes it possible to remain in contact with others even across vast distances. Access to electricity, mobile phones and the Internet has never been more widespread, connecting more lives across the planet.

Technology not only makes it easier to maintain relationships, but to form them. Just last month I attended a wedding where the bride and groom had first met through a dating app on their smart phones. They were not unusual—online dating now brings about more than a third of U.S. marriages, and the rapid spread of communications technology has also facilitated the formation of many friendships.

To make his case Sachs also cites data showing that people don’t identify as happier today than a half-century ago. If true, that is perhaps evidence in favor of the “hedonic treadmill” theory of psychology, which claims that people quickly get used to improvements in their lives and take them for granted. A year after winning the lottery, for example, many people are no happier than they were previously. In a sense, just being alive right now means you’ve won the lottery—the average American today is richer in many ways than John D. Rockefeller a century ago.

Sachs is too quick to dismiss the incredible progress that humanity has made by practically every measure, and also too quick to assume that government intervention is the best way to bring about progress. You can find even more data showing how far humanity has come at

The incoming Secretary of Energy, Rick Perry, has talked in the past about abolishing the department that he will be running. President-elect Donald Trump has expressed skepticism with some types of energy subsidies. However, Trump’s campaign website mentioned support for “continued research into advanced energy technologies.”

As they consider their energy policy approach, the Trump team should look at the past record of federal spending, which I discuss in a new study on energy subsidies at

The government has been subsidizing conventional and renewable energy for decades. Department of Energy (DOE) spending has been fraught with failure. Billions of dollars have been wasted on ill-advised and mismanaged projects. The study includes nine case studies of DOE failure, from the Clinch River Breeder Reactor debacle in the 1970s to the recent Solyndra scandal.

There is no need for federal energy subsidies. U.S. energy markets have changed dramatically over the past decade. Technological advances in the oil and natural gas industries—particularly hydraulic fracturing and horizontal drilling—have led to large increases in domestic production. U.S. imports of oil and gas have plunged, while exports have increased. U.S. businesses and consumers have benefited as gasoline and natural gas prices have fallen.

This energy revolution was driven by private innovation and competitive markets, and it has created environmental as well as economic benefits. Cleaner natural gas, for example, is replacing coal as a fuel source in U.S. electricity production.

The oil and gas revolution shows that American businesses can generate innovations and progress with their own resources. Furthermore, investors and major corporations have pumped billions of dollars into alternative energy technologies in recent years. The U.S. energy sector is vast, dynamic, and entrepreneurial, and it does not need subsidies to thrive.

New York Times columnist David Leonhardt claims, “G.D.P. growth has been stronger after recent tax increases on the wealthy.”  To prove it he writes,  “The economy has performed better under Democratic Presidents during the last half century.”  

This might make sense if Eisenhower and Nixon had cut tax rates for the wealthy and JFK and LBJ raised them.  But the opposite happened.  It might also make sense if Clinton had raised the capital gains tax rate in 1997 rather than cutting it from 28% (under Reagan-Bush) to 20%. 

President Eisenhower put the highest tax rate up to 92% in 1953-54 and the lowest rate to 22%.  By contrast, President Kennedy’s 1963 plan for “getting America moving again” proposed to cut income tax rates to 14-65%.  As enacted by LBJ after Kennedy’s assassination, the top tax rate was reduced to 70% and the lowest to 15%.  These rate cuts came quickly, unlike Reagan’s – which were was unwisely postponed until 1983-84. 

Economic growth was indeed twice as fast (5.2%) under the Kennedy-Johnson’s top tax rate of 70% than it was under Eisenhower’s top tax rates of 91-92% (2.5%).  That may suggest “Kennedy Republicans” (like Jack Kemp) are wiser than pro-tax Eisenhower Democrats, as I put it in The Wall Street Journal (“Avoiding the Eisenhower Legacy” Nov 17, 1992). My 1992 analysis may have inspired a famous President Clinton outburst to his staff: “’I hope you’re all aware we’re all Eisenhower Republicans,’ …his voice dripping with sarcasm. ‘We’re all Eisenhower Republicans here…” 

President Carter did try to raise tax rates on the wealthy, mostly by raising the tax on capital gains to nearly 40% by 1977.  As with FDR in 1938, Democrats in Congress rebelled. On July 3, 1978, an alarmed Washington Post editorial said, “THE WILD POPULARITY of the Steiger amendment among the Democrats in Congress is a remarkable Phenomenon. The Steiger amendment, you will recall, cuts capital-gains taxes for a small number of citizens, most of whom roost comfortably on the top rung of the income ladder…  Mr. Carter says that he will veto the bill.”  But he didn’t. 

The capital gains tax was again slashed from 28% to 20% in August 5, 1997, with the support of President Clinton and over 80% of the Democrats in the House and Senate.

If higher tax rates on the wealthy produce stronger GDP growth, why was that not also true from 1932 to 1936?  Growth was certainly not stronger after June 6, 1932, when President Hoover raised the top tax rate from 25 percent to 63 percent, doubled the estate tax and raised corporate taxes. And growth was not stronger after the Revenue Act of  June 22, 1936, which briefly raised tax rates on capital gains and profits until a Democrat Congress (fearful of being blamed for the deep 1937-38 recession) repealed it.  

Those who misunderstand the nonpartisan history of tax policy successes and blunders are doomed to repeat the blunders.

Rep. Peter King (R-NY), fresh out of a meeting at Trump Tower yesterday, said he pressured President-elect Donald Trump to implement a nationwide surveillance program directed at Muslim Americans “similar to what” existed in the New York Police Department’s Demographics Unit under Commissioner Ray Kelly.

Rep. King insisted that the NYPD program “which unfortunately the civil liberties union and The New York Times didn’t like … [was] very effective in stopping terrorism and really should be a model for the country.”

There is little evidence that the program “stopped terrorism,” and Rep. King did not provide any revelations. The evidence we do have (much of it from agents themselves) points in the opposite direction. In more than a decade of pervasive surveillance, the program simply didn’t work.

I wrote about that NYPD program back in March, when Sen. Ted Cruz (R-TX) made a similar suggestion following a terrorist attack in Brussels.

 [T]he police infiltrated mosques, set up surveillance cameras around Muslim-owned businesses and residences, went undercover to monitor everyday conversations, and even infiltrated student groups at schools as far away as Yale and the University of Pennsylvania in order to monitor what students talked about, who they spoke to, and how often they prayed.

The end result of years of Demographic Unit surveillance on American Muslims was… nothing.

No convictions, no prosecutions, and, according to Assistant Chief Thomas Galati, not even a single legitimate lead.

Instead of policing murders and rapes in New York City, agents were busy with things like whitewater rafting trips to upstate New York, where an officer who infiltrated a Muslim student organization took detailed notes of how many times the students prayed and who they talked to.  

While the program failed to generate actionable intelligence about terrorists, it did produce millions of dollars worth of costly litigation over the dubious constitutionality of suspicionless spying against religious communities.

Aside from the inefficacy of the program, it remains unclear how Rep. King expects the president to implement such a program nationwide. Given manpower limitations on federal law enforcement, the most likely avenue for nationwide implementation would be the expansion of federal law enforcement grants, such as the Urban Areas Security Initiative, in order to entice state and local law enforcement agencies to construct surveillance efforts similar to the NYPD program.

UASI grants, which are ostensibly intended to keep Americans safe from terrorists, have been used by state and local police to procure military-grade vehicles, weapons and surveillance technology without going through their local appropriations processes.  Aside from outfitting local police forces like paramilitary units, there is little evidence that such grants have made Americans safer.  In December of 2012, then-Senator Tom Coburn (R-OK) released a damning report on the UASI program, arguing that billions of dollars in federal grants had not made American law enforcement any better at protecting against or reacting to terrorist attacks.

In the sense that terrorism grant programs have already wasted billions of tax dollars and police man-hours while distorting local law enforcement priorities, Rep. King’s surveillance program is a perfect fit. But if we want our federal, state, and local law enforcement agents spending their time policing actual crimes rather than counting how many times young Muslims pray while whitewater rafting, New York’s failed surveillance program should be left in the past.  The NYPD itself agrees.


For more on domestic surveillance in the War on Terror:

This week Cato hosted our annual Surveillance Conference.  My colleague Patrick Eddington moderated a panel on “countering violent extremism,” which is a government program designed to give officials advanced warning of the alleged radicalization process of young Muslims.  The panel included remarks from Maya Berry of the Arab American Institute, Sharia Mayfield of the Oregon Department of Justice (whose father Brandon was falsely accused by the FBI of taking part in the Madrid train bombings), Arjun Singh Sethi of the Sikh Coalition, Mike German of the Brennan Center for Justice’s Liberty and National Security Program, and Luther Reynolds of the Montgomery Co. Police Department. 



Yesterday I shared some very good news about Brazil adopting a spending cap.

Today, I also want to share some good news, though it’s not nearly as momentous.

Indeed, it’s not even good news. Instead, it’s just that some bad news isn’t as bad as it used to be.

I’m referring to the fact that the nation’s capital region used to be home to 10 of the nation’s 15-richest counties.

That was back in 2012, and I viewed it as a terrible sign that the DC area was packed with overpaid bureaucrats, oleaginous rent seekers, and government cronies, all of whom were enjoying undeserved wealth financed by hard-working taxpayers from the rest of America.

Well, now for the “good news.”

Terry Jeffrey has a column for CNS News about the current concentration of wealth in the national capital area.

The four richest counties in the United States, when measured by median household income, are all suburbs of Washington, D.C., according to newly released data from the Census Bureau. …Of the Top 20 richest counties in the nation, nine are suburbs of the city that serves as the seat of a federal government that in fiscal 2016 taxed away $3,266,774,000,000 from the American people, spent $3,854,100,000,000, and ran a $587,326,000,000 deficit.

The reason this awful data is good news (relatively speaking) is that the DC region is now home to “only” nine out of the 20-richest counties rather than 10 out of the 15-richest counties.

Here’s Terry’s list, which I’ve augmented by highlighting the jurisdictions that are home to many of the bureaucrats, lobbyists, and other insiders that are living on Easy Street thanks to the federal leviathan.

I also awarded a star to Los Alamos County in New Mexico since that’s another jurisdiction that has above-average income because of Uncle Sam.

To be sure, not every private-sector worker in these rich counties is a cronyist, lobbyist, or rent seeker, so it’s difficult to accurately say what share of the income and wealth in these various counties is earned and how much is a transfer from government.

But we can say with confidence that the bureaucrats who are over-represented in these jurisdictions get a lot more compensation than their counterparts in the private sector. Chris Edwards has been relentless in his efforts to document excessive pay for bureaucrats.

Since we’re on this topic, let’s enjoy some additional bits of data about the cushy life of our bureaucratic overlords.

In addition to lavish pay, federal employees also receive gold-plated benefits. Most of the money goes for pensions and healthcare, but you’ll be happy to know the feds have also figured out more creative ways of pampering the protected class.

…a variety of federal agencies in a number of locations provide “free” yoga classes to employees. But these classes are not free; since 2013, they have cost taxpayers over $150,000. The State Department spends $15,000 for yoga in the nation’s capital. A yoga instructor in from Berkeley, California is paid $4,000 a year from the Department of Agriculture’s Research Service. Of course, the Department of Energy…has gotten in on taxpayer financed yoga; but for $11,000 annually they also offer pilates at a California location. …The Railroad Retirement Board spends $11,000 annually for yoga classes for office workers at its Chicago headquarters.

And many federal bureaucrats have figured out how to enjoy another fringe benefit of federal employment.

The federal government is full of people pulling in six-figure compensation packages who spend their days…watching porn on government computers… One compulsive porno-phile over at the EPA was watching so much porn that it caught the attention of the Office of the Inspector General — i.e., he was watching so much porn that a federal official noticed — and when the OIG investigator showed up to see what the deal was, you know what that EPA guy did? He kept right on watching porn, with the OIG inspector in his office. At the FCC, bureaucratic home of the people who enforce such obscenity laws as we have, employees routinely spend the equivalent of a full workday each week watching porn. Treasury, General Service Administration, Commerce — porn, porn, and more porn. Of course nobody gets fired. Nobody ever gets fired. …Federal employees, according to OIG reports, also spend a great deal of time browsing online-dating sites (apparently without much success) and shopping.

By the way, the jab about “nobody gets fired” isn’t 100 percent accurate.

But if you want lots of job security, then latch on to the federal teat.

Federal workers are far more likely to be audited by the IRS or get arrested for drunk driving than they are to be fired from the civil service payroll for poor performance or misconduct. The odds are one-in-175 for the IRS audit and one-in-200 for the drunk driving arrest, while the odds for a fed to be fired in a given year are one-in-500, according to the Government Accountability Office. …Private sector workers face just the opposite situation. They have a roughly one-in-77 chance of being involuntarily terminated — the Bureau of Labor Statistics doesn’t distinguish between fires and layoffs — in a given month.

By the way, bureaucrats are sometimes forced into early retirement as “punishment” for misbehavior.

All things considered, though, we serfs shouldn’t complain too much.

After all, would it be proper to grouse about a group that does superlative work?

In the ranks of the federal government, 99 percent are really good at their jobs — and almost two-thirds exceed expectations or do outstanding work. That’s the conclusion of a new report by the Government Accountability Office, which also found that 78 percent of high-level civil servants — those in GS grades 13 through 15 — were given top performance scores of outstanding or fully successful….The glowing picture of everyone in calendar year 2013, the most recent data available to auditors, is…good news for federal agencies.

In reality, of course, these glowing performance reviews are highly suspect.

…a more likely reality to many in and outside of government. Rather than so many federal workers being exceptional, the system for rating them isn’t working right. …Federal workers themselves have long complained in annual surveys that their agencies do not deal with poor performers, hurting morale and efficiency. Lawmakers complain that it is nearly impossible to fire these employees, but bills to take away some of their their rights to appeal bad reviews have languished in Congress. …“Apparently the federal bureaucrats grading one another think virtually everyone who works for the government is doing a fantastic job,” Rep. Jeff Miller (R-Fla.), chairman of the House Committee on Veterans’ Affairs, said in a statement. “But given the dysfunction we’ve seen throughout the federal government over the last several years, that can’t possibly be true,” Miller said.

Of course it’s not true.

Misbehavior and malfeasance at bureaucracies such as the IRS and VA doesn’t prevent high ratings and generous bonuses. Instead, it’s almost as if doing the wrong thing is a job requirement.

Isn’t big government wonderful?

Survey data shows that black Republicans and Hispanic Republicans are far less likely than white Republicans to believe the nation’s criminal justice system is impartial.

I was able to combine two surveys conducted by the Cato Institute that included the same question on impartiality in the justice system to obtain a much larger sample size.[1] This offers an opportunity to take a look at how Republicans who are black, white, and Hispanic think about the justice system. Why do this? Essentially this “controls for” or accounts for the effect of political values when looking at how different racial/ethnic groups evaluate bias in the justice system.

When combining the surveys we find that 42% of Americans think the system in the U.S. treats white, black, and Hispanic Americans equally. A plurality (46%) think the system gives preference to white Americans and 12% think the system treats minorities better. 

Republicans (64%) are far more likely to think the system treats everyone fairly than Democrats (21%) and independents (43%). However, black and Hispanic Republicans are far less confident than white Republicans. Only 15% of black Republicans think the justice system treats everyone equally, compared to 67% of white Republicans. Hispanic Republicans fall in between with slightly less than half (45%) who think the system is fair. Consequently, Republicans who are white, Hispanic, or black, have dramatically different views of racial bias in the justice system.

In contrast, Democrats are far more similar: 26% of white Democrats, 17% of Hispanic Democrats, and 13% of black Democrats believe the justice system treats all people equally.

Looking at this data altogether, we notice a pattern: white Republicans (67%) are 16 points more likely than white independents (51%) and 41 points more likely than white Democrats (26%) to believe the system is fair. We observe a similar but attenuated pattern among Hispanics: Hispanic Republicans (45%) are 13 points more likely than Hispanic independents (32%) and 28 points more likely than Hispanic Democrats (17%) to believe the system is fair. However, black Republicans (15%) are about as likely as black Democrats (13%) and black independents (16%) to think the justice system is impartial. Ultimately, white Republicans are the only group that solidly believes the justice system treats all citizens equally before the law.

Why do Republicans who are black, white, and Hispanic have such different views of racial bias in the justice system? There could be several reasons, but the most obvious one to consider is that African Americans may be having different personal or vicarious experiences with the system.

Critics who argue perceptions of racial bias in the justice system are false contend that such perceptions are merely the result of “radical” “anti-cop ideology” or “elites’ investment in black victimology.” But these reasons tend to be associated with the political Left, not the political Right. How many Republicans (black, white or Hispanic) could be identified as “radical” who embrace “victimology”? A better explanation might be that people feel the system is biased based on their experiences rather than simply because they are inclined to rebel against authority figures.


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[1] Question wording: “Just your impression, do you think the criminal justice system in the United States treats white Americans more fairly than black and Hispanic Americans, treats black and Hispanic Americans more fairly than white Americans, or are they treated about the same?” Data about perceptions of systemic bias by race/ethnicity and partisanship come from the combined June 2016 and November 2015 national surveys (N=4000), which offer greater precision and smaller margins of error for subgroups. (Unweighted: Black Republicans=45, Hispanic Republicans=165, White Republicans=1193, Black Democrats=630, Hispanic Democrats=409, White Democrats=634.) Results have been weighted to be representative of the national population.

Prior to attacking intelligence assessments on Russian hacking and meeting with Kanye this week, the president-elect went on a bit of a defense jag. Monday, @realDonaldTrump bashed Lockheed’s F-35 joint strike fighter program for its “out of control” price-tag.  He said the same of Boeing’s Air Force One replacement last week. Saturday, he vaguely tweeted his approval for a Washington Post story claiming that the Pentagon “buried evidence” that it wastes $25 billion a year. Sunday, on Fox News, Trump criticized both aircraft and implied that their excessive cost results from a corrupt practice: the revolving door, where officials manage weapons programs and then go work for the manufacturer.

Trump’s tweets temporarily lowered defense contractors’ stock prices, prompting speculation that he’s paying CEOs back for criticism, or worse. But Trump’s comments aren’t new. He attacked the F-35 during the campaign. He claimed that he could fund a massive military buildup by “conducting a full audit of the Pentagon, eliminating incorrect payments, reducing duplicative bureaucracy, collecting unpaid taxes, and ending unwanted and unauthorized federal programs.”  He promised to “balance our budget,” by eliminating “waste, fraud and abuse” in the federal government. He repeatedly suggested that corporate interests—pharmaceutical, oil, finance and defense companies,” have hijacked government and added to its cost.

Trump’s views on Pentagon waste then seem less whim than an outgrowth of his approach to public policy. Does that mean Trump is set to “crack down” on Pentagon spending, “make war on the defense industry or take on the “military-industrial complex?” There are several reasons why the answer is not really.

One is Trump’s appointments. As in other areas, they conflict with his campaign rhetoric. Trump famously said he knows more about ISIS than the generals, but seems inclined to defer to those that he deems “his.”  That’s especially true of his Secretary of Defense pick, retired general James Mattis, who has mostly conventionally-hawkish views on military spending. For example, he repeats the false claim that sequestration, which only occurred once since the 2011 Budget Control Act, in 2013, annually slices the defense budget across-the-board.  He even called sequestration a bigger threat than any U.S. enemy, while testifying in favor of a military spending boost. Mattis casts doubt on Trump’s commitment to defense reform in another way: he raced through the revolving door, going to work for General Dynamics upon his retirement from military service in 2013.

Another reason to doubt that Trump can successfully mine “waste, fraud and abuse” for savings is that it’s mostly fool’s gold. Fraud and abuse amount to small potatoes in Pentagon terms. Waste is tough to cut because people disagree on what it is. One man’s waste is another’s (usually a committee chair or Undersecretary) vital national security program. Going after waste requires political fights for which Trump seems unprepared.

I made that argument last week in the National Interest:

Budget cutters like to target waste because it means savings without sacrifice. Waste has no lobby or constituency, so you lose nothing and offend no one in hunting it. But true savings, even the efficiency sort where you do the same missions for less cost, don’t come for nothing. Efficiency savings include closing bases, combining or shuttering combatant commands, cutting a nuclear-weapons delivery system, lowering personnel costs and the like. All require political fights.

Bigger savings require going after the Pentagon’s efficient pursuit of foolish goals—by reducing military missions. With fewer wars to plan and fight, we could have less force structure, build fewer weapons and pay fewer people.

That piece tried to pour cold water on the Post story that Trump tweeted. For more criticism, see my letter to the editor, Robert Samuelson’s column, and Matt Fay’s post for the Niskanen Institute.

My point isn’t that we should buy F-35s or be content with growing overhead costs in the military. The point is that saving money there is more a political challenge than a managerial one, especially the sort solved by attacking overlap or graft.  Yes, there are procurement abuses facilitated by revolving doors. But closing them wouldn’t have helped F-35. Like most problematic acquisition programs, its troubles are belief in false economies of scale gained by joint production and an acquisition system that produces excessive requirements and incentives for premature production. That system reflects the will of Congress and the military services more than that of the contractors they hire.

Yes, the Pentagon suffers from subpar accounting. But that’s largely because it’s a confederation of services and offices with their own systems. Better record-keeping will highlight excessive spending, not stop it.

Yes, there’s duplication galore in the Pentagon. The Navy’s ground force duplicates the Army in many ways, for example. But Congress is not about to abolish the Marines. And that sort of redundancy usefully offers alternative solutions to military challenges. It also allows bureaucratic competition, which can produce some of the disciplining effects that market competition provides in the private sector.

The best way to target Pentagon inefficiency is to cut its topline. The budget should remain capped, ideally at a lower level, with the Overseas Contingency Operations budget included under the cap. That would prevent it from being used as a bailout fund preventing hard choices. Lower budgets will encourage Pentagon leaders to target administrative costs to protect more important programs. The department’s drive for efficiency, which has run under the past four defense secretaries, began as last decade’s massive military buildup waned. By promising a military buildup, Trump is closing off the best path to the efficiencies that he claims will fund it.

The selection of Betsy DeVos for Secretary of Education has exposed longstanding tensions among education reformers who are united in their support for expanding educational choice but divided over the government’s role in regulating such programs.

The schism is often portrayed as being between those who support or reject “accountability,” but this isn’t quite accurate. The real disagreement is not whether there should be accountability, but to whom schools should be held accountable: parents or bureaucrats. As Lindsey Burke and I argue in a new report published by the Heritage Foundation and the Texas Public Policy Foundation, educational choice programs like education savings accounts should place the accountability for academic outcomes with parents.

For decades, the term “accountability” primarily referred, in education policy circles, to government regulations intended to ensure quality. That’s because most children attend their assigned district schools, which are not directly answerable to parents and function as de facto monopolies. As Lindsey and I explain:

A distinctive feature of monopolies is lack of accountability. Because district schools are not held directly accountable to parents, some policymakers have attempted to impose accountability through top-down government regulations. Yet decades of attempts to regulate district schools into quality have had little effect. Unfortunately, too many policymakers have still come to see centralized government regulations as synonymous with “accountability” rather than an inferior alternative to direct accountability to parents, and have therefore sought to impose similar regulations on choice programs. However, regulations designed for a monopoly system are inappropriate for a market-based system.

In a market-based system, producers are held directly accountable to consumers for results. The government sets certain rules against fraud or health and safety standards, but the consumers ultimately decide whether a product or service meets their needs. Likewise, the government could ensure that ESA funds are spent on qualifying educational products and services, but the accountability for results should lie with parents, who are in the best position to evaluate those results. Holding education providers directly accountable to parents creates a feedback loop that does not exist in more centralized, top-down systems like the district schools. As social scientist Yuval Levin has argued, this enables the system to “channel social knowledge from the bottom up rather than…impose technical knowledge from the top down.” This channeling is accomplished “through a process of experimentation, evaluation, and evolution.”

If we want an education system that makes significant improvements in quality over time, education providers must be free to innovate and parents must be free to choose the providers that work best for their own children. This system evolves over time because higher-quality providers will attract more parents and lower-quality providers will face pressure to either improve or shut down.

However, technocratic attempts to guarantee quality through imposing uniform standards can interrupt this evolutionary process.

The Price of Technocratic Accountability

The technocratic approach to accountability requires that all schools are judged according to uniform metrics, therefore the technocrats rely heavily (indeed, almost exclusively) on standardized test scores, particularly in math and language arts. The technocratic reformers want to use these scores to set a minimum standard, meaning “underperforming” schools would be excluded from receiving voucher funds–or, in the case of charter schools, be shut down entirely–even against the will of parents who still want to enroll their children there.

Let us be clear about what is at stake. The technocratic approach would eliminate a family’s least-bad educational alternative, leaving children worse off “for their own good.” For example, parents may have chosen a private or charter school that did not perform well on the state’s standardized test overall, but the school may have provided a safer environment than the local district school. Or perhaps the school was succeeding at its mission to aid the most at-risk students, but the state’s uniform “accountability” system failed to take its mission into account. The damage done to children who lose the opportunity to attend schools that their parents believe are better than the alternative is incalcuable.

We should also be realistic about the unintended consequences of over-reliance on test scores. Although standardized tests can provide parents with useful information about their child’s academic performance, using them to impose uniform standards that so narrowly define “quality” creates perverse incentives that narrow the curriculum, stifle innovation, and can drive away quality schools from participating in the choice program. As Lindsey and I explain:

When schools are rewarded or punished based on their students’ performance on math and reading tests, they have a strong incentive to divert their time and resources to tested subjects and away from others. A study by the Center on Education Policy found that the time district schools spent on subjects besides math and reading declined considerably after Congress enacted the No Child Left Behind Act (NLCB), which mandated that states require district schools to administer the state standardized math and reading tests in grades three through eight and report the results. In the five years after NCLB was implemented, approximately 62 percent of elementary district schools reported increasing the amount of time spent on English language arts and/or math, and 44 percent reported decreasing time spent on social studies, science, art and music, physical education, lunch, or recess.

The narrowing curriculum is particularly alarming because, as Jay P. Greene has noted, recent research has found that “later success in math, reading, and science depends on early acquisition of the kind of ‘general knowledge’ and fine-motor skills learned through art and other subjects.” In other words, a narrower curriculum not only deprives students of having a broader and more enriching education, but also negatively impacts their performance in the tested subjects. “If we narrow education to the mechanics of math and reading as captured by yearly testing,” Greene concludes, “we short-change the broader knowledge that is the key to academic success later.”

Mandating a single test exacerbates this phenomenon. Within the tested subjects, schools have a strong incentive to teach the concepts that will be on the mandated test. This incentive to “teach to the test” can result in a de facto curriculum. For example, if a school had been teaching math concepts A, B, and C in grade 7, but the new state test was going to cover concepts B, D, and E, the school would almost certainly drop concepts A and C in favor of D and E, even if the math teachers believe that the original curriculum was superior. Keeping the original curriculum would put their students at a disadvantage on the state test vis-à-vis students at other schools that had aligned their curriculum to the test. This standardization might make sense in a world in which there was one right way to teach math, or at least one right order to teach concepts, but that is not the case.

Again, this isn’t to say that we should do away with testing entirely. As Robert Pondiscio recently wrote, standardized tests should be “used to illuminate and inform parent choice, but not to limit it.” Tests can provide valuable information, but using the tests as the sole or primary metric of performance does more harm than good. What’s needed is a more comprehensive understanding of quality that considers the needs of individual students, not just the “typical” student, and that’s something that parents are in a much better position to determine than technocrats.

The Potential of Parental Accountability

Parents are interested in more than scores. Parents consider a school’s course offerings, teacher skills, school discipline, safety, student respect for teachers, the inculcation of moral values and religious traditions, class size, teacher-parent relations, college acceptance rates, and more. Schools held directly accountable to parents, rather than technocrats, have to take all of these factors into account.

Of course, parents need information in order to make good decisions about their child’s education. Fortunately, research has shown that the vast majority of parents from all racial and socio-economic backgrounds are willing to take several steps in order to acquire that information. This is where independent organizations can satisfy parents’ demands for information with expert reviews and ratings and by providing platforms for parents and students to share their personal experiences:

Perhaps the most popular source of expert knowledge about college is the plethora of college ratings providers, such as U.S. News & World ReportPrinceton ReviewForbesKiplinger’s, and Business Insider. These ratings offer prospective students a variety of information about student outcomes, expected earnings, course offerings, campus life, and so on. No rating system is perfect, but parents and students can compare multiple ratings to get a clearer picture of the strengths and weaknesses of different colleges and figure out which features are most important for them. Some outfits even rate the raters.

Parents and students are also relying in increasing numbers on user reviews to find the information they seek. Sites like College Times, Students Review, Rate My Professors, and Get Educated provide a platform for students to share information about their actual experiences at the college they attended.

The K-12 education sector has historically lacked high-quality sources of information about school performance, but to a large extent that is because the vast majority of students attend their assigned district school. With little to no other educational options, there has bee little parental need for information to compare competing options. And without much in the way of competition, existing private schools don’t feel great pressure to be forthcoming about performance data. However, as states implement educational choice policies, the demand for information will increase and schools that refuse to share their data will be at a competitive disadvantage. We are already seeing parents to turn organizations like and to find information about schools they are considering and we should expect to see more organizations emerge as demand increases.

In the interim, we should avoid the technocratic temptation to have the government rate schools directly. We have no good reason to believe that the government will do a better job of assessing school quality than private, third-party reviewers. U.S. News & World Report may offer crummy ratings, but the solution is having more independent reviewers (as the market has provided) rather than crowding them out with a single government rating system that is subject to political pressures.

Parents are adept at holding schools accountable when they are empowered with choices and armed with information about their options. As Matthew Ladner has shown, Arizona parents voting with their feet closed down low-performing charter schools earlier and more often than state regulators:

Arizona parents seem extremely adept at putting down charter schools with extreme prejudice. Arizona parents detonate far more schools on the launching pad compared to the number we see bumbling ineffectively through the term of their charter to be shut by authorities (or to give up the ghost in year 14 in an ambiguous fashion). Both of these things happen, but the former happens with much greater regularity than the latter. Having a vibrant system of open enrollment, charter schools and some private school choice means that Arizona parents can take the view that life is too short have your child enrolled in an ineffective institution.

There is no panacea. There is no perfect information just as there are no perfect bureaucrats or, for that matter, perfect parents. The question before us is how to design a system with imperfect people and imperfect information that will come as close as possible to providing every child with access to a high-quality education. The technocratic approach empowers bureaucrats at the expense of parents, often eliminates their least-bad educational alternatives, and creates perverse incentives that narrow curricular options. By contrast, making education providers directly accountable to parents allows for a more comprehensive understanding of quality that considers the needs of individual students and fosters greater innovation and diversity.

Rather than attempting to design systems that override parental preferences, education reformers should focus their efforts on empowering parents with more choices and work to build institutions that will help them make more informed decisions.