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The Republican tax bill’s reduced corporate tax rate is a boon for many companies. But reducing the corporate rate lowers the value of tax credits and may negatively affect businesses that rely on them. The New York Times recently described one such case and argued that the value of the Low-Income Housing Tax Credit (LIHTC) would fall and the supply of affordable housing would fall along with it.

The Times article focuses on San Francisco and reports that the falling value of LIHTC increases building costs for affordable housing. In San Francisco housing is already in short supply, so increased costs are a real concern for low-income residents and city officials.

But this concern is misplaced; LIHTC is a complex and costly tool that should be eliminated. As Vanessa Brown Calder and Chris Edwards explain, the convoluted process which housing tax credits are distributed through creates large federal and state administrative costs, results in complicated application procedures and compliance efforts, and mostly benefits corporate interests rather than low-income tenants. The program is also susceptible to fraud and abuse.

These issues contribute to significant efficiency losses. As a result, LIHTC projects are more costly on average than equivalent private projects. In the end, the program’s intended recipients may receive just 24 percent of the LIHTC subsidy. Corporate interests capture the rest.

Considering the program’s inherent problems, officials should contemplate other strategies to increase housing affordability. One option is to eliminate project-based assistance, including housing tax credits, and rely more heavily on tenant-based assistance (e.g. housing vouchers).

In the summer 2015 issue of Regulation, economist Edgar O. Olsen suggests this approach. Olsen contends that project-based assistance is more costly than tenant-based assistance, and as a result contributes to longer waits for low-income units. That means fewer of the lowest income families receive assistance.

Since 70 percent of households receiving rental assistance receive project-based assistance, there are major gains to be gained by shifting resources toward tenant-based assistance. Olsen estimates that increasing tenant-based assistance would cost 10 percent less and serve 75 percent more people than the status quo.

That’s helpful, but addressing the underlying causes of housing affordability issues would be even more effective. One cause of housing affordability issues is restrictive land use regulations and zoning. In a recent analysis, Calder found that in 44 states more intensive land-use regulation is associated with increasing home prices. 

Unfortunately, regulatory barriers to affordability continue to grow. In San Francisco and other heavily regulated coastal cities, removing regulatory barriers could substantially increase housing supply and lower costs.

And if zoning reforms were combined with replacing programs like LIHTC with tenant-based assistance, officials could increase housing supply, lower housing costs, and more effectively provide subsidies to people who need them. Unfortunately, the Times article suggests damaging proposals like increasing the size of LIHTC and applying rent controls.

That is not an effective solution if improving housing affordability is the objective. Instead, officials should cut regulations that create supply shortages and move towards more effective forms of housing assistance. LIHTC isn’t one of them.

Written with research assistance from David Kemp.

Part of the federal government is closed today because the two parties cannot agree on a discretionary spending plan for the balance of fiscal 2018. No compromise has yet secured the 60 needed votes in the Senate. The government had been operating under a “continuing resolution” (CR) that has now expired.

When policymakers cannot pass regular appropriations bills or a CR, nonessential federal activities are shut down. In particular, “agencies are required to begin a shutdown of all activities not essential to the protection of property or the safety of human life and furlough all non-excepted employees.”

Shutdowns are embarrassing for policymakers, as they suggest to the public that Washington is run by squabbling kids. But it is hard to make the trains run on time under current budget rules given the supermajority barrier in the Senate and the divergent policy views of the parties.

As it turns out, the solution to the shutdown problem is simple: An automatic CR that fixes discretionary spending at current levels. If a fiscal year begins, and the parties have not agreed on a spending plan, then agencies may continue existing spending activities. The auto CR would be in force until normal appropriations bills were enacted.

An auto CR law might include declining spending levels and other mechanisms, but simpler is probably better. An auto CR would avert shutdown crises, decrease partisan acrimony, modestly tilt the budget process toward restraint, and reduce the chance of time-pressurized spending deals that blow the bank.

Brian Riedl discusses some of the advantages of an auto CR, and CRS discusses some possible disadvantages. I think the former outweigh the latter. 

It’s the first day of National School Choice Week , a time when most school choice advocates embrace all types of educational choice programs. Many school choice promoters believe that every single incremental policy that expands educational options is an overall improvement. I disagree. You might be surprised about this, but I promise I have not pulled a Diane Ravitch. While I used to share the view that any incremental policy weakening government monopoly power would improve the education system overall, I have realized that there are potentially large costs that could result from expanding certain types of educational choice programs. While this is not a comprehensive list, here are three key concerns that I have with enacting and expanding every single choice option that becomes available.

Regulated Choice

The main problem with expanding regulated choice is that existing autonomous private schools will be nudged to behave like public schools. Independent private schools currently have to compete with educational institutions that are free at the point of entry. They have a clear financial incentive to accept school choice funding, even if it requires them to change what and how they teach. As Lindsey Burke and I have recently discovered empirically, voucher program regulation could lead to less specialization in the supply of private schools. In other words, we could end up with a more homogenous supply of schools than we had absent the choice system. Also, even if a private school choice program is completely unregulated today, policy-makers could decide to change that in the future, especially if the program is funded by public dollars. If a private school already serves a large portion of voucher students, they will have a huge incentive to put up with new regulations, which would essentially turn them into government schools.

Unbalanced Competition

Because I am confident in the ability of the price system to provide the information and the incentives necessary to increase quality and reduce costs, I used to believe that every single type of choice ought to be welcomed. After all, with a level playing field, the market would determine which types of choice would succeed and which would fail. However, this is not necessarily the case. School choice programs do not all receive the same amount of public funding, even within the same geographic location. In D.C., for example, the 2016 per pupil public funding amount for charter schools was about $14,000, while the average voucher amount was only around $9,600. Why should we expect educational outcomes to be equal across choice types when government favors public charter schools by giving them 46 percent more resources? In this sense, we shouldn’t be surprised that the most recent experimental evaluation of the D.C. voucher program found negative effects on student achievement relative to students in district and charter schools.

Opportunity costs

Of course, human capital is needed to push for expansion of educational options. But time and effort are the scarcest resources available. When human capital is allocated towards expanding inferior types of school choice, it is not being allocated towards expanding optimal solutions. This is the basic economic problem of opportunity costs. When hamstrung forms of choice—like public charter schools or heavily regulated vouchers—are expanded, and they fail to produce highly impressive results in the short-run, critics of choice are quick to declare market failure. Because this could shape public opinion against markets in education—and educational choice in general—acceptance of economically inferior school choice systems could reduce the possibility of future enactment of programs that more closely reflect market scenarios.

So what should we do? As with most interesting political debates, there is not a clear solution. But we should not simply look at the short-run costs and benefits of each individual program that is proposed. We need to make school choice policy decisions while considering long-run costs and benefits. To avoid my major concerns, the best politically feasible option we can embrace is a privately funded education savings account at the state level. Education savings accounts allow families to customize educational environments based on their children’s unique needs, and they allow for more price differentiation, which is necessary for a market to function properly. And because policy-makers could alter how they define which dollars are public, we should enact these policies at the state level.

And remember, even if it is counterintuitive, more school choice is not always an enhancement for educational freedom, especially when it reduces the diversity of schools in the long-run.

Legalizing the DREAMers, building the wall, boosting border security, and reforming the diversity immigrant visa program are the components of a successful legislative deal to reopen the federal government.  Reforming the diversity visa presents some unique challenges because Congress does not want to cut the number of green cards, but many Democrats–especially members of the Black and Hispanic Congressional Caucuses–worry that any substantial change to the program would diminish the number of immigrants from the nations that are favored under the current system. 

Fortunately, there is a policy solution that should satisfy both sides: convert the diversity visa into a merit-based system that still favors immigrants from the regions of the world that qualify for the diversity visa.

Before explaining this reform idea and how it would satisfy both political parties, some background on the diversity immigrant visa program is necessary.  This immigration category allocates 50,000 green cards annually to foreign nationals, distributed by lottery. These green cards go only to applicants from low-admission countries that sent fewer than 50,000 immigrants to the United States in the last five yearsLottery winners must have at least a high school education or demonstrate two years of work experience within the past five years in an occupation that requires at least two years of training or experience.  Applicants must also pass the required health, crime, and national security checks.  No more than 7 percent of all winners can come from any one country in a given year.

The first portion of this reform idea would make many Republicans happy by canceling the diversity visa program and shifting those 50,000 green cards to a new merit-based green card category that would allocate the visas via a points system.  The assignment of points under this immigration category is up to Congress, but copying the system outlined by Senators Tom Cotton (R-AR) and David Perdue (R-GA) in the RAISE Act would take a lot of ire out of their opposition.  However, Congress should make some changes to the RAISE Act’s points scheme to prevent absurd outcomes.  The diversity visa requirement that only 7 percent of the new green cards can go to applicants from any one country should also be removed to make it more meritorious.  The green cards under this new category would then be allocated to applicants who get the most points, assuming they are eligible and meet some minimum point threshold.        

The second portion of this reform idea would make many Democrats happy by continuing to allocate these green cards to applicants from low-admission countries as defined under the law currently governing the diversity visa.  By copying the diversity visa’s definition of low-admission countries, only foreign nationals from countries that sent fewer than 50,000 immigrants to the United States in the previous five years would be eligible for the new merit-based green card.  This would guarantee that, at least initially, new immigrants under this merit-based points scheme would come from broadly similar countries as those who qualify for the current diversity immigrant visa program. 

Depending on the actual points system created by Congress, the specific immigrants from these countries would likely be more educated and fluent in English, but their countries of origin would be similar to those under the diversity visa program. 

Canceling the diversity immigrant visa program, transferring its green cards into a new merit-based points category, and only allowing applicants from low-admission countries to apply for those visas should satisfy most Republicans and Democrats who want a middle-ground solution that would reopen the federal government.

People use email for many things: to collaborate at work, catch up with old friends, share baby pictures, or, sometimes, to coordinate the operations of an international narcotics trafficking ring. The federal government believes certain Microsoft-hosted email accounts were used for this last purpose and is demanding Microsoft provide them access to the communications stored within.

The Stored Communications Act (SCA) governs federal law enforcement’s authority to search email and other electronic records. They must obtain a warrant, subject to constraints similar to those imposed by the Fourth Amendment, and then provide an opportunity for the target company (e.g. Microsoft here) to contest the warrant.

Microsoft chose to contest the warrant in this case on the ground that the emails in question are stored on servers in Ireland, arguing that federal law enforcement may not claim jurisdiction over the entire globe. The federal government argues that the happenstance of the server’s location is invisible to the user, who, while sitting in his apartment in Manhattan (or wherever), is oblivious to whether his email server is in Galway or Yonkers. Because this is an important and recurring question, the Supreme Court decided to step in and sort the matter out.

To assist the court in sorting through the difficult legal questions in the case, Cato has filed an amicus brief, joining the Competitive Enterprise Institute, TechFreedom, Reason Foundation, Individual Rights Foundation, and American Consumer Institute Center for Citizen Research. The brief focuses on elucidating the ways in which the Fourth Amendment and the SCA interact with modern technology. We argue that the law is increasingly, and correctly, recognizing that personal data belongs to the individual, much like the “houses, papers, and effects” mentioned in the text of the Fourth Amendment. Digital communications are different than physical things, of course, but the Terms of Service between Microsoft and its customers recognize the users’ property interests in the data. Therefore, while the warrant procedure under the SCA deviates slightly from the normal process, it nonetheless should be examined with the same rigor as a traditional warrant, and that means the traditional presumption against extraterritorial application should be respected in this case. Finally, we argue that concerns over gamesmanship—for example, American companies stashing their servers in Zanzibar to aid and abet criminality—can be more prudently addressed with other tools. The Court should affirm that the right of people to be secure in their papers and effects has not been abrogated by modern technology and that the long arm of the law shall not extend across all oceans without express authorization from the legislature.

Yesterday Jim Hansen, now with Columbia University, and several of his colleagues released their summary of 2017 global temperatures. Their history, published by the NASA Goddard Institute for Space Studies, has constantly been evolving in ways that make the early years colder and the later years hot. I recently posted on how this can happen, and the differences between these modified datasets and those determined objectively (i.e. without human meddling).

For a couple years I have been pointing out (along with Judith Curry and others) that the latest fad—which puts a lot of warming in recent data—is to extend high-latitude land weather station data far out over the Arctic Ocean. Hansen’s crew takes stations north of 64⁰ latitude and extends them an astounding 1200 kilometers into the ocean.

This, plainly speaking, is a violation of one of the most fundamental principles of thermodynamics, which is that when matter is changing its state (from, say, solid to liquid), a stirred fluid will remain at “freezing” until it is all liquid, whereupon warming will commence.

This also applies in the Arctic, where the fluid is often stirred by strong winds. So if, say, Resolute, one of the northernmost land stations, is 50⁰F, and the Arctic is mixed water-ice (it always is), that 50 degrees will be extended out 1200 kilometers where the air-sea boundary temperature has to be around 30⁰F, the freezing point of seawater up there.

Hansen et al. did pay some attention to this, noting this extension, which they normally apply to their data, was responsible for making 2017 the second-warmest year in their record. If they “only” extended 250km (still dicey), it would drop their “global” temperatures by a tenth of a degree, which would send the year down a rank. The result of all of this is that the big “spike” at the end of their record is in no small part due to the 1200km extension that turns thermodynamics on its head.

There’s another interesting pronouncement in the NASA announcement; many people have noted that the sun is a bit cool in recent years, and that it continues to trend slightly downward. The changes in its radiance are probably good for a tenth of a degree (C) of surface temperature or so. Hansen et al. use this to provide covering fire should warming stall out yet again:

Therefore, because of the combination of the strong 2016 El Niño and the phase of the solar cycle, it is plausible, if not likely, that the next 10 years of global temperature change will leave an impression of a ‘global warming hiatus’.

The significance of this will all fall out in the next year or so. If temperatures head back down all the way to their pre-El Niño levels, that will ultimately bring back the post-1996 “pause.” We’re going to guess they are going to remain a couple of tenths of a degree above that, based on what happened after the big one in 1998, where they settled a small amount above the pre-El Niño of the earlier 1990s.

If the recent warming rate (adjusting for El Niño) continues, we’ll hear that it is doing so “despite” the sun. Given that one year (2018) can have little influence on a recent trendline, that copy may already have been written!

All of this begs the question: Hansen notes in his release that the warming rate since 1970 has been fairly constant, about 0.17⁰C per decade, and didn’t note that the average of the UN’s climate models say it should be about twice that now. More lukewarming.

Republican Congressman Scott Perry (PA) was a guest on Tucker Carlson Tonight last night in a segment about the continuing investigation into the Las Vegas shooting earlier this year. Congressman Perry said:

I have been made aware of what I believe to be credible evidence, credible information regarding potential terrorist infiltration through the southern border regarding this incident.

When pressed by another guest, Congressman Perry offered zero evidence but did say that “I have received what I feel to be and believe to be credible evidence of a possible terrorist nexus.”  With all due respect to Congressman Perry’s feelings, they are not evidence and a serious charge like his requires evidence.  If he does have such evidence, he should release it immediately.  

In researching my 2016 policy analysis on terrorism and immigration, I discovered nine terrorists who planned or carried out terrorist attacks on U.S. soil after entering illegally.*  Those nine terrorists killed zero people in terrorist attacks on U.S. soil from 1975 through 2017.  Of those nine terrorists who entered illegally, only three did so along the border with Mexico: Shain Duka, Britan Duka, and Eljvir Duka crossed as children with their parents in 1984.  They are ethnic Albanians from Macedonia.  They were three conspirators in the incompetently planned Fort Dix plot that the FBI foiled in 2007, long after they became adults and more than two decades after they entered illegally.  There is no evidence that the Fort Dix plot was more than 23 years in the making.  The Dukas murdered nobody in a terrorist attack.

The border with Mexico is a terrible way for terrorists to attempt to enter the United States, which is why so few have tried.  The arguments for additional border security are bad but at least they are grounded in some facts.  It is a sign of the desperation of immigration restrictionists that so many have to resort to conspiracy theories about terrorists to justify spending taxpayer dollars on more border security. 

More convicted or actual terrorists who planned an attack on U.S. soil actually entered or attempted to do so through the Canadian border.  The deadly foreign-born terrorists since 1975 have overwhelmingly used non-immigrant visas to enter.  Conspiracy theories about a wide-open southern border that terrorists cross to commit attacks are common but they should not be peddled by a member of Congress.  If Congressman Perry does have evidence that a terrorist or terrorists entered through the southern border and committed the Las Vegas attack, I implore him to release it as soon as possible to prove me wrong.



*In my original analysis, I reported that ten foreign-born terrorists initially entered illegally but I incorrectly counted 1993 World Trade Center bomber Ahmed Ajaj as an illegal immigrant when he actually initially entered on a student visa.  

Every week the news cycle seems to deliver a brand new bombshell, followed by panic and endless commentary decrying a nationalist shift in U.S. policy positions. Trade policy provides a prominent example. Though it is exciting to see broader interest in the trade debate, the tendency to declare every little thought or action taken by the administration or by U.S. trade partners as a sign of a trade war is getting a little out of hand. Like the boy who cried “wolf,” the media’s incessant “trade war” refrains are losing credibility. Yes, there are trade disputes. There is trade conflict. And, perhaps, there are even trade skirmishes. But when every little administrative action or tweet is treated as part and parcel to “war,” it gets difficult to take the reporting seriously.

For instance, recent reports that the Canadian government thought the Trump administration was planning to withdraw from the North American Free Trade Agreement (NAFTA) caused immediate shock, riling North American markets, despite the fact that the reports were mere speculation. Moreover, the rumor was based on something President Trump has been saying all along:  If a deal that favors the United States can’t be reached, he would withdraw from NAFTA.  (That’s a position not too different from those mouthed by Barack Obama and Hillary Clinton on the campaign trail in 2008).  Yes, it’s true that the 6th round of NAFTA talks is scheduled to begin January 21st, and many are nervous about its outcome. However, it is also true that every round has been touted as the “tipping point” in the negotiations. But just this week, President Trump suggested that he was open to continuing negotiations until after the elections in Mexico this summer. Those don’t sound like the words of someone preparing to kill NAFTA anytime soon.

In addition, there have been a number of needless alarm bells rung regarding a recent action by Canada at the World Trade Organization (WTO). On January 10, Canada requested consultations with the United States regarding certain aspects of U.S. trade remedy laws.  U.S. Trade Representative Robert Lighthizer called the action, “a broad and ill-advised attack on the U.S. trade remedies system,” and others suggested that the action was an unnecessary provocation by Canada that could threaten to derail the NAFTA talks.

First, for domestic political reasons, Lighthizer had to respond strongly, so we shouldn’t be reading too much into his statement. Second, there is nothing extraordinary about Canada’s request, as the issues brought up have been lingering for a long time. Though the timing may seem inconvenient, given ongoing NAFTA negotiations, it could also be seen as Canada trying to get some leverage in relation to the resolution of the softwood lumber dispute. Third, Canada is unlikely to take any action that would seriously harm its most important trading relationship. It is worth remembering that the Canadian Constitution enshrines the principle of “peace, order and good government,” so it is actually rather un-Canadian to rock the boat, so to speak.

Finally, just because a country files a request for consultation does not mean that the issue will lead to contentious litigation. In fact, of the 537 requests for consultations that have been filed since 1995, roughly a third have led to formal dispute settlement. Many disputes are settled or dropped before formal adjudication begins because the complainant accomplished its goal of getting another member to sit down and resolve a problem quickly and amicably. Following a request for consultation at the WTO, the respondent (the defending member government) has 10 days to reply, after which a consultation period of up to 30 days ensues.  The parties have a total of 60 days to come to some sort of agreement from the date the request was originally made. If not, the complainant can request the formation of a panel to hear the dispute. These steps are all very important, but also explain why consultation requests on their own are no reason for alarm. Consultations facilitate diplomacy and often prevent litigation.

While the Trump administration’s unconventional approach to trade policy (as well as our partners’ reactions) may keep us on our toes, it is essential that we separate the trade policy signal from the noise.  The ambush of frivolous news should not distract us from the important issues, such as recent and potential U.S. reactions to China’s alleged intellectual property theft, forced technology transfer, and cyber-threats, as well as the administration’s blocking of appointments to the WTO’s appellate body.

While the stakes of NAFTA withdrawal are high, and the administration’s skepticism about the WTO is apparent, there hasn’t been much in the way of actual policy change that should cause us to panic. Let’s all take deep breaths and get back to doing our parts to preserve and improve the current trading system rather than ringing the alarm when there’s no fire.

Last night, POLITICO ran a FISA-related story with the lede,”Republicans authorize sharing of classified report on FBI, DOJ officials’ conduct.” These are the two opening paragraphs:

Republicans on the House Intelligence Committee have authorized their colleagues to access a highly classified report that they say details their concerns with the conduct of top FBI and Justice Department officials, as well as the agencies’ handling of a controversial surveillance program.

“We have concerns — FISA concerns — that all members of the body should know,” said Rep. Mike Conaway (R-Texas), a member of the committee, referring to the Foreign Intelligence Surveillance Act. Some of President Donald Trump’s allies in the House have argued that the program was inappropriately used to surveil a foreign policy aide to the Trump campaign.

Since then, several other House GOP members have weighed in on Twitter about the memo in question: Rep. Matt Gaetz (R-FL), Rep. Steve King (R-IA), Rep. Lee Zeldin (R-NY), and House Freedom Caucus chair Rep. Mark Meadows (R-NC).

Of the seven members I’ve seen raise this issue either in the POLITICO story or on Twitter, only one–Meadows–voted against the FISA surveillance expansion bill (S. 139) when it was before the House last week. That fact certainly raises some interesting questions the other six who did vote for S. 139 should answer:

  • When did the Representative learn of the HPSCI majority staff report in question—before or after the vote on S. 139
  • If the Representative learned of the memo before the vote on S. 139, why did he not publicly push for its release to all House members prior to the vote on S. 139? 
  • If the Representative learned of the memo before the vote on S. 139, why did the Representative vote in favor of a FISA bill that Fourth Amendment experts across the political spectrum argue would make such abuses more likely?
  • Since Meadows voted against S. 139, does he believe the House leadership should allow a new FISA reform bill to be brought to the floor to address the alleged abuses detailed in the memo?

This morning, I contacted the offices of the House GOP members quoted by POLITICO or who’ve tweeted about this issue, seeking answers to the questions above. As of 12:30pm, none had responded.

In the POLITICO story cited above, House Intelligence Committee ranking member Adam Schiff (D-CA) made his own allegations, which also contained some possible answers to the questions I posed above:

The Majority voted today on a party-line basis to grant House Members access to a profoundly misleading set of talking points drafted by Republican staff attacking the FBI and its handling of the investigation. Rife with factual inaccuracies and referencing highly classified materials that most of Republican Intelligence Committee members were forced to acknowledge they had never read, this is meant only to give Republican House members a distorted view of the FBI.

I know from working for a HPSCI member for years that votes of the kind that Schiff referenced almost never happen on short notice. It seems extremely likely that the memo in question was written well before the vote on S. 139, a fact that Conaway and other HPSCI GOP members would almost certainly have known. 

The allegations made by Conaway, King, Zeldin and the other GOP House members who’ve read the memo are serious, and like Zeldin and some of the others, I certainly believe the memo and the underlying intelligence allegedly supporting it should be made public. But the timing of these latest allegations make them suspect–even more so given how most of those Members calling for the memo to be made public voted for a bill that this author (and many others) believes will make innocent Americans more vulnerable to federal surveillance. The same skepticism should be applied to many of the sensational allegations of Trump-Russia collusion Schiff and a host of other Democrats have offered over the past several months.

What neither GOP or Democratic House Intelligence Committee members appear prepared to do is invoke the Constitution’s Speech and Debate clause and make public the classified material that allegedly supports their respective positions.

If each side really believes what they allege (Republicans, that Trump’s campaign was spied upon; Democrats, that Trump colluded with the Russians to help him win in 2016), neither side is taking the serious measures necessary to make their full case public to the American people. Thus, the FISA Political Follies continue. 

Well, that was fast. Only a day after I said that we are likely to see increasing calls for protectionism citing alleged national security concerns, Scott N. Paul took to the pages of The New York Times to urge the imposition of new restrictions on steel imports based on this same justification. Long on attempted tugs at emotional and patriotic heartstrings, the piece is strikingly short on data suggesting U.S. national security has been imperiled by foreign imports. Indeed, to the extent Paul, who serves as president of the Alliance for American Manufacturing, even attempts to make this case it is through the following:

Even in this digital age, steel undergirds our military power, not to mention critical infrastructure. Tanks, aircraft carriers and the energy grid all rely on high-strength, lightweight steel. That steel has been made in America for generations.

The security of our own steel industry, though, has been in doubt for a long time. Domestic steel production peaked in 1973. The industry is now operating at less than three-fourths of its capacity. Thousands of steelworkers have been laid off since 2015, and those still working know their jobs are under constant threat. Only one American company makes essential electrical steel, and only one other supplies the type of steel needed to make Virginia-class submarines, the generation of attack submarines that are expected to be in production until 2043.

This is thin gruel, with little on offer besides the banal point that steel is used in the manufacture of many defense platforms. Paul’s observation that steel production reached its apex 45 years ago, meanwhile, actually undermines his implication that a decline in steel production has been to the detriment of U.S. national security. After all, despite the steel industry operating below its production peak the United States has managed in the years since to conduct a massive defense buildup during the 1980s and engage in major conflicts in Kuwait, Iraq, and Afghanistan along with numerous other smaller-scale actions. And lest one think the steel industry has been in perpetual decline since 1973, a quick look at production statistics reveals current output to be rather unremarkable in the context of the last 30 years:

Furthermore, as Clark Packard and Megan Reiss of the R Street Institute note, such production easily satisfies U.S. defense requirements with “only about 3 percent of steel shipped domestically in 2016 used for national defense and homeland security.” And while Paul appears to imply that one American company for electrical steel and one for the steel used in the production of a particular type of submarine are insufficient, he makes no mention of why this is a problem or what a more appropriate number might be. Moreover, should the United States experience a shortfall or inability to produce the product domestically there is no reason why it couldn’t fill this gap via imports. The United States, Packard and Reiss point out, does not lack for viable options should foreign sources be needed:

The United States also has a number of options to source steel from allies and non-hostile trading partners. In fact, of the top ten exporters of steel to the United States in 2016, only China could be considered a potential threat. Moreover, that threat becomes far less pressing when one considers how small a share China has of overall U.S. steel imports. China is only the source of 3 percent of American steel imports. Otherwise, 60 percent of imported steel mill products come from six other countries, none of which could plausibly be considered a threat to national security. According to the most recent available data from the International Trade Administration, between January and October 2017, the top exporter of steel to the United States is Canada, which accounted for 16 percent of imports during this period; Brazil, which accounted for 13 percent; South Korea, which accounted for 10 percent; Mexico, which accounted for 9 percent; Turkey, which accounted for 6 percent; and Japan, which accounted for 5 percent. 

Following his unconvincing case for steel tariffs on national security grounds, Paul then offers the following odd commentary:

Industry has been one of America’s greatest achievements. This is the nation that transformed itself into the arsenal of democracy, and with it won the last world war. Industry powered the country into a golden age of wealth and was a foundation of middle class prosperity.

Today America too often outsources the material to manufacture its prestigious projects, like the San Francisco-Oakland Bay Bridge, in a quest for savings. Half of the steel used in our energy pipelines is imported.

…Steel is our nation’s strength. Mr. Trump should remember that.

Both practically and philosophically this falls short. If one considers industry writ large to be one of this country’s greatest achievements then the fact that far more American workers are found in industries which consume steel rather than produce it—roughly 147,000 in steel production versus 6.5 million in domestic manufacturers that use steel in the production process according to Tori K. Whiting of the Heritage Foundation—is an excellent reason to eschew import restrictions. And why is the use of outsourcing to reduce infrastructure construction costs, thus saving taxpayer dollars and freeing up resources to be used elsewhere, presented as a cause for worry? 

More importantly, while industry has indeed proven to be an important source of American wealth and prosperity, it should be remembered that the foundation of such economic might firmly rests on this country’s commitment to individual liberty and freedom. It is this freedom, including to trade with those we wish, that is the country’s foremost triumph and that from which all other achievements have been realized. No country has barricaded its way to greatness, nor surrendered its freedom in exchange for prosperity. This is what President Trump should truly remember. 

We Washingtonians rightly get criticized for being hyper focused on politics. While D.C. natives gossip about the ups and downs of the powerful elite, most Americans are worrying about their marriages and mortgages. The disjuncture is even greater when it comes to foreign policy, an area in which public interest and knowledge are particularly limited. As many scholars have pointed out, to some degree this dynamic is the result of “rational ignorance” on the part of the public. Given the many other priorities citizens have in their private lives, the benefits of following policy debates closely is quite limited so long as people are generally confident that more knowledgeable people are paying attention. 

Taken too far, however, public apathy toward foreign affairs could become a problem for a democratic system. A central pillar of democratic politics is the ability of the marketplace of ideas to foster debate and produce sound policy. Without a certain level of public engagement, the marketplace of ideas cannot function effectively. If no one is paying attention, how can we have a meaningful debate over U.S. military operations in the Middle East and Africa, or what to do about North Korea’s nuclear arsenal, or China’s growing power? 

The traditional method for criticizing the public’s attentiveness to foreign policy is to note Americans’ astonishing lack of knowledge about the world. The June 2017 Pew Research “News IQ” survey finds, as usual, that most Americans know little even about events and people that have appeared regularly in the news. On the four questions most closely related to foreign policy, 60% of those surveyed knew that Britain is leaving the European Union, 47% could identify Robert Mueller as the person leading the investigation into Russian interference in the 2016 election, 44% could name Rex Tillerson as the Secretary of State, and just 37% could identify Emmanuel Macron as the president of France.

The public also typically lacks key facts informing specific foreign policy issues. Even as the Trump administration calls for new kinds of nuclear warheads, polls have routinely found that few Americans are aware that the United States already possesses thousands of nuclear weapons. And though 67% of Americans in 2014 knew that the Islamic State controlled territory in Syria, only half could identify the nation of Syria when it was highlighted on a map. In 2009, fewer than 30% knew that the United States had 70,000 troops in Afghanistan.

Thanks to Google we have another way to measure America’s foreign policy attention deficit. Google Trends gives us the ability to track how often people searched for a given term over a particular time period. If public ignorance is due to lack of interest, search activity on the Internet is a good way to measure that.

To illustrate what Google Trends data look like, Figure 1 displays people’s search interest in North Korea over the past year. The first spike reflects a series of North Korean missiles tests in April. The high point for Google searches on North Korea came in August when Kim Jong Un, after claiming North Korea now had the ability to hit the American mainland with nuclear weapons, threatened to fire missiles at Guam. President Trump responded that any North Korean provocation would be met with “fire and fury.” 

Google Trends also gives us the ability to compare the popularity of different search terms across regions. Using Google Trends, I looked at people’s search interest in eleven important foreign policy topics during 2017. The exercise confirms the political junkie stereotype of Washington, D.C. but also provides a new way to measure the lack of public attention to foreign affairs elsewhere in the United States. 

Unsurprisingly, Washington D.C. ranked highest in search activity for eight of the 11 topics. The three issues Washingtonians searched for less often than their peers were refugees (2nd, behind Vermont!), North Korea (10th), and the border wall (43rd). Table 1 introduces what I’m calling the “Beltway Index,” a simple measure of how much more attention people inside the Beltway pay to foreign policy than the rest of America.

Google Trends reports results on a 0 to 100 scale, with 100 pegged to the maximum level of search interest. Washington D.C. scored 100 in eight of 11 cases. A score of 50, on the other hand, means that a search term was half as popular as the maximum. Table 1 ranks the issues by what I call their Beltway Index – calculated by taking Washington’s search interest score and dividing it by the average score for the 50 states.

According to the Beltway Index, Washingtonians exhibit twice as much interest in foreign policy, on average, as Americans living outside the Beltway. The variations are illuminating. The highest index score is for the North American Free Trade Agreement. Despite NAFTA’s importance, and Trump’s promises to renegotiate a deal he has roundly criticized, trade policy makes for dull fodder. Trade negotiations unfurl slowly, behind closed doors without any compelling visuals, and the arcane details involved hold little interest for most Americans. On the other end of the spectrum, the only issue less popular in Washington than in the average state was Trump’s favorite construction project, the border wall. The three states most interested in the wall include Illinois (100) along with California (81) and Texas (77). Curiously, both Arizona (47) and New Mexico (41) are among the less interested states on the issue.

Table 1. Attention to Foreign Policy and the Beltway Index


Washington D.C. Search Interest

50 States Average Search Interest

Beltway Index

(Washington Interest/Avg State Interest





































North Korea




Border wall




Given the relatively low comparative level of interest in foreign policy shown by Americans outside of Washington D.C., we should not be shocked that public knowledge on these issues is so low. But given the low level of confidence in the government these days, and the high number of Americans who believe the nation is on the wrong track, it is surprising that so few people outside Washington D.C. feel the need to monitor events more closely. Leaving politics to the professionals only makes sense if citizens feel they can trust their political leaders. If there were ever a time when citizens might be expected to be paying more attention 2017 would seem like an excellent time do so.

Combining the Google Trends data with the 2016 popular vote for each state we can, in fact, find evidence of the connection between trust and attention. The 24 states that voted for Trump had an average search interest score of 45.8 while the 26 states (and Washington D.C.) that did not averaged 54.3 (or 52.9 excluding Washington, D.C.). This result is in line with the idea that people who trust Trump feel more comfortable paying less attention to foreign policy, while those who trust Trump less feel compelled to pay more attention. Table 2 provides data for the states with the strongest and weakest support for Trump. The ten states with the highest popular vote percentages for Trump averaged 44.3, while Washington D.C. and the nine other states with the lowest vote percentage for Trump averaged 60 (or 57 excluding Washington D.C.).

Table 2. Trump Support and Foreign Policy Interest by State

10 States with Highest Trump Support State Trump Popular Vote % Search Interest Score Arkansas 60.6 42.2 Tennessee 61.1 43.5 South Dakota 61.5 45.1 Kentucky 62.5 43.5 Alabama 62.7 41.9 North Dakota 64.1 46.9 Oklahoma 65.3 46.7 West Virginia 68.6 43.7 Wyoming 70.1 45.5 10 States with Lowest Trump Support State Trump Popular Vote % Search Interest Score District of Columbia 4.2 90.1 Hawaii 30 54.2 California 31.9 59.7 Vermont 32.6 61.0 Massachusetts 33.3 57.1 Maryland 34.5 61.2 New York 36.8 57.7 Washington 38.1 53.9 Illinois 38.9 54.9 Rhode Island 39.7 52.0

By most accounts Trump’s first year as president has been unusually turbulent. Every day holds the promise of another destabilizing tweet, a juicy revelation in the Russia interference investigation, or news about critical developments abroad. True, a lot of the day’s news turns out to be white noise – compelling for D.C. insiders but of little value most Americans. But on the other hand, when the president increases U.S. military presence in the Middle East by 33%, cranks up airstrikes in Afghanistan, announces that the U.S. will keep 2,000 troops in Syria indefinitely, and trades insults with North Korea on a weekly basis, paying more attention to the news starts to sound like a pretty good idea.

Last week I published an article critiquing Secretary Ben Carson’s disappointing first year at the Housing and Urban Development Department. It outlined some of the areas where Carson’s efforts have fallen short.

Senator Mike Lee subsequently introduced a bill addressing one of the issues Carson fell short on – facing an Obama-era rule called Affirmatively Furthering Fair Housing (AFFH).[1] Congressman Paul Gosar later introduced companion legislation in the House. Both bills would eliminate the HUD rule if passed.

That’s good news for legislative process, since the Obama-era rule that makes HUD an overseer of local demographic information seems to be only loosely based on the 50-year-old Fair Housing Act it claims to interpret. The rule is probably an example of the agency getting creative about ways to expand its mission. 

In other words, if legislators like the rule they should pass new legislation rather than abdicate legislative authority to HUD. Conversely, if legislators don’t like the rule Congress should pass legislation to nullify it.

The latter is precisely what Senator Lee and Congressman Gosar’s bill does – eliminate the controversial rule outright. And despite the bill’s rather unfortunate name, the “Local Zoning Decisions Protection Act,”[2] it is encouraging that Congress is taking deliberate legislative action.

After all, legislators are supposed to create laws, not agency professionals and not even political appointees. Regardless of how one feels about the HUD rule’s particulars, more legislating in Congress and less in the executive branch is a model everyone should be able to get behind.

[1] The rule makes HUD an overseer of local demographic information, with a special eye towards eradicating demographic segregation.

[2] Local zoning often erodes property rights and individual liberty and arguably is sometimes not in keeping with the U.S. Constitution’s takings clause. Property rights and individual liberty should be protected.

Campus controversy is all the rage these days. Today’s installment comes from the University of Mary Washington, located in Fredericksburg, Virginia. Members of the local student affiliate of the Feminist Majority Foundation took public positions against fraternities and various other problems exemplifying what was, in their view, a toxic student culture regarding sexual assault (for example, the men’s rugby team singing a necrophilic drinking song).

Students who disagreed with the feminist activists went on Yik Yak, a now-defunct app that allowed anonymous users to post whatever they like. It turns out that the veil of anonymity encourages people to speak in an unvarnished way, so many of the comments on the app were aggressive, vulgar, and hyperbolic.

The activists demanded that the university administration take action – and some actions were taken (including suspension of the rugby team) – but the university could not very well punish anonymous postings because, well, they were anonymous. The administration pointed out that banning a public forum because of objections to the speech expressed there would be an affront to free speech, which the University of Mary Washington, a public institution, is obliged by the First Amendment to protect.

The activists were displeased and, backed by the national Feminist Majority Foundation, sued the school for failing to ban Yik Yak and otherwise crack down on offensive speech, in alleged violation of Title IX and the Equal Protection Clause of the Fourteenth Amendment. The federal district court granted the university’s motion to dismiss, so the case is now on appeal before the U.S. Court of Appeals for the Fourth Circuit.

Cato has joined an amicus brief alongside the Foundation for Individual Rights in Education, National Coalition Against Censorship, and former ACLU president Nadine Strossen, arguing that the Fourth Circuit should affirm the dismissal of FMF’s lawsuit. The “Yaks” in question are not to our taste, to say the least, but the values of free expression and free inquiry are meaningless if they protect only those things of which we approve. The university behaved reasonably in this instance, taking steps to address legitimate concerns while declining to abridge the most fundamental guarantee of the Bill of Rights.

College students, for all their foibles, are adults who must learn to engage with other adults who disagree, even those who disagree in repulsive ways. To make government officials the arbiters of our values is to invite the capricious judgement of those in power who would impose their own peculiar taste as to which ideas are and are not permissible within their particular jurisdiction.

In Western Europe, you can be prosecuted if you deny the Armenian Genocide; in Turkey, you can be prosecuted for affirming it. When it comes to the First Amendment, where you stand in the eyes of the law should not depend on the jurisdiction in which you sit.

The case is Feminist Majority Foundation v. University of Mary Washington.

A call for new low-yield nuclear weapons in the Trump administration’s Nuclear Posture Review (NPR) has generated a good deal of controversy and debate among American experts, and for good reason. However, there has been little attention paid to the assumptions that undergird the arguments made in the NPR to justify such capabilities. Flawed assumptions lead to flawed policy prescriptions, and the NPR’s assumptions are shaky at best. Congress should not move forward on the administration’s wish list of low-yield nuclear weapons without rigorously questioning the faulty assumptions made in the 2018 NPR.  

The first key assumption in the new NPR is that the international threat environment facing the United States has worsened considerably since the last review was released in 2010. Unlike the last NPR, which downplayed the role nuclear weapons played in U.S. strategy, the new NPR argues that the growing nuclear capabilities and sharp elbows of America’s adversaries create a compelling need for a tailored and flexible nuclear arsenal. Low-yield nuclear weapons are not intended for “nuclear war-fighting,” the NPR argues, but are meant to bolster deterrence by convincing adversaries that they will not gain a decisive advantage from their own nuclear weapons.

The chief problem with this assumption is that it views deterrence as a contest of capabilities while ignoring the role of interests. In other words, the new NPR implies that capability gaps in the U.S. nuclear arsenal encourage bad behavior from other countries while downplaying the role stakes play in an adversary’s cost-benefit calculation. Credible deterrence requires the United States to make an adversary believe that it will face higher costs than benefits if the target takes an action that the United States is trying to prevent. U.S. nuclear capabilities are one part of this equation, but if the target believes that it has vital interests at stake then it may act regardless of U.S. threats. Low-yield nuclear weapons will impact the cost-benefit calculation of U.S. adversaries, but they probably won’t deter the kinds of actions that have vexed Washington in recent years. For example, the United States was unable to deter China’s island-building activities in the South China Sea and Russia’s annexation of Crimea because in both instances the other countries had greater interests at stake than the United States.

Nuclear weapons are useful tools for deterring things like a nuclear attack against the United States or a Russian attack against NATO, but such actions can be deterred without more low-yield nukes. However, nuclear weapons—regardless of their yield—are poorly suited for preventing other nuclear states from pursuing interests that are much more important for them than the United States.

Another faulty assumption in the NPR is related to Russia’s nuclear strategy. The NPR states that Russia’s “escalate to deescalate” nuclear strategy is a serious threat that requires new U.S. nuclear capabilities to solve. Under the “escalate to deescalate” strategy, Moscow would use or threaten to use low-yield nuclear weapons in a conflict with NATO in order to end the conflict on favorable terms. Therefore, the United States must have new low-yield nuclear weapons of its own in order to prevent Russia from using the threat of limited nuclear escalation to coerce the United States or its allies.

The NPR’s assumptions about “escalate to deescalate” ignore recent developments in Russian military capabilities that suggest “escalate to deescalate” no longer reflects Russian nuclear thinking. Moscow’s economic and military weakness following the end of the Cold War led to greater reliance on nuclear weapons and lower thresholds for nuclear use in order to deter a much stronger NATO. While Russia still lags behind the United States and NATO in military technology, Moscow’s conventional military power and asymmetric capabilities—such as cyber and electronic warfare—have grown much strong over the past decade. Russia has not abandoned the possibility of using nuclear weapons first in a conflict, but U.S. fears over “escalate to deescalate” gloss over the changes that Russia has made to reduce its dependence on nuclear weapons in recent years.

The Trump administration’s NPR makes nuclear strategy based on important assumptions about the state of the world and the nuclear strategies of U.S. adversaries. These assumptions—and the policy solutions that flow from them—must be rigorously questioned in order to craft an effective U.S. nuclear strategy. The case for new low-yield nuclear weapons made in the NPR rests on shaky assumptions about what nuclear weapons are capable of deterring and the characteristics of Russia’s nuclear strategy. 

At 12:51pm on January 18, 2018–just a day before it was set to expire–the Senate followed the House’s lead and reauthorized the Foreign Intelligence Surveillance Amendments Act (FAA) Section 702 mass surveillance program for another six years by a vote of 65-34.

Writing for in October 2017, I made this prediction about the then-looming debate over extending the mass surveillance authority embodied in Section 702: 

Absent another Snowden-like revelation, Section 702 of the FAA will be reauthorized largely without change, and any changes will be cosmetic, and almost certainly abused. Whether it has a “sunset” provision or not is now politically and practically meaningless.

As it turns out, that prediction was optimistic. But first, a recap of the events of this week.

The real drama took place Tuesday evening, when Senate Majority Leader Mitch McConnell (R-KY) held open the procedural vote to end debate on the underlying Section 702 bill, S. 139, by some 90 minutes. The last two holdouts–John Kennedy (R-LA) and Claire McCaskill (D-MO) were worked over by anti- and pro-Section 702 forces on the Senate floor, with Senate Intelligence Committee Chairman Richard Burr (R-NC) calling in reinforcements in the form of Director of National Intelligence Dan Coats to help strong-arm Cassidy and McCaskill into voting to end debate on the bill. The pressure worked, with McCaskill providing the key vote to kill any chance of amending a bill that Senators Ron Wyden (D-OR) and Rand Paul (R-KY) declared was a direct threat to the Fourth Amendment rights of Americans.

Speaking after the procedural vote to kill debate on S. 139, Kennedy told reporters, “I was undecided when I walked on the floor, but the program expires Friday, and I don’t want to play with fire. This is an important program.”

Kennedy’s “playing with fire” reference was a clear manifestation of the political fear he felt. After admitting he was undecided, he elected to be swayed by that fear–fear that the program would lapse without his vote. Fear stoked by the presence of DNI Coats, hovering just off of the Senate floor. Fear that if anyone died in a Salafist-initiated domestic terrorist attack in the period of time between the program’s alleged expiration and renewal, he (Kennedy) would be blamed for it. His Missouri colleague, McCaskill, who is up for reelection this year in what will no doubt be a tough fight in a state Trump won in 2016, probably went through exactly the same things in her mind before casting the deciding vote to end debate and move S. 139 forward–with no chance to amend it. 

But would the Intelligence Community have have “gone dark” if the Senate had elected to continue debate beyond January 19 and allow amendments to the bill? No.

FISA Court orders issued under Section 702 are generally a year in length, which means that any orders issued prior to the technical legal expiration date would’ve been valid for another 12 months. Additionally, Section 702 is not the only authority under which the National Security Agency (NSA) can collect foreign intelligence information. Executive Order 12333, originally issued during the first Reagan administration, provides sweeping overseas intelligence collection authority that, at present, is not subject to any judicial review.

Indeed, it’s EO 12333 that makes possible programs like RAMPART-A, as revealed in the Snowden Archive and reported by The Intercept in 2014:

It has already been widely reported that the NSA works closely with eavesdropping agencies in the United Kingdom, Canada, New Zealand, and Australia as part of the so-called Five Eyes surveillance alliance. But the latest Snowden documents show that a number of other countries, described by the NSA as “third-party partners,” are playing an increasingly important role – by secretly allowing the NSA to install surveillance equipment on their fiber-optic cables.

The NSA documents state that under RAMPART-A, foreign partners “provide access to cables and host U.S. equipment.” This allows the agency to covertly tap into “congestion points around the world” where it says it can intercept the content of phone calls, faxes, e-mails, internet chats, data from virtual private networks, and calls made using Voice over IP software like Skype.

Not surprisingly, Senator Burr failed to mention these facts during his pitch to his colleagues to renew the Section 702 program on Tuesday or today.

Also on Tuesday, Burr made the following assertions:

Let me just say from the start, this is the single most reviewed program that exists in the Federal Government. This is reviewed congressionally–it is reviewed by the courts, it is reviewed by the DNI, it is reviewed by the inspector general and the Department of Justice–because, on the committee, we realize this requires not just the stamp of approval from Congress but the assurance by the Intelligence Committee and by every branch of government that it lives within the parameters we set.

Let’s examine each of these claims in turn.

Congressional review: Because House and Senate Intelligence Committee proceedings take place in secret, the public has no access to the committee hearing transcripts. We don’t how exacting the questioning is, whether a committee had to employee a subpoena to get documents or witness cooperation, or what independent inquiries–like the Senate Intelligence Committee investigation into the CIA’s torture program–have actually been conducted into Section 702 or any other program. This secrecy is only partly necessary. It should be possible to at least get declassified summaries of the issues and problems involving these programs that have actually been examined in depth without compromising any legitimately classified sources or methods. That we are not is a red flag.

FISA Court review: How effective is the FISA Court in preventing Fourth Amendment violations of Americans rights under the Section 702 program? Not very, as the activist group Demand Progress noted in a report issued in 2017. As the Demand Progress press release stated, “The report identifies overreaches by the Intelligence Community. These include Constitutional problems, unauthorized information collection, failure to comply with FISA Court orders, failure to provide notice to defendants, and mismanagement of acquired data.”

Neither Senator Burr or any other Section 702 supporter referenced these violations during debate over S. 139.

DNI review: The DNI is a program proponent, not an objective overseer. DNI Coats’ presence just off the Senate floor was designed to ensure ultimate passage of the underlying bill. Burr’s assertion here does not pass the “laugh test.”

IG review (including DoJ): The last Section 702 Department of Justice Inspector General compliance report was issued in 2012, and was only declassified in part due to litigation by the New York Times. Thus, the public has no idea whether additional compliance reports have actually been produced, much less what they’ve found. Moreover, recent reporting by investigative journalist Jenna McLaughlin at Foreign Policy raises disturbing questions about the very integrity of Inspector General offices across the Intelligence Community, including the Intelligence Community Inspector General office itself. Not only is Burr not on the letter requesting a Government Accountability Office (GAO) review of the allegations, he made no mention of the controversy during his remarks on Section 702 reauthorization.

The fact that Burr does not appear to be interested in ensuring that IC whistleblowers can come forward to safely report problems with Section 702 or other surveillance programs makes a mockery of his claims that any IG examination of Section 702 can be trusted.

I began this piece by noting that my prediction last October that Section 702 would be reauthorized with minimal or cosmetic changes had proved optimistic. The Brennan Center’s description of the actual effects of S. 139 tell the tale:

When Congress reauthorizes Section 702 of FISA—a law intended to authorize surveillance of foreigners only—it should take the opportunity to shore up privacy protections for Americans. S. 139 does the opposite. It codifies the government’s practice of “backdoor searches” without any meaningful restriction. It also authorizes an expanded form of “abouts” collection. It thus leaves Americans’ privacy more vulnerable, not less. 

Burr and other Section 702 reauthorization proponents have also asserted that the program does not deliberately target Americans–that any communications of Americans swept up in Section 702 dragnet are “incidentally” collected. But there’s nothing “incidental” about deliberately targeting people–including Americans at home or abroad–who use the Tor anonymity tool for online browsing–something NSA has been doing for at least a decade. And as the Section 702 “minimization” procedures approved by then-Attorney General Eric Holder in 2009 make clear, NSA can keep and analyze any domestic U.S. communications acquired that employ any form of encryption:

With the growing number of Americans utilizing apps like Signal, Wickr, and similar encrypted messaging apps, it means the total number of Americans NSA can target for simply using encryption to protect their privacy will grow.

And if NSA can’t figure out for sure if you are, in fact, a U.S. citizen, they will target you until they can prove otherwise:

The bill the Senate just passed and that President Trump will sign makes all of these problems worse. It’s another tragic example of the triumph of fear over liberty in the Digital Age. 


The Trump Administration recently ordered the Department of Homeland Security (DHS) to stop issuing H-2A visas for temporary agricultural work to Haitians.  One of the reasons given for not allowing Haitians to use the visas was their high overstay rate of about 40 percent in 2016, meaning that about 40 percent of Haitian workers on the H-2A did not leave at the end of the season as they were supposed to.  Depending exactly how overstay rates are calculated, they normally range from about 1 to 3.5 percent for workers on H-2A visas. 

One reason the H-2A overstay rate is so low is that workers have an excellent chance of coming back year after year if they abide by the rules of the program but, if they overstay or otherwise break the rules, then their chance of earning the visa in the future drops to near zero.  However, if the chance of coming back in future years is low because the government could cancel the program then many rational Haitian workers would choose to overstay.  That is likely what happened in the example of the Haitian H-2A visa workers.

Economists Michael Clemens and Hannah Postrel wrote a preliminary impact evaluation in February 2017 of allowing Haitians to use the H-2A visa.  The government granted only a handful of Haitians visas to work in the United States in 2015 and 2016.  Clemens and Postrel report that all of the workers in 2015 returned to Haiti as scheduled.  They wrote:      

As they vetted potential participants, association leaders were aware that continued participation in the program would be jeopardized if a substantial number of workers overstayed their visas. In the event, all of the workers who traveled.       

Clemens and Postrel didn’t mention the overstay rate for the Haitians who entered in 2016 as that data wasn’t available yet (they were writing the paper in 2016).  But if the reports are true that the Haitian H-2A overstay rate jumped to 40 percent in 2016, then it is likely that the workers suspected that the program was going to be canceled under the next administration and that this was their only chance to stay in the United States.  The expected loss in lifetime income from the possibility that Trump would win and shut down the program was so great that 40 percent of them decided to take their chances in the black market and scuttle any future chance that they would receive another legal guest worker visa.

This is a wonderful example of how government actions have unintended consequences.  Haitians are rational economic actors.  If the goal is to keep overstay rates low, then the government needs to make it easy for migrants to earn visas today and to credibly commit to issuing them in the future.      

President Trump is backing the Securing America’s Future (SAF) Act drafted by key House Republicans. The SAF Act is a comprehensive immigration reform bill posing as a DACA fix. It is 414 pages long and touches on every major area of the immigration system—family, employment, and diversity legal immigration, humanitarian programs, workplace enforcement, temporary visas, interior enforcement, border security, criminal penalties, and much else. Comprehensive immigration reform is fine, but this massive, complex bill expands the scope of the debate so far from DACA that it cannot seriously be considered an answer to this relatively small immigration issue.

In any case, SAF’s negative provisions outweigh its positive ones. The good leaves much to be desired, and the bad is about as bad as it gets.

Positive Provisions

DACA recipients receive a nonimmigrant status that can be renewed indefinitely (p. 384). The failure to grant them permanent residency with a pathway to citizenship refuses to recognize them for what they are: Americans. But it is still better than the Senate Republican proposal that would grant just a three-year visa that is not renewable, and SAF would also allow them to adjust to permanent residency if sponsored by an employer. This is good, but because the bill does nothing about the per-country limits, sponsorship will just end up creating a huge backlog for green cards for Mexican workers, like the H-1B has for Indian workers. Nonetheless, legal status would allow Dreamers to increase their earnings and encourage them to invest in skills that benefit the United States. Keeping the immigrants here will benefit taxpayers because they will pay more in taxes than they receive in benefits over their lifetimes.

The bill’s guest worker program for 500,000 agricultural workers would reduce illegal immigration while providing a source of legal labor for farms (p. 22). I have previously explained and praised this specific proposal here. Still, the fact that the bill fails to provide any work visas for other industries is a shortcoming.

The 55,000 new employment-based green cards will benefit the economy and provide some small relief for skilled immigrants waiting in the decades-long backlog for green cards (p. 21). It also allows children of green card applicants to remain in line until they are 25 (p. 7), partially resolving the problem of “aging out” for some young immigrants—a phenomenon I’ve written about here. Increasing the number of CBP officers to screen travelers at ports of entry (p. 319) and modernizing ports of entry (p. 350) are overdue changes and benefit the economy by easing trade with Mexico and Canada. From a fiscal standpoint, giving parents of U.S. citizens nonimmigrant visas without the opportunity to obtain federal benefits instead of green cards is positive, but the bill senselessly bans the parents from working.

Negative Provisions

By far the worst aspect of the SAF Act cuts overall legal immigration by 25 percent—some 2.6 million people per decade (pp. 5-21). Given how fiscally and economically positive the average immigrant to the United States is, this is a huge unnecessary blow to the economy. Eliminating the random diversity visa lottery is welcome, but unlike the bipartisan Senate deal—which replaces it with a merit-based system—SAF simply eliminates those green cards. Even ending the other family based categories might be worth swallowing if the bill shifted the numbers to the employment-based side. But the employment-based increase is just 55,000 compared to a reduction of more than 315,000 elsewhere.

SAF also changes asylum law to make it more difficult for asylum seekers to apply by greatly increasing the standard of proof to apply for asylum (p. 23). I have previously written about how these changes will make it virtually impossible for asylum seekers who don’t already have attorneys waiting for them and evidence gathered to prove their claims to even apply for asylum.

The worst enforcement provision is criminalizing simply being in the United States without status or violating any aspect of civil immigration law (p. 170). This would turn millions of unauthorized immigrants into criminals overnight. It would also criminalize legal immigrants who fail to update their addresses, carry their green card with them at all times, or otherwise abide by the million inane regulations that Congress imposes on them. This would immediately undo much of the progress that the feds have made on criminal justice reform and reducing its prison population.

Several other security provisions are also problematic. Mandatory E-Verify (p. 87) will impose massive regulatory costs on small businesses, establish a federal national identification system that includes all U.S. workers, and cause hundreds of thousands of Americans to have their jobs delayed or lost entirely due to database errors—all while having a track record of failure in every state that has tried to use it to prevent illegal employment. My detailed comments on this specific E-Verify proposal are here.

Biometric exit (p. 356) is a multi-billion dollar boondoggle that would add absolutely nothing to security while imposing huge costs of travelers and intruding into Americans privacy. Increasing the number of Border Patrol agents by 25% at a time when each agent is already catching less than two crossers per month makes no sense (p. 319). Authorizing states to use the National Guard along the border on the U.S. taxpayer dime is another proven waste of money (p. 286)—even Border Patrol says so.

The bill authorizes spending of $124 billion over five years on border security alone (p. 348). The bill makes little effort to find a means to pay for this gargantuan sum. For comparison, the entire Border Patrol budget last year was $3.8 billion.

An infeasible trade

Republicans are essentially asking Democrats to trade the legalization of 700,000 unauthorized immigrants for the criminalization of all others, banning 2.6 million legal immigrants over the next decade, the elimination of all family sponsorship categories and the diversity visa lottery, deporting tens of thousands of asylum seekers, huge increases in border security spending, a massive new regulatory program that applies to every employee and employer in the country (“E-Verify”), and so much else. This bill has no chance of becoming law, but it is a remarkable illustration of how far apart the parties are on this issue.

One of the leading critiques against President Trump’s foreign policy is that it smacks of global retreat and constitutes a U.S. withdrawal from the leading role it has played in the so-called “liberal world order.” As I explain in an op-ed in the New York Post today, that critique is unfounded.

I cite Joe Scarborough lamenting Trump’s “dangerous retreat from the world,” and Evan Osnos who, in a recent piece in The New Yorker, claimed, “President Trump is reducing U.S. commitments abroad.” Likewise, Hal Brands, who worked on foreign policy strategy in the Obama administration and is now a professor at Johns Hopkins SAIS, broods that Trump “is clearly attracted to something like Fortress America,” a vision that fuses anti-free trade economic nationalism with a withdrawal from U.S. alliances and overseas military presence. The Senate Appropriations Committee even released a report in September criticizing “the administration’s apparent doctrine of retreat.”

While it is clear Trump’s foreign policy disdains multilateralism and harbors contempt for engaged diplomacy, it is profoundly misleading to suggest there has been any kind of retreat from the world. As I explain in the piece, Trump “hasn’t backed away from any theater in which the U.S. military was committed or engaged at the time of his inauguration,” and in many cases, he has deepened America’s foreign entanglements.

One data point that I wasn’t able to include in the piece was the latest news, announced by Secretary of State Rex Tillerson yesterday, that the Trump administration is committing to an indefinite U.S. military presence in Syria. As of today, there are about 2,000 U.S. troops in Syria and Tillerson laid out their mission to include fighting terrorism, saving the Syrian people from Bashar al-Assad, and countering Iranian influence, among other tasks.

Aside from serving as yet more evidence that President Trump is a committed interventionist who has increased, not decreased, U.S. security commitments abroad, it is notable how the administration can announce this new indefinite military commitment in Syria without even pretending to seek Congressional approval or present it as a matter of debate to the public. Much like Trump’s bombing of a Syrian base in April, Congress has not authorized any kind of new open-ended military mission in Syria. Nor does the United States have the permission of the host government, which means it lacks legal sanction internationally, too (not to mention how blatantly this contradicts the Trump team’s emphasis on respect for national sovereignty).

Another endless counter-insurgency campaign in a chaotic post-conflict Syria is hardly a recipe for success. And the notion that this open-ended deployment can effectively counter Iranian influence in Syria is dubious considering the far more robust Syria-Iran-Russia alignment. Equally dubious is the idea that Iranian influence in Syria is a strategic concern that even merits U.S. action in the first place.

In fact, the blowback from this policy has already begun. U.S. troops are located largely in Kurdish-held areas of northeastern Syria and reports initially indicated U.S. plans to develop an independent Kurdish militia force. The response from our NATO ally Turkey, which has long battled Kurdish separatists in its own southeast, near the Syrian border, was vociferous (the White House partially backpedaled in response). President Erdogan pledged to “strangle it,” which suggests Turkey would join with virtually every other state with a stake in the region to counter the U.S. mission in Syria by any means.

Anyone who believes a new military commitment in Syria, predicated on a laundry list of vague, indeterminate, and futile missions, is likely to go off without a hitch hasn’t been paying attention to the last 20 years of U.S. foreign policy in the Middle East. And anyone who continues to suggest President Trump is retreating from the world is simply in denial. 

In early September 2013, Americans rose up in opposition to the suggestion that the United States might undertake a limited military operation to punish Syrian President Bashar al Assad for using chemical weapons in the civil war there.

Even though Secretary of State John Kerry gave assurances that the punitive strikes would be “unbelievably small,” and were unlikely to draw the United States deeper into yet another Middle Eastern war, the mere possibility that they might do so was too great a risk for many Americans who had grown weary of inconclusive conflicts that didn’t serve U.S. vital security interests. They bombarded congressional offices with phone calls and emails saying “stay out.” At the time, Newt Gingrich was one of a very few Washington insiders who made a succinct case against intervention on behalf of the wider public: “A) I don’t understand why it’s our problem, B) I doubt very much that we can fix it, and C) the guys who are against Assad strike me as about as sick as Assad is.”

In the face of such opposition, President Obama’s decision to submit the question to Congress effectively shelved the idea.

Hawks were dismayed, though most blamed Barack Obama for taking public attitudes into account. The political class would have preferred that he simply ignore the fact that Americans weren’t clamoring for more war, much as they wanted him to disregard popular sentiment with respect to leaving U.S. troops in Iraq. 

Now, according to Secretary of State Rex Tillerson, the United States is embarked on a much wider mission in Syria, with the ultimate object of regime change there. The U.S. military presence will be “conditions-based,” meaning open-ended – and, if at all like Iraq and Afghanistan, effectively indefinite. He concedes that some Americans are opposed, but claims it is vital for the United States to remain engaged.

It isn’t vital. Who rules Syria, and whether they do so poorly or well, does not affect the lives and safety of Americans. Nor is it clear that a U.S. military presence on the ground in Syria serves a humanitarian purpose, and is necessary to bring an end to the civil war. It may, in fact, prolong the conflict, and thus the suffering of the Syrian people.

Who exactly is advising the Trump administration on this strategy? Where do these ideas come from? They bear no resemblance to positions that Donald Trump adopted as candidate. In October 2016, for example, he accused Hillary Clinton of risking World War III with Russia by calling for Assad’s ouster. Back then, Trump was content to leave Assad in power, and focus American attention and firepower on ISIS.

Now, barely 15 months later, Assad has reasserted control in parts of Syria, which means dislodging him will be even harder. ISIS, meanwhile, has been shattered, which makes the rationale for U.S. military action even less compelling. The American people aren’t looking to give the already-overburdened U.S. military more tasks to accomplish, and yet that is precisely what the Trump administration appears to be doing.

Why are they moving the goalposts? An explanation by the Secretary of State before a friendly audience at the Hoover Institution should not suffice. At a minimum, Tillerson’s latest announcement should prompt a wide-ranging debate over U.S. goals in Syria, and throughout the Middle East (to include the shameful Saudi-led war in Yemen). In short, Congress should reassert its oversight role, and demand that the Trump administration explain the reasons behind this major policy shift.

If that occurs, it is reasonable to expect, as in 2013, widespread public skepticism. If anything, Americans might be even more opposed, and incensed by the apparent bait-and-switch. And at least some of the people who voted for Donald Trump believing he would be less inclined than Hillary Clinton to expand existing wars, and start new ones, should be feeling a case of buyer’s remorse. He promised change, but he hasn’t delivered


Trade negotiators from Canada, Mexico and the United States will meet in Montreal next week for a crucial round of talks on renegotiating NAFTA. This is the 6th round of negotiations, and the major demands and proposals are now on the table. Can the parties begin to work out their differences and make progress towards a deal? Here are some key issues to watch.

Poison Pills

The United States (i.e., the Trump administration) was the only NAFTA country that was pushing to renegotiate the existing agreement, so its views are important for determining whether a new NAFTA can be worked out. The Trump administration has made a number of proposals that are probably unacceptable to Canada and Mexico (and also to many members of Congress, as well as other groups). These have been referred to as “poison pills,” with some speculation that the administration offered them in the hopes that the proposals would kill the talks and give the U.S. an excuse to withdraw from NAFTA. Three of the biggest poison pills are:

– A weaker enforcement mechanism for policing violations of the agreement (not weaker than most areas of international law, but a big step backwards from what currently exists in U.S. trade agreements).

– A “sunset clause” that would have the agreement expire after five years unless the parties affirmatively decided to renew it.

– A requirement that in order for automobiles to benefit from the zero tariffs under NAFTA, 50% of their content must be from U.S. sources.

The key question for these proposals is whether the U.S. is going to keep insisting on them, or whether it is willing to accept less (e.g., a review mechanism rather than an automatic expiration clause) or even, ideally, to abandon the proposals completely.

Market Opening/Closing

A frustrating part of trade negotiations is how countries bargain over liberalization: one country liberalizes only if others do so. If they were smart, they would be competing to see who could liberalize the most and the fastest. But that’s not where we are with trade politics right now.

Instead, in the NAFTA renegotiation, some of the U.S. proposals are designed to scale back existing liberalization. For example, the U.S. wants more flexibility to follow Buy America rules in government procurement; and it wants a higher level of regional content (i.e., from Canada, Mexico, and the U.S.) in automobiles in order for them to qualify for NAFTA’s zero tariffs (this is a less egregious variation on the U.S. content requirement noted above).

At the same time, the U.S. is also pushing for market opening by others, including a demand that Canada remove some restrictions on dairy imports. Asking trading partners to open their markets is a more traditional approach to trade negotiations, and would probably get much more emphasis in these trade negotiations from any other U.S. administration. For example, the U.S. could be prodding Canada and Mexico to open up various markets for services (e.g., legal and medical services).

Specialized International Courts

While some of the U.S. NAFTA proposals are controversial and hugely problematic, others are controversial but actually have some basis. In this regard, in addition to the proposals related to basic enforcement provisions noted above, the U.S. is also complaining about two other dispute mechanisms in NAFTA, referred to by the chapters in which they fall: Chapter 19 and Chapter 11.

Chapter 19 involves a special review mechanism for domestic anti-dumping/countervailing duties that was originally demanded by Canada as part of the Canada - U.S. FTA, and was then carried over into NAFTA. Normally, anti-dumping/countervailing duties can be appealed to domestic courts; under Chapter 19, they can also be appealed to a special NAFTA panel of experts, which considers the consistency of the agency decisions with domestic law. It is arguably unconstitutional to have an international court apply U.S. law in this way, and it is not clear that the NAFTA panels offer stricter oversight than U.S. courts do. The Trump administration wants to eliminate these provisions; the Canadians are pretty adamant about keeping them.

Chapter 11 contains the notorious investor state dispute settlement mechanism. In my view, the economic value of these provisions is uncertain at best, and they are not worth the uproar they cause. This is something that the U.S. has pushed for in the past, but the Trump administration seems to be reconsidering it. 


Finally, there is the easy part of the NAFTA renegotiation: modernizing it. NAFTA was negotiated in the early 1990s. Since then, the economy has changed a lot, and trade agreements have evolved. One relatively simple part of NAFTA will be to borrow provisions from other recent agreements, covering issues such as state-owned enterprises, e-commerce, labor, and the environment. 


There are lots of rumors these days about whether the Trump administration is going to withdraw from NAFTA, whether the Canadians think the Trump administration is going to withdraw from NAFTA, and (in a tweet that I remember but can’t seem to dig up) what the Trump administration thinks about the Canadians thinking that the Trump administration is going to withdraw from NAFTA. I don’t know what to make of any of that. I’m just going to focus on the substance of Round 6, after which we may have a better sense of what is actually possible and likely here.