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After a period of foreshadowing and rumor, the Equal Employment Opportunity Commission has now gone ahead and ruled that employment discrimination on the basis of sexual orientation is forbidden under existing federal civil rights law, specifically the current ban on sex discrimination. Congress may have declined to pass the long-pending Employment Non-Discrimination Act (ENDA), but no matter; the commission can reach the same result on its own just by reinterpreting current law.

It’s not the commission that gets to have the final say on that, however; it’s the federal courts. And there is a fair trail of precedent, including circuit court authority, rejecting the proposition that sex discrimination in this setting can be stretched to cover sexual orientation discrimination. Against that, it will be argued that some recent case law has nonetheless drifted toward the idea; more important, judges will be asked to defer to the EEOC in its (new) expert opinion.

But it’s not easy to think of an agency to whose views federal courts nowadays give less deference than the EEOC. As I’ve noted in a series of posts, judges appointed by Presidents of both political parties have lately made a habit of smacking down the commission’s positions, often in cases where it has tried to get away with a stretchy interpretation of existing law. See, for example, the Fourth Circuit’s rebuke of “pervasive errors and utterly unreliable analysis“ in EEOC expert testimony, Justice Stephen Breyer’s scathing majority opinion in Young v. U.P.S. on the shortcomings of the EEOC’s legal stance (in a case the plaintiff won), or these stinging defeats dealt out to the commission in three other cases. 

My earlier thoughts on the ENDA merits are here.

Four years ago, the U.S. Court of Appeals for the D.C. Circuit ordered the U.S. Department of Homeland Security to consider the public’s input on its policy of using strip-search machines for primary screening at our nation’s airports. The TSA had “advanced no justification for having failed to conduct a notice-and-comment rulemaking,” the court found. It ordered the agency to “promptly” proceed in a manner consistent with its opinion.

Over the next 20 months, the TSA produced a short, vague paragraph that did nothing to detail the rights of the public and what travelers can expect when they go to the airport. At the time, I called the proposed rule “contemptuous,” because the agency flouted the spirit of the court’s order. In our comment on the proposed rule, Cato senior fellow John Mueller, Mark G. Stewart from the University of Newcastle in Australia, and I took the TSA to task a number of ways.

The comment period on that proposal closed more than two years ago, but the TSA has still not proceeded to finalizing its rule. Continuing the effort to bring the TSA under the rule of law—and into the world of common sense—the Competitive Enterprise Institute filed suit against TSA yesterday, asking the court to require the agency to finalize its strip-search machine rule within 90 days.

Once the rule is finalized, it can be challenged in court under the Administrative Procedure Act’s “arbitrary and capricious” standard. This will be an important step toward bringing the TSA to heel. The D.C. Circuit, which is very familiar with health and safety regulation in which lives are at stake may recognize that the Department of Homeland Security does none of the work that other agencies do to cost-effectively protect life and health. The resulting waste of money and loss of privacy for travelers are not costs the American people should have to pay. Given the strip-search machine program’s results—failure 95% of the time in recent tests—a reviewing court may recognize that the TSA is acting incoherently.

Having the TSA under law in this case will pave the way for bringing other TSA policies within the law. Slow going it is, but the strategy I outlined four years ago is continuing to play out.

A better alternative to this time-consuming process, of course, would be for Congress to restore responsibility for air security to airlines and airports, which can do better than any federal agency at balancing safety and security, cost-control, privacy, and customer service. Speaking of long times passing, it’s now been a decade that I’ve been arguing for that very policy. This Reason piece, a debate with Bob Poole from March 2005, has stood the test of time, I think.

Today, President Obama became the first sitting president to tour a federal prison when he went to El Reno federal penitentiary in Oklahoma. This visit comes two days after the president spoke about criminal justice reform to the NAACP, where he focused his remarks on reducing the sentences for non-violent drug offenders. Commendably, Obama also talked about the living conditions of the incarcerated:

“[W]e should not tolerate conditions in prison that have no place in any civilized country. We should not be tolerating overcrowding in prison. We should not be tolerating gang activity in prison. We should not be tolerating rape in prison. And we shouldn’t be making jokes about it in our popular culture. That’s no joke. These things are unacceptable.”

Indeed, the horrific stories that come out of America’s jail and prison systems are repugnant to any sense of fairness and justice. For that and many other reasons, the president’s recent actions on criminal justice are to be lauded, but also critically examined.

Drug offenders make up a significant portion of the federal prison population, but mass incarceration reduction requires reforms beyond the federal level. Most of the people incarcerated in the United States are in local jails and state prisons for violating municipal and state laws, not federal ones. Moreover, as my colleague Adam Bates wrote this week, the president hasn’t done as much as he could to reduce the federal prison population, even in this limited realm where he has sweeping constitutional authority to do so.

Obama said, “If you’re a low-level drug dealer… you owe some debt to society. You have to be held accountable and make amends. But you don’t owe 20 years. You don’t owe a life sentence.”

The underlying problem with Obama’s approach is the continued reliance on the criminal justice system to be the primary tool for handling our nation’s drug habit. In a society that wants to discourage illicit drug use and sale, it’s not at all clear that throwing a low-level dealer in a prison cell for any amount of time, let alone 20-years-to-life, makes the dealer a better citizen or makes society safer. If incarceration does neither of these, and at such high fiscal cost, perhaps non-criminal alternatives should be considered.

The president’s proposed solutions—increased use of drug courts, treatment, and probation programs—are triggered upon contact with law enforcement and presented only as an alternative to criminal punishment. As I’ve written before, due to collateral consequences, that contact with the justice system can make people less employable and thus further marginalizes individuals from productive society. This contributes to cycles of poverty and increases the likelihood of more negative outcomes in the future, even if the individual doesn’t spend any time in jail.

Again, the president is to be commended for his attention to criminal justice reform and, in particular, his speech that humanized the plight of the currently incarcerated. But the nation needs a much larger rethink about what the criminal justice system should–and should not–do. 

According to news reports, the Obama administration is planning to upgrade Malaysia’s ranking in the State Department’s annual Trafficking in Persons Report.  Advocacy groups are complaining that the move is motivated not by an improvement in Malaysia’s practices but by the administration’s desire to include Malaysia in the Trans-Pacific Partnership.  These critics are probably right, and it’s all the fault of anti-TPP legislators who tried to scuttle the TPP by linking it to human trafficking.

The trade promotion authority statute passed by Congress earlier this summer prohibits the President from negotiating fast-tracked agreements with countries listed as Tier 3 in the trafficking report.  This language was added during committee mark up by Senator Bob Menendez (D-NJ).  The ban is a direct and intentional obstacle to the Trans-Pacific Partnership, which includes Malaysia, a Tier 3 country.

The linkage is sorely misplaced.  As I’ve noted before, no one who’s worried about human rights and the TPP has explained how U.S. or foreign tariffs improve human rights.  Will lowering U.S. and Malaysian tariffs increase the incidence and severity of Malaysia’s human trafficking problems?  How so?  No, the linkage appears to be driven more by traditional opponents of trade liberalization than by concern for improving the plight of people in Malaysia.

But rather than stop the TPP from moving forward, the trafficking provision has merely required the President to embarrass himself by upgrading Malaysia’s status in this year’s report.

Headlines from left wing media outlets include: “White House So Desperate To Get TPP Approved, It Agrees To Whitewash Mass Graves & Human Trafficking In Malaysia” and “Obama Won’t Let Some Mass Graves Stop the TPP”.

The Christian Science Monitor, in a story titled, “Has US desire for Asia trade deal trumped slavery with Malaysia’s ranking?” reveals how activists feel about the move:

For some human-rights advocates, any upgrade in Malaysia’s ranking in the annual trafficking report would be a blatant act of putting economic interests over human dignity. And it would be a stain on America’s record of human-rights promotion.

“If Malaysia is upgraded … we see an adulteration of the TIP report for financial gains,” says Agile Fernandez, director of the Malaysian human-rights organization Tenaganita. “If it’s true, it’s very clear that trade is more important to the United States of America than the issue of slavery.”

[R]ights advocates like Human Rights Watch’s Mr. Sifton say the moral authority of US evaluations like the Trafficking in Persons report risks being lost if ratings become subject to presidential priorities. And he says no explanation – except a very “alarming” one – will justify a move up for Malaysia in TIP ratings.

“We will view this decision as so extraordinarily unwarranted,” Sifton says, “that political interference can be presumed.”

And similarly from Senator Menendez:

“If true, this manipulation of Malaysia’s ranking in the State Department’s 2015 TIP report would be a perversion of the trafficking list and undermine both the integrity of this important report as well as the very difficult task of confronting states about human trafficking,”

But Senator Menendez should probably consider his own role in creating the problem.  The TPP would not have impacted U.S. policy toward human trafficking at all if the senator had not insisted that ignoring Malaysia’s situation be a prerequisite for completing the agreement.

TPP opponents took a gamble when they politicized the human trafficking report.  But the President refused to back down, and now they’re stuck with the consequences.

(Last month, the Chilean webzine El Libero interviewed me about Bitcoin and other cryptocurrency topics. Here is the English translation of the conversation with Juan Pablo Couyoumdjian.)

1. Bitcoin is a class of “crypto-currency,” but what, exactly, are these crypto-currencies? How do they emerge? And why?

LHW: Cryptocurrencies — Bitcoin and its competitors — are digital assets, secured by cryptography, that can be circulated from peer to peer like currency.

Like government fiat money, they are not redeemable at a fixed rate for any commodity or other money. Unlike government fiat money, there is no issuer with discretion to increase the quantity at any time. In the case of Bitcoin, the number of Bitcoin units is programmed to increase at slow and known rate. In the case of Ripple, the top competitor, all the Ripple units to be made were made at the start.

Bitcoin originated (and remains) as a public-interest non-profit project by a programmer (who’s identity is not known) who wanted to create a tamper-proof private non-state currency. Some other cryptocurrencies arose similarly, by other groups of programmers who introduced improved designs (faster, more robust, more user privacy). Once Bitcoin rose to prominence and considerable market value at the end of 2013 (the total value of all Bitcoins currently held is about US$3.4 billion), private for-profit competitors like Ripple and BitShares and Nxt came along with advanced designs and full-time development and promotion teams.

2. These currencies are not only used as mediums of exchange, but also represent a sort of speculative investment, am I correct? Is this what leads to their price-swings? In effect, their “price” reflects their purchasing power, doesn’t it?

LHW: Bitcoin can be used at a number of websites, and at some brick-and-mortar businesses, to buy goods and services. Payment processing companies like Bitpay are making it easier for shops to take Bitcoin. But as far as I can tell, most transactions in Bitcoin and other cryptocurrencies are inter-currency speculative trades: US dollars for Bitcoins, Bitcoins for dollars, Chinese yuan for Bitcoins, Bitcoins for other cryptocurrencies, Dollars for Ripples, and so on.

Because the quantity of Bitcoin does not respond to the rise and fall of demand for Bitcoin, the price varies. That is indeed why the price of Bitcoin has been volatile. Although the price has retreated from its December 2013 peak, today’s market value is more than double that of two years ago.

3. What type of regulation do these markets in digital currencies require? What is the current international experience in this sense?

LHW: The most important regulation is by competition. The cryptocurrency issuers provide openly all the information the public needs to trust them. The source code of Bitcoin’s program (and that for other cryptocoins) is available online, as is the “public ledger” that records transactions. Anyone can check to see that the quantity of coins in circulation is exactly what the program calls for.

The exchanges where cryptocurrencies are bought and sold (led by Bitstamp, Coinbase, Cryptsy, and Kraken) compete on fees, convenience, and security. Concern about security has improved since hackers stole millions of dollars’ worth of BTC from the mismanaged exchange Mt. Gox, which was then the third largest, in February 2014.

I don’t see that the markets would benefit from legal restrictions imposed by governments. Although the imposition of legal restrictions is often called “regulation,” it almost never actually makes markets more regular. Cryptocurrency markets are still evolving. They need freedom to discover and pursue the most beneficial technologies.

Restrictions vary across countries. The United States’ government has begun burdening cryptocurrency providers, both Bitcoin exchanges and proprietary cryptocurrency issuers like Ripple, with anti-privacy rules. The US government insists that any business exchanging cryptocurrency with US customers must be licensed as a “money services business” on the grounds that it could be used for funds transmission and thereby (like a bank) for “money laundering.” To comply, a business has to collect identity data on its users (“know your customer” rules) and report “suspicious” transactions to the government. Ripple recently paid a heavy fine for not complying promptly enough.

4. You have been a long-time scholar of alternative monetary institutions. To what extent does this development represent a new market innovation in the monetary field?

LHW: The traditional form of private money, as discussed in my first book, Free Banking in Britain (1984), consisted of banknotes and transferable account balances, which are IOUs (debt claims) for the bank that issues them, redeemable at a fixed rate in a more basic money like gold or silver.

Bitcoins and other cryptocurrencies are not IOUs. I call them IOU-nothings. This is something entirely new. Instead of a value guarantee, backed by a contractual commitment to give the holder a certain amount of basic money on demand, Bitcoin offers a quantity guarantee. The holder knows its value can’t be hyper-inflated away because the number of Bitcoins is governed by a secure program. The assurance is similar to that provided by the numbering of artists’ prints.

But with a quantity that does not respond to demand, the price of Bitcoin (in US dollars or Chinese yuan) must do all the responding to changes in demand. This makes the price of Bitcoin quite volatile. We don’t know yet whether this price volatility will stop cryptocurrencies from catching on as a commonly used means of payment.

5. Price stability has been said to be a fundamental element of any free society. What is, according to your view, the best way to achieve such stability?

LHW: I think this question isn’t rightly posed. In my view a free society means that people can use whatever kind of currency they prefer. We shouldn’t pre-judge that they prefer a currency that produces a stable price level.

Other things equal, most people prefer a currency that better holds its value, but that doesn’t mean that government should try to stabilize the price level. Instead it means that most people are likely to prefer a currency that gains value, over one that merely holds its value roughly unchanged. Historically, the best money we’ve had for holding its value was the classical gold standard in countries without a central bank. Where money was privately provided by multiple private banks, all legally bound to honor their contracts, no one bank could declare the suspension of gold redeemability.

Central banks are notorious for breaking their promises to keep a fixed rate between the local currency and gold, or between the local currency and some external currency. And nobody can sue them for breach of contract, because they have sovereign immunity. So the best way to achieve a monetary system where people have the kind of money they want, I would say, is one where there is free competition among currency issuers. A system of free banking. I would expect the currency banks issue to be redeemable for gold, or dollars, or Swiss francs, or something else, depending on historical context. Or I might be wrong, and something like Bitcoin might emerge as the most popular money.

6. What do you think about Chile’s “monetary constitution”? Chile has achieved monetary stability through an independent Central Bank; do you feel this is a robust institutional design?

LHW: In recent decades Chile has had lower inflation than its neighbors, especially Argentina, which is good for Chileans. But I don’t know how robust the “monetary constitution” will prove itself to be when a fiscal emergency arises.

I note that peso banknotes have many zeroes on them, which suggests that inflation was a problem not too long ago. The independence of any central bank is always limited by the fact that the bank is a creature of the government, which can take back the independence at any time. In a fiscal emergency, especially under fiat money systems, formerly independent central banks tend to lose their independence and begin printing money to pay the government’s bills, more money than is consistent with low inflation. Is your current government dedicated to fiscal prudence?

[Cross-posted from]

Paul Krugman, “Killing the European Project”, NY Times, July 12, 2015: “The European project — a project I have always praised and supported — has just been dealt a terrible, perhaps fatal blow. And whatever you think of Syriza, or Greece, it wasn’t the Greeks who did it.”

Paul Krugman has always praised and supported the European project? Really? Here’s Prof. Krugman in his own words on the centerpiece of the European project, the euro:

  • Paul Krugman, “The Euro: Beware Of What You Wish For”, Fortune, December 1998: “But EMU wasn’t designed to make everyone happy. It was designed to keep Germany happy - to provide the kind of stern anti-inflationary discipline that everyone knew Germany had always wanted and would always want in future. So what if the Germans have changed their mind, and realized that they - along with all the other major governments - are more worried about deflation than inflation, that they would very much like the central bankers to print some more money? Sorry, too late: the system is already on autopilot, and no course changes are permitted.”
  • Paul Krugman, “Can Europe Be Saved?”, NY Times, January 12, 2011: “The tragedy of the Euromess is that the creation of the euro was supposed to be the finest moment in a grand and noble undertaking: the generations-long effort to bring peace, democracy and shared prosperity to a once and frequently war-torn continent. But the architects of the euro, caught up in their project’s sweep and romance, chose to ignore the mundane difficulties a shared currency would predictably encounter — to ignore warnings, which were issued right from the beginning, that Europe lacked the institutions needed to make a common currency workable. Instead, they engaged in magical thinking, acting as if the nobility of their mission transcended such concerns.”
  • Paul Krugman, “Europe’s Many Economic Disasters”, NY Times, July 3, 2015: “What all of these economies have in common, however, is that by joining the eurozone they put themselves into an economic straitjacket. Finland had a very severe economic crisis at the end of the 1980s — much worse, at the beginning, than what it’s going through now. But it was able to engineer a fairly quick recovery in large part by sharply devaluing its currency, making its exports more competitive. This time, unfortunately, it had no currency to devalue. And the same goes for Europe’s other trouble spots. Does this mean that creating the euro was a mistake? Well, yes.”

When reading Prof. Krugman’s works, it’s prudent to fact check. Prof. Krugman has always been in the Eurosceptic camp. Indeed, the essence of many of his pronouncements can be found in declarations from a wide range of Eurosceptic parties.

Today’s Google Doodle honors Ida Wells, born into slavery in Mississippi on this date in 1862, fearless and tireless anti-lynching activist and heroine of free speech. Writer and owner of several publications, Wells was best known for documenting the post-Reconstruction horrors of “sanctioned violence outside the machinery of the state,” as I described it in this space recently

By the time Wells came to national note in the 1890s, the threat of mob violence had come to be accepted as an endemic part of American life across much of the South and a good part of the North as well. Press freedom, however, was also something real, and Wells could bring the ghastly specifics of lynching practice, as well as the falseness of the arguments used in its defense, to a national audience. Soon a mob in Memphis proceeded to storm and destroy her printing press. But it could not silence her; she was free to carry on from other, safer cities. Is there a better lesson in how civil liberties work to reinforce each other? Because of America’s broad degree of press liberty, Wells could build her case methodically for a right to freedom from mob violence; because mob violence was held in check across enough of the country, Wells could not be prevented from writing, speaking on tour, and soon becoming an internationally known figure of reform and African-American advocacy. 

You can read Wells’ work in many primary sources online: “Lynch Law,” 1893; speech, “Lynch Law in America”; and the pamphlet “Southern Horrors: Lynch Law in All Its Phases,” with a letter of encouragement from Frederick Douglass in Anacostia. Her accomplishments should be of interest to every libertarian and every American. 

A quick notice: The Wisconsin Supreme Court’s much anticipated decision in the long running “John Doe” investigations of alleged campaign finance violations came down this morning, and it’s a resounding rejection of the prosecution’s entire theory of the case. By way of very brief background of a very complex case, here’s the opening paragraph from an April 27 post I wrote for Cato@Liberty:

Just when you thought the long-running “John Doe” prosecution/persecutions in Wisconsin couldn’t get any worse—SWAT teams conducting pre-dawn raids on family homes, gag orders on the victims, and the prosecutor’s recusal motion directed against no fewer than four state supreme court justices, all over politically driven campaign finance allegations—Milwaukee County District Attorney John Chisholm suggested over the weekend that Gov. Scott Walker could be criminally charged for lying. Walker’s “crime”? In Iowa on Saturday, he questioned whether the prosecution’s tactics were constitutional.

You can’t make stuff like this up. Well here’s just a bit of the language this morning from Justice Michael J. Gableman:

[W]e invalidate the special prosecutor’s theory of the case, and we grant the relief requested by the Unnamed Movants. 

To be clear, this conclusion ends the John Doe investigation because the special prosecutor’s legal theory is unsupported in either reason or law.  Consequently, the investigation is closed.  Consistent with our decision and the order entered by Reserve Judge Peterson, we order that the special prosecutor and the district attorneys involved in this investigation must cease all activities related to the investigation, return all property seized in the investigation from any individual or organization, and permanently destroy all copies of information and other materials obtained through the investigation.  All Unnamed Movants are relieved of any duty to cooperate further with the investigation.

Language like that makes one appreciate the importance of an independent judiciary. You can read the whole opinion here

ADDENDUM: Once you get to paragraph 133 of the Court’s opinion, you see this whole matter put in perspective:

Our lengthy discussion of these three cases can be distilled into a few simple, but important, points.  It is utterly clear that the special prosecutor has employed theories of law that do not exist in order to investigate citizens who were wholly innocent of any wrongdoing.   In other words, the special prosecutor was the instigator of a “perfect storm” of wrongs that was visited upon the innocent Unnamed Movants and those who dared to associate with them.  It is fortunate, indeed, for every other citizen of this great State who is interested in the protection of fundamental liberties that the special prosecutor chose as his targets innocent citizens who had both the will and the means to fight the unlimited resources of an unjust prosecution.  Further, these brave individuals played a crucial role in presenting this court with an opportunity to re-endorse its commitment to upholding the fundamental right of each and every citizen to engage in lawful political activity and to do so free from the fear of the tyrannical retribution of arbitrary or capricious governmental prosecution.  Let one point be clear: our conclusion today ends this unconstitutional John Doe investigation.

Here is Paul Krugman the other day, touting President Obama’s efforts to promote clean energy:

Some things I’ve been reading lately remind me that there’s another major Obama initiative that is the subject of similar delusions: the promotion of green energy. Everyone on the right knows that the stimulus-linked efforts to promote solar and wind were a bust — Solyndra! Solyndra! Benghazi! — and in general they still seem to regard renewables as hippie-dippy stuff that will never go anywhere.

So it comes as something of a shock when you look at the actual data, and discover that solar and wind energy consumption has tripled under Obama.

True, it started from a low base, but green energy is no longer a marginal factor — and with solar panels experiencing Moore’s Law-type cost declines, we’re looking at a real transformation looking forward.

You can argue about how much this transformation owes to federal policy. …

I don’t know all the reasons why solar and wind energy consumption has tripled in recent years, but yes, you can argue about the role of federal policy here. The federal policy that I follow most closely is trade policy, and what trade policy has been doing is imposing really high import taxes on solar and wind products, thus raising their costs.  Here’s what my colleague Bill Watson and I wrote about this a while ago:

Over the last couple of years, trade remedy actions on clean energy products have intensified. In the wind industry, the Wind Tower Trade Coalition, an association of U.S. producers of wind towers, brought an AD/CVD complaint against imported wind towers in 2011. The U.S. Commerce Department started an investigation, and announced a preliminary decision in December 2012.

This decision found both subsidization and dumping in relation to Chinese imports and imposed an antidumping tariff of between 44.99% and 70.63%, as well as countervailing duties of 21.86%–34.81%. The Commerce Department also established a separate antidumping duty of 51.40%–58.49% on Vietnamese wind tower manufacturers.

In the solar industry, in October 2011, the Coalition for American Solar Manufacturing, a group of seven U.S. solar panel manufacturers led by Solar World Industries America, accused Chinese solar panel companies of dumping products in the United States. The Commerce Department opened an investigation in 2011 and announced the final ruling in 2012. The decision was to impose antidumping tariffs ranging from 24% to 36% on Chinese producers.

If we wanted to promote clean energy, the first thing we could and should do is stop imposing tariffs on these imports! 

With a potentially historic agreement on Iran’s nuclear program in place, President Obama immediately focused his attention on the fight at home. When he announced the deal Tuesday morning, the president warned Congress that he would “veto any legislation that prevents the successful implementation of this deal.” A few hours later, he sat down with the New York Times’s Thomas Friedman to sell it on its merits.

“We are not measuring this deal by whether it is changing the regime inside of Iran,” the president said. “We’re not measuring this deal by whether we are solving every problem that can be traced back to Iran, whether we are eliminating all their nefarious activities around the globe.”

The aim of the negotiations was on ensuring that “Iran could not get a nuclear weapon.”

And that is where he wants the ensuing debate over the final terms of the agreement to be focused. “What I’m going to be able to say, and I think we will be able to prove,” he told Friedman, “is that this by a wide margin is the most definitive path by which Iran will not get a nuclear weapon, and we will be able to achieve that with the full cooperation of the world community and without having to engage in another war in the Middle East.”

That is what the president would like people to believe. But it may not be so simple.

Congress has 60 days to review the deal for final approval, but many GOP leaders have declared the agreement dead on arrival. Some Republicans, as I noted, lambasted the administration for appeasing the Iranian regime even before the details were announced. Accordingly, the administration will likely focus most of its time on reassuring skeptical Democrats to block the passage of legislation that would undo the deal, or, failing that, to sustain a veto.

An override seems unlikely, but the coming congressional debate will not be limited to the merits of the deal.

As Justin Logan and John Glaser wrote on

The debate over Iran diplomacy was really two debates, in which each side was arguing over something different. On the one side was a strikingly broad consensus of nearly the entire arms control community, which recognizes what the deal can achieve in terms of nonproliferation and regional stability. On the opposing side is the Iran hawk community, which focused less on the nuclear issue than on finding ways to isolate and ultimately destroy Iran’s clerical regime, by military force if necessary, nuclear program or not.

The agreement is a clear success for nonproliferation advocates. Unfortunately, that’s not what matters to some of those who now control its fate. 

I really like Sandusky Register reporter Tom Jackson’s piece responding to my post yesterday about congressional appropriators and our national ID law, the REAL ID Act. Jackson is paying attention to all that is said about Ohio’s congressional delegation. Not just following the herd, he’s looking out for new and different things that might be interesting to the folks back home.

The gist of his argument is that calling Ohio Democratic Rep. Marcy Kaptur 75 percent supportive of REAL ID is unfair because she voted against it when it passed the House as a stand-alone bill in 2005. She did vote against it that once, but she also allowed a voice vote on the rule that attached REAL ID to a later appropriations bill, and she voted for that bill and the conference report, both votes helping to make REAL ID a federal law.

Rep. Kaptur doesn’t stand out as a pro-national-ID legislator—true—but that is precisely how log-rolling in Washington works. Bills that tie controversial matter like a national ID law to broadly supported priorities like military funding and money for tsunami relief allow representatives like Kaptur to vote for a national ID twice without standing out.

I didn’t do a good enough job of explaining the procedure by which REAL ID was passed, and Jackson understood me to be blaming Kaptur for funding REAL ID. In fact, my post focused on votes for passage of REAL ID itself. But Kaptur and other appropriators will be voting soon on the FY 2016 Department of Homeland Security appropriations bill, which year after year provides funds to push state implementation of REAL ID. The bill has lots of other priorities in it, but Rep. Kaptur and her colleagues on the Appropriations Committee’s Homeland Security Subcommittee are responsible for all of the bill’s content. Given that any of them could de-fund REAL ID and the national ID project with a simple amendment, I believe it’s appropriate to hold all of them to account for not doing so.

Treasury Secretary Jack Lew’s proposed degradation of the ten-dollar bill (read: the removal of Alexander Hamilton as the featured figure on the ten-spot) is wrongheaded. In addition to being the first and most distinguished U.S. Treasury Secretary and a renowned journalist, Hamilton also excelled as a lawyer and defender of property rights.

Yes, Alexander Hamilton was a distinguished lawyer. He took on many famous cases out of principle. After the Revolutionary War, the state of New York enacted harsh measures against Loyalists and British subjects. These included the Confiscation Act (1779), the Citation Act (1782), and the Trespass Act (1783). All involved the taking of property. In Hamilton’s view, these acts illustrated the inherent difference between democracy and the law. Even though the acts were widely popular, they flouted fundamental principles of property law. Hamilton carried his views into action and successfully defended — in the face of enormous public hostility — those who had property taken under the three New York state statutes.

Hamilton’s influence on creating a respected national judiciary and shaping American jurisprudence was significant and widely recognized during his lifetime. For example, the Chief Justice of the U.S. Supreme Court John Marshall was known to have said that he was a mere schoolboy next to Hamilton. Indeed, in three of Marshall’s landmark decisions – Marbury v. Madison (1803), Fletcher v. Peck (1810), and McCulloch v. Maryland (1819) – he turned to Hamilton’s legal writings for guidance.

Alexander Hamilton is one of America’s most acclaimed Founding Fathers. He should remain as-is on the ten-dollar bill. Anything else would be an insult, the kind of thing that once engendered a duel.

The Spin Cycle is a reoccurring feature based upon just how much the latest weather or climate story, policy pronouncement, or simply poo-bah blather spins the truth. Statements are given a rating between 1-5 spin cycles, with fewer cycles meaning less spin. For a more in-depth description, visit the inaugural edition.

The headline from a CBS News story read “Study: Climate change may be costing lives in the U.S.” The tone is in perfect keeping with the White House wanting the media to focus on the (negative) health impacts from climate change to help drive home the “moral imperative” of administration’s greenhouse gas emissions regulations.

There is one key problem: the findings from the “study” do nothing to shed light on whether “climate change” is taking lives in New England (the region that the study focused on) or anywhere else in the United States. In fact, taking the literature as a whole (including the results of the new study), the more appropriate headline would have been “Studies: Climate change may be saving lives in the U.S.”

The new study in question appears in the journal Nature Climate Change written by a research team headed by Liuhua Shi from the Harvard School of Public Health. Shi and colleagues examined how temperature and temperature variability during the summer and winter seasons impacts the annual mortality of Medicare recipients (i.e., a population aged 65+) residing in New England.

In general, Shi and colleagues found that warmer summers slightly increased mortality while warmer winters slightly lowered it. They also found that more variable temperature (in either winter or summer) led to increases in overall mortality.

Aside from the very real possibility that the statistical significance of these findings was inflated by the mythological design (over inflation of the number of independent data points), the most obvious flaw is that the study didn’t look for any trends in their results. This means, of course, that they aren’t very applicable when it comes to trying to ascertain future behavior (under climate change or not).

It has been repeatedly demonstrated that adaptation to temperature extremes (especially extreme heat) has been increasing over time such that the population of the United States (including New England) is much less sensitive to heat waves (i.e., fewer people die) now than it was, say, 30 to 40 years ago. While this adaptation is not complete—as evidenced by the results of Shi et al. and other previous studies—it is ongoing.

And partially driving this trend towards lower sensitivity to extreme heat is an increase in the frequency of extreme heat events themselves. In other words, climate change begets adaptation.

As we have shown, it doesn’t take much for the increased awareness of heat-related dangers, spawned in part by a changing climate, to overwhelm the impacts of an increase in heat events resulting from the same climate change. We wrote in a recent paper (which also was published in Nature Climate Change):

Some portion of this response [a declining sensitivity to extreme heat events] probably reflects the temporal increase in the frequency of extreme-heat events, an increase that elevates public consciousness and spurs adaptive response. In this manner, climate change itself leads to adaptation. It is insufficient to ignore this effect when compiling and discussing the impacts of climate change.

This is true state of affairs when it comes to climate change and its impact on temperature-related mortality in the United States (and elsewhere), not the one suggested by the CBS News headline.

Consequently, for the spinning inadequate and incomplete data into headlines suggesting climate change is killing us, we award a Slightly Soiled spin cycle (two spins) to CBS News.  

In a 3-to-3 vote today, the U.S. International Trade Commission determined that the domestic industry producing passenger car and light truck tires was materially injured by reason of dumped and subsidized imports from China. Wait, what?  Yes, that’s right.  Despite the Washington protectionism lobby’s self-portrayal as victims of unfair foreign trade practices who are forced to surmount the highest of hurdles before they can “obtain relief” at everyone else’s expense, tie votes go to the protectionists.  A negative determination would have required four votes. Here’s what I wrote about the case on Friday.


  • even though respondents were tasked with having to convince 33.3% more commissioners than were the petitioners; 
  • even though the “domestic industry” was a single labor union representing workers at plants accounting for only 40% of tire production capacity;
  • even though not a single domestic tire producer supported the AD/CVD petitions;
  • even though the costs of the prospective AD/CVD duties on downstream industries (vehicle manufacturers, tire wholesalers and retailers, rental car companies, Uber drivers, etc.), consumers, and national economic welfare are all statutorily forbidden from being considered by the ITC;
  • even though the effects of three years of duties on the exact same kinds of tires from China (from 2009-2012) demonstrate that domestic production will not increase, but imports from other countries will;
  • even though duty calculations are inflated by a sympathetic and pliable Commerce Department agency called “Enforcement and Compliance,” which routinely engages in methodological sleight of hand;
  • and, even though the antidumping and countervailing duty laws – protected from adequate scrutiny because they’re portrayed as tools to level the playing field with unscrupulous foreigners exploiting unfair practices – are routinely abused by U.S. companies and unions to kneecap domestic competition or to obtain greater market or bargaining power…

Congress just passed and the president just enacted legislation to relax to evidentiary requirements and other burdens of proof on petitioners in these kinds of cases.

So, with the steel industry (and others) chomping at the bit to test out these new provisions, don’t be surprised to see a flow of new cases and the emergence of trade lawyering as a growth industry. 

The alleged murder of Kate Steinle in San Francisco by illegal immigrant Juan Francisco Lopez-Sanchez has reignited the debate over the link between immigration and crime. Such debates often call for change in policy regarding the deportation or apprehension of illegal immigrants. However, if policies should change, it should not be in reaction to a single tragic murder.  It should be in response to careful research on whether immigrants actually boost the U.S. crime rates. 

With few exceptions, immigrants are less crime prone than natives or have no effect on crime rates.  As described below, the research is fairly one-sided.       

There are two broad types of studies that investigate immigrant criminality.  The first type uses Census and American Community Survey (ACS) data from the institutionalized population and broadly concludes that immigrants are less crime prone than the native-born population.  It is important to note that immigrants convicted of crimes serve their sentences before being deported with few exceptions.  However, there are some potential problems with Census-based studies that could lead to inaccurate results.  That’s where the second type of study comes in.  The second type is a macro level analysis to judge the impact of immigration on crime rates, generally finding that increased immigration does not increase crime and sometimes even causes crime rates to fall. 

Type 1: Immigrant Crime – Censuses of the Institutionalized Population 

Butcher and Piehl examine the incarceration rates for men aged 18-40 in the 1980, 1990, and 2000 Censuses.  In each year immigrants are less likely to be incarcerated than natives with the gap widening each decade.  By 2000, immigrants have incarceration rates that are one-fifth those of the native-born.  Butcher and Piehl wrote another paper focusing on immigrant incarceration in California by looking at both property and violent crimes by city.  Between years 2000 and 2005, California cities with large inflows of recent immigrants tended have lower violent crimes rates and the findings are statistically significant.  During the same time period, there is no statistically significant relationship between immigration and property crime.   

Ewing, Martinez, and Rumbaut summarize their findings on criminality and immigration thusly:

“[R]oughly 1.6 percent of immigrant males 18-39 are incarcerated, compared to 3.3 percent of the native-born.  The disparity in incarceration rates has existed for decades, as evidenced by data from the 1980, 1990, and 2000 decennial census.  In each of those years, the incarceration rates of the native-born were anywhere from two to five times higher than that of immigrants.”

They continue by focusing on immigrant incarceration rates by country of origin in the 2010 Census.  Less educated young Mexican, Salvadoran, and Guatemalan men (poorly educated young men are most likely to be incarcerated) make up the bulk of the unlawful immigrant population but have significantly lower incarceration rates than native-born men without a high-school diploma.  In 2010, 10.7 percent of native-born men aged 18-39 without a high school degree were incarcerated compared to 2.8 percent of Mexican immigrants and 1.7 percent of Guatemalan and Salvadoran immigrants.  These are similar to Rumbaut’s older research also based on Census data from 2000.  Controlling for relevant observable factors, young uneducated immigrant men from Mexico, El Salvador, and Guatemala are less likely to be incarcerated than similarly situated native-born men.

However, studies of immigrant criminality based on Census data alone could fail to give the full picture.  First, many of the answers given to the Census may have been educated guesses from the Census workers and not the inmates.  Second, the government has done a very poor job of gathering data on the nationality and immigration status of prisoners – even when it has tried.  That biases me against the accuracy of prison surveys by the Census Bureau.  Third, incarceration rates may better reflect the priorities of law enforcement than the true rates of criminal activity among certain populations.

Type 2: Macro Level Analysis of Immigrant Criminality

To avoid the potential Census data problems, other researchers have looked at crime rates and immigration on a macro scale.  These investigations also capture other avenues through which immigration could cause crimes – for instance, by inducing an increase in native criminality or by being easy targets for native criminals.

The phased rollout of the Secure Communities (S-COMM) immigration enforcement program provided a natural experiment.  A recent paper by Thomas J. Miles and Adam B. Cox used the phased rollout to see how S-COMM affected crime rates per county.  If immigrants were disproportionately criminal, then S-COMM would decrease the crime rates.  They found that S-COMM “led to no meaningful reduction in the FBI index crime rate” including violent crimes.  Relying on similar data with different specifications, Treyger et al. found that S-COMM did not decrease crime rates nor did it lead to an increase in discriminatory policing that some critics were worried about.  According to both reports, the population of immigrants is either not correlated, or negatively correlated, with crime rates.         

Ousey and Kubrin looked at 159 cities at three dates between 1980 and 2000 and found that crime rates and levels of immigration are not correlated.  They conclude that “[v]iolent crime is not a deleterious consequence of increased immigration.”  Martinez looked at 111 U.S. cities with at least 5,000 Hispanics and found no statistically significant findings.  Reid et al. looked at a sample of 150 Metropolitan Statistical Areas (MSAs) and found that levels of recent immigration had a statistically significant negative effect on homicide rates but no effect on property crime rates.  They wrote, “[i]t appears that anti-immigrant sentiments that view immigrants as crime prone are not only inaccurate at the micro-level, they are also inaccurate at the macro-level … increased immigration may actually be beneficial in terms of lessening some types of crimes.”  Wadsworth found that cities with greater growth in immigrant or new immigrant populations between 1990 and 2000 tended to have steeper decreases in homicide and robbery rates. 

Using panel data on U.S. counties, Spenkuch finds that a 10 percent increase in the share of immigrants increases the property crime rate by 1.2 percent.  In other words, the average immigrant commits roughly 2.5 times as many property crimes as the average native but with no impact on violent crime rates.  He finds that this effect on property crime rates is caused entirely by Mexican immigrants.  Separating Mexicans from other immigrants, the former commit 3.5 to 5 times as many crimes as the average native.  However, all other immigrants commit less than half as many crimes as natives.  This is the most deleterious finding that I discovered. 

Stowell et al. looks at 103 different MSAs from 1994-2004 and finds that violent crime rates tended to decrease as the concentration of immigrants increased.  An immigrant concentration two standard deviations above the mean translates into 40.5 fewer violent crimes per 100,000 compared to a decrease of 8.1 violent crimes in areas that experienced a change in immigration concentration two standard deviations below the mean.  It is easy to focus on the horrible tragedies when somebody is murdered by an immigrant but it’s very hard to imagine all of the people who weren’t murdered because of the lower crime rates created by increased immigration.  In their summary of the research on this topic, they write:

“[T]he weight of the evidence suggests that immigration is not associated with increased levels of crime.  To the extent that a relationship does exist, research often finds a negative effect of immigration on levels of crime, in general, and on homicide in particular.   

Some immigrants from certain countries of origin may be more crime prone than others, as Spenkuch finds above.  To test this, Chalfin used rainfall patterns in Mexico to estimate inflows of Mexican immigrants.  The idea is that lower rainfall and a decrease in agricultural productivity in Mexico would push marginal Mexican immigrants out of Mexico and into the U.S. labor market.  Mexican rainfall patterns and the subsequent immigration had no effect on violent or property crime rates in major U.S. metropolitan areas.    

These trends have also been found on the local level.  Davies and Fagan looked at crime and immigration patterns at the neighborhood level in New York City.  They find that crime rates are not higher in areas with more immigrants.  Sampson looked at Chicago and found that Hispanic immigrants were far less likely to commit a violent criminal act then either black or white native Chicagoans.  Lee et al. found that trends in recent immigration are either not correlated with homicides or are negatively correlated in Miami, San Diego, and El Paso.  The only exception is that there is a positive relationship between immigration and black homicide rates in San Diego.      

Numerous studies also conclude that the high immigration rate of the 1990s significantly contributed to the precipitous crime decline of that decade.  According to this theory, immigrants are less crime prone and have positive spillover effects like aiding in community redevelopment, rebuilding of local civil society in formerly decaying urban cores, and contributing to greater economic prosperity through pushing natives up the skills spectrum through complementary task specialization. 

Note on Illegal Immigration

The public focus is on the crime rates of unauthorized or illegal immigrants.  The research papers above mostly include all immigrants regardless of legal status.  However, every problem with gathering data on immigrant criminality is multiplied for unauthorized immigrants.  There is some work that can help shed light here.

With particular implications for the murder of Kate Steinle, Hickman et al. look at the recidivism rates of 517 deportable and 780 nondeportable aliens released from the Los Angeles County Jail over a 30-day period in 2002.  They found that there is no difference in the rearrest rate of deportable and nondeportable immigrants released from incarceration at the same place and time.  Their paper is not entirely convincing for several reasons, the most important being that their sample does not include the higher risk inmates who were transferred to state prison and were subsequently released from there.  There are also findings in their paper that seem to contradict their conclusion that aren’t adequately accounted for.  This is only one study of one sample in one city but the results should be incorporated into any argument over sanctuary cities.     


Both the Census-data driven studies and macro-level studies find that immigrants are less crime-prone than natives with some small potential exceptions.  There are numerous reasons why immigrant criminality is lower than native criminality.  One explanation is that immigrants who commit crimes can be deported and thus are punished more for criminal behavior, making them less likely to break the law. 

Another explanation is that immigrants self-select for those willing to work rather than those willing to commit crimes.  According to this “healthy immigrant thesis,” motivated and ambitious foreigners are more likely to immigrate and those folks are less likely to be criminals. This could explain why immigrants are less likely to engage in “anti-social” behaviors than natives despite having lower incomes.  It’s also possible that more effective interior immigration enforcement is catching and deporting unlawful immigrants who are more likely to be criminals before they have a chance to be incarcerated.          

The above research is a vital and missing component in the debate over the supposed links between immigration and crime.  

Today’s Iran deal is a victory for U.S. nonproliferation efforts, and while it may not be perfect, it goes a long way towards ensuring that Iran cannot develop nuclear weapons, and that the IAEA will regain crucial oversight access to Iran’s nuclear facilities. But though it is fundamentally an arms control agreement, some of the biggest impacts may in fact be felt in global oil and gas markets, as easing sanctions allow Iran’s hydrocarbon sector to reopen to the world.

Much of the text of the deal focuses on the sanctions which will be lifted in exchange for Iranian concessions on nuclear enrichment and processing. These include agreement by both the U.S. and EU to permit the import of oil and gas, as well as lifting asset freezes and bans on the export to Iran of technology and equipment for oil and gas extraction. More importantly, bans on investment, financing and service provision in the industry will be lifted, paving the way for European and American firms to provide technical services and invest in the country.

Oil prices have been volatile since the deal was announced, falling almost two percent before recovering. The initial price drop reflects the expectation that Iran may release some of its approximately thirty million reserve barrels of oil onto the market as soon as it is able. Iran also has the potential to impact oil prices in the long-term, holding the world’s fourth-largest reserves of crude oil, and second-largest gas reserves. Production has been depressed by sanctions, but once they are lifted, it is plausible that Iran could increase production to its pre-sanctions levels (2-3 million barrels a day) within several years.

A surge in Iranian production will only increase the current global oversupply of oil, driving prices lower, and setting Iran up for a confrontation with its partners in OPEC. This would be good news for consumers, but bad news for American shale producers, whose profits have already been dented by falling global oil prices. Yet, it could also be good news for large U.S. oil firms, opening the door to exploration and joint ventures in Iran.

Such investment may be particularly tempting given the recent closure of Russia’s oil market by sanctions. Companies like ExxonMobil, which lost access to its $3 billion joint Arctic exploration project with Rosneft, may find Iranian alternatives attractive.  The fact that most of Iran’s reserves are onshore fields - rather than hard-to-access offshore or arctic deposits – may also prove popular. American firms will likely be engaging in competition with European firms like ENI and Total, who were the major international players in Iran’s oil industry prior to the current sanctions regime.

Certainly, there are still obstacles to overcome before Iran reenters the market, a fact reflected in the volatility of oil prices this morning. The deal must clear congress, though opponents of the deal are unlikely to successfully overcome a presidential veto. Sanctions mitigation will not take effect for at least ninety days, as the lifting of the sanctions is tied to successful completion of many of the deal’s requirements by Iran. And there is always the risk of ‘snapback,’ the idea that sanctions may be suddenly reinstated if Iran fails in its obligations. American oil companies may be hesitant to get involved in Iran until these risks diminish.

There is no denying, however, that the successful implementation of the deal will have major consequences for global oil markets, driving prices lower and opening up new investment opportunities. Ultimately, some of the biggest winners of the Iranian deal could be U.S. consumers and companies.   

When Kelly Rindfleisch became a policy analyst for Scott Walker, and then his deputy chief of staff, she didn’t expect all of her personal emails to be the subject of a search into the criminal investigation of another person, but that’s Wisconsin politics for you.

In 2010, state officials opened a “John Doe” investigation (essentially Wisconsin’s version of a grand jury inquiry) into another Walker staffer, then-Chief of Staff Tim Russell. In their investigation, law enforcement sought and obtained a warrant for Google and Yahoo to turn over all ~16,000 emails held on Rindfleisch’s personal email account in order to find possibly incriminating emails sent between her and Russell—no narrowing, minimization, key-word searching, or independent third-party review required.

Through their fishing expedition, prosecutors were able to find enough evidence to support a charge against Rindfleisch, claiming that the incriminating content of those emails was in “plain view” subsequent to the incredibly broad search. Due to the unconstitutional search, Rindfleisch eventually plead guilty to misconduct in public office.

The Wisconsin Court of Appeals upheld the validity of the search warrants, and the Wisconsin Supreme Court declined to hear the appeal—leaving law enforcement with carte blanche to rummage through personal emails. Rindfleisch’s case provides an excellent vehicle for the U.S. Supreme Court to address the degree to which the Fourth Amendment requires a warrant for searching electronic data, tailored to probable cause. That’s why Cato filed a brief, joining the DKT Liberty Project, supporting Rindfleisch’s cert petition.

The Wisconsin courts’ decisions stand in direct conflict with many of the Supreme Court’s precedents; just last year in Riley v. California (2014), the Court addressed the precise privacy concerns at issue here. In Riley, the Court unanimously ruled that the Fourth Amendment requirement of a warrant applied to the digital contents of a locked cell phone. Now the issue has morphed to where lower courts are increasingly confronted with broad searches of all of a citizen’s electronic footprint when there is only probable cause to search a specific and identifiable subset of that information.

Issuing such warrants directly conflicts with the Fourth Amendment’s requirements of reasonableness and specificity. The practice of granting these warrants, particularly in the digital age, amounts to the grant of general warrants—or writs of assistance—to British officials in the colonies, the chief evil at which the Fourth Amendment was aimed.

The Supreme Court should take up this case and articulate meaningful requirements for specificity and reasonableness for electronic search warrants. It should invalidate the fishing expeditions that have become prevalent in political battle zones like Wisconsin.

The Supreme Court will decide whether to take Rindfleisch v. Wisconsin this fall after the justices return from their summer recess.

Every year around this time, a ritual is underway that quietly moves the ball forward on creating a U.S. national ID. That ritual is the annual appropriations process in Congress, which doles out money for everything the government does—including weaving together a system that may one day identify, track, and control each one of us.

As I noted last year in my policy analysis, REAL ID: A State-by-State Update, DHS has spent over a quarter billion dollars on REAL ID since the 2008 fiscal year. Beginning in 2012, grants supporting state efforts to implement REAL ID were moved into the State Homeland Security Grant Program, which fairly well keeps the amounts hidden from you and me. But appropriators at any time could deny the expenditure of funds to implement REAL ID.

Why don’t they do it? Judging by their records, appropriators are a strongly pro-national-ID group. Appropriations committee members who were in Congress when it passed tended to favor the national ID law—Republicans almost without exception. (And because Republicans chair the appropriations committees in both the House and Senate, they are currently the ones to watch.)

House members serving in 2005 had four chances to vote against the national ID law, and senators had two: First, when REAL ID passed the House on a test vote as H.R. 418. Second, when the rule governing debate in the House on H.R. 1268 passed by voice vote, attaching REAL ID to this spending bill. Third, when H.R. 1268 passed the House and Senate. And, fourth, when the conference report on H.R. 1268 passed the House and Senate.

Take a look at the pro-national-ID vote percentages for House Appropriations Committee members. All but one of the House Republican appropriators then serving voted in favor of the national ID law (or allowed it to go forward) every time. Mario Diaz-Balart went against REAL ID on one out of four occasions, voting against it on the test vote. (He was absent for the final vote on the appropriations bill to which REAL ID was attached. This analysis treats absence as “favoring” a bill because it allowed the outcome to occur. Representatives are obliged to vote on consequential matters.)

  • Harold Rogers (KY), Chairman 100% in favor of a national ID
  • Rodney P. Frelinghuysen (NJ) 100% in favor of a national ID
  • Robert B. Aderholt (AL) 100% in favor of a national ID
  • Kay Granger (TX) 100% in favor of a national ID
  • Michael K. Simpson (ID) 100% in favor of a national ID
  • John Abney Culberson (TX) 100% in favor of a national ID
  • Ander Crenshaw (FL) 100% in favor of a national ID
  • John R. Carter (TX) 100% in favor of a national ID
  • Ken Calvert (CA) 100% in favor of a national ID
  • Tom Cole (OK) 100% in favor of a national ID
  • Mario Diaz-Balart (FL) 75% in favor of a national ID
  • Charles W. Dent (PA) 100% in favor of a national ID
  • Tom Graves (GA) 100% in favor of a national ID
  • Jeff Fortenberry (NE) 100% in favor of a national ID

(Current Republican appropriators not serving in the House in 2005: Kevin Yoder, Kansas; Steve Womack, Arkansas; Tom Rooney, Florida; Chuck Fleischmann, Tennessee; Jaime Herrera Beutler, Washington; David Joyce, Ohio; David Valadao, California; Andy Harris, MD, Maryland; Martha Roby, Alabama; Mark Amodei, Nevada; Chris Stewart, Utah; Scott Rigell, Virginia; David Jolly, Florida; David Young, Iowa; Evan Jenkins, West Virginia; Steven Palazzo, Mississippi.)

House Democrats now serving on the appropriations committee had generally better records, typically voting against REAL ID as a freestanding bill, but getting rolled into a supportive position when it was attached to an appropriations bill. Some Democrats voted in favor every time, and a few voted to oppose a national ID because they opposed the spending bill to which it was attached. The only sin of this latter group was allowing the vote on the rule that attached REAL ID to the spending bill to go forward without a roll call vote.

  • Nita M. Lowey (NY), ranking member 75% in favor of a national ID
  • Marcy Kaptur (OH) 75% in favor of a national ID
  • Peter J. Visclosky (IN) 75% in favor of a national ID
  • José E. Serrano (NY) 25% in favor of a national ID
  • Rosa L. DeLauro (CT) 75% in favor of a national ID
  • David E. Price (NC) 75% in favor of a national ID
  • Lucille Roybal-Allard (CA) 75% in favor of a national ID
  • Sam Farr (CA) 25% in favor of a national ID
  • Chaka Fattah (PA) 75% in favor of a national ID
  • Sanford D. Bishop, Jr. (GA) 100% in favor of a national ID
  • Barbara Lee (CA) 25% in favor of a national ID
  • Michael M. Honda (CA) 75% in favor of a national ID
  • Betty McCollum (MN) 25% in favor of a national ID
  • Steve Israel (NY) 75% in favor of a national ID
  • Tim Ryan (OH) 100% in favor of a national ID
  • C.A. Dutch Ruppersberger (MD) 75% in favor of a national ID
  • Debbie Wasserman Schultz (FL) 75% in favor of a national ID
  • Henry Cuellar (TX) 100% in favor of a national ID

Three Democrats currently on the House Appropriations Committee weren’t in Congress when REAL ID passed: Chellie Pingree (ME), Mike Quigley (IL), and Derek Kilmer (WA).

Senate appropriators generally have had only two chances to oppose a national ID. On the vote passing the spending bill that contained REAL ID and on the conference report for that bill. Long-term appropriators from both parties signed on to REAL ID without exception—every single one of them. Senate appropriators who previously served in the House (indicated by an “H” below) have a more diverse record, including Tammy Baldwin, who voted against all but the rule allowing REAL ID to be attached to the bill that carried it into law.

Senate Republicans

  • Thad Cochran (MS), Chairman 100% in favor of a national ID
  • Mitch McConnell (KY) 100% in favor of a national ID
  • Richard C. Shelby (AL) 100% in favor of a national ID
  • Lamar Alexander (TN) 100% in favor of a national ID
  • Susan Collins (ME) 100% in favor of a national ID
  • Lindsey Graham (SC) 100% in favor of a national ID
  • Mark Kirk (IL) - H  100% in favor of a national ID
  • Roy Blunt (MO) - H 100% in favor of a national ID
  • Jerry Moran (KS) - H 100% in favor of a national ID
  • John Boozman (AR) - H 100% in favor of a national ID
  • Shelley Moore Capito (WV) - H 100% in favor of a national ID

Lisa Murkowski (AK), John Hoeven (ND), Bill Cassidy (LA), James Lankford (OK), and Steve Daines (MT) did not serve in the Senate or House during passage of REAL ID.

Senate Democrats

  • Barbara Mikulski (MD), ranking member 100% in favor of a national ID
  • Patrick J. Leahy (VT) 100% in favor of a national ID
  • Patty Murray (WA) 100% in favor of a national ID
  • Dianne Feinstein (CA) 100% in favor of a national ID
  • Richard J. Durbin (IL) 100% in favor of a national ID
  • Jack Reed (RI) 100% in favor of a national ID
  • Tom Udall (NM) - H 75% in favor of a national ID
  • Tammy Baldwin (WI) - H 25% in favor of a national ID

Jon Tester (MT), Jeanne Shaheen (NH), Jeff Merkley (OR), Chris Coons (DE), Brian Schatz (HI), and Christopher Murphy (CT) did not serve in the House during passage of REAL ID.

In 2008, Senator Tester came to Cato to denounce the REAL ID law, but he hasn’t done anything that we know of to defund the national ID program using his share of power over the purse.

Fair-minded people may object that it’s unfair to count a vote on a bulky appropriations bill as pro-national-ID, or to do the same with standing by as a voice vote happens on a rule for debate in the House. But do you know what principled fighters for our liberties do? They vote against big, “important” bills because liberty is the most important thing. They buck the leadership and their colleagues’ precious deals to take down a bad rule.

There’s more to learn about the behavior of some of the shorter-serving members of the appropriations committees. They may have records that show where they are on national ID funding. If they’ve been going along with Department of Homeland Security spending bills that happen to include funding for REAL ID, that’s a pro-national-ID position that you just might be reading about here in the near future.

Earlier today in Vienna, international negotiators reached a deal with Iran over its nuclear program. The New York Times reports that the agreement will eventually lift oil and financial sanctions, “in return for limits on Iran’s nuclear production capability and fuel stockpile over the next 15 years.” The international restrictions on Iranian arms exports will remain in place for up to 5 years, and the ban on ballistic missile exports could remain for up to 8 years. 

In a televised statement this morning, President Obama defended his decision to engage in the negotiations “from a position of strength” and assured the American people that, under the deal, “Iran will not be able to achieve a nuclear weapon.” His opponents are sure to challenge both assertions. 

The deal, Obama said, “is not built on trust, it is built on verification.” Those verification provisions appeared to have been one of the final sticking points in the negotiations. According to the Associated Press, the Iranians agreed to allow inspection of Iranian military sites, “something the country’s supreme leader, Ayatollah Ali Khamenei, had long vowed to oppose,” but such inspections are not the surprise, snap inspections that some had pushed for. 

The focus now turns to the Senate, which has 60 days to review the agreement. Senators could vote to block it, but Obama has already pledged that he would veto any legislation that prohibits the deal’s implementation. He has a reasonably strong hand to play. Even if all Senate Republicans vote to kill the deal, opponents would need at least a dozen Senate Democrats to vote with them in order to override the president. 

Expect the details of the nearly 100-page document to come under close scrutiny, even though many opponents don’t appear to believe that the specifics matter that much. For them, nearly any deal is a bad deal. 

For example, the latest entrant into the 2016 Republican presidential contest, Wisconsin Governor Scott Walker, yesterday pledged to “terminate the bad deal with Iran on Day One” – before the terms were even finalized. And he predicted that any other Republican president would do the same. Arkansas’s freshman Senator Tom Cotton has publicly stated that his object has been to blow up any deal. For Walker, Cotton, and others you don’t negotiate with a regime like Iran’s – you destroy it. 

But counter proliferation by means of regime change has a bad odor today, thanks chiefly to the Iraq war that, coincidentally, many of the most outspoken Iran deal opponents had a hand in pushing on the American people beginning in the late 1990s. 

They have learned nothing, it appears, but most Americans have: refusing to engage diplomatically with an odious regime, or waging war to separate said regime from its weapons – by removing the regime from power – is a costly proposition, and there is no guarantee that the government that emerges in its place will be better than that which came before. George W. Bush came around to this view by the middle of his second term in office: the man who in 2002 cast Iran as a charter member of the Axis of Evil – along with Iraq and North Korea – supported the P5 + 1 negotiating process that eventually led to today’s deal. 

So keep all this in mind in the coming weeks as the details of the Iran deal are debated in Washington and around the country. Deal opponents have an obligation to describe their preferred alternative, not merely what they are against.

Today the French celebrate the 226th anniversary of the storming of the Bastille on July 14, 1789, the date usually recognized as the beginning of the French Revolution. What should libertarians (or classical liberals) think of the French Revolution?

The Chinese premier Zhou Enlai is famously (but apparently inaccurately) quoted as saying, “It is too soon to tell.” I like to draw on the wisdom of another mid-20th-century thinker, Henny Youngman, who when asked “How’s your wife?” answered, “Compared to what?” Compared to the American Revolution, the French Revolution is very disappointing to libertarians. Compared to the Russian Revolution, it looks pretty good. And it also looks good, at least in the long view, compared to the ancien regime that preceded it.

Conservatives typically follow Edmund Burke’s critical view in his Reflections on the Revolution in France. They may even quote John Adams: “Helvetius and Rousseau preached to the French nation liberty, till they made them the most mechanical slaves; equality, till they destroyed all equity; humanity, till they became weasels and African panthers; and fraternity, till they cut one another’s throats like Roman gladiators.”

But there’s another view. And visitors to Mount Vernon, the home of George Washington, get a glimpse of it when they see a key hanging in a place of honor. It’s one of the keys to the Bastille, sent to Washington by Lafayette by way of Thomas Paine. They understood, as the great historian A.V. Dicey put it, that “The Bastille was the outward visible sign of lawless power.” And thus keys to the Bastille were symbols of liberation from tyranny.

Traditionalist conservatives sometimes long for “the world we have lost” before liberalism and capitalism upended the natural order of the world. The diplomat Talleyrand said, “Those who haven’t lived in the eighteenth century before the Revolution do not know the sweetness of living.” But not everyone found it so sweet. Lord Acton wrote that for decades before the revolution “the Church was oppressed, the Protestants persecuted or exiled, … the people exhausted by taxes and wars.” The rise of absolutism had centralized power and led to the growth of administrative bureaucracies on top of the feudal land monopolies and restrictive guilds.

The economic causes of the French Revolution are sometimes insufficiently appreciated. In his book The French Revolution: An Economic Interpretation, Florin Aftalion outlines some of those causes. The French state engaged in wars throughout the 17th and 18th centuries. To pay for the wars, it employed complex and burdensome taxation, tax farming, borrowing, debt repudiation and forced “disgorgement” from the financiers, and debasement of the currency. Lord Acton wrote that people had been anticipating revolution in France for a century. And revolution came.

Liberals and libertarians admired the fundamental values it represented. Ludwig von Mises and F. A. Hayek both hailed “the ideas of 1789” and contrasted them with “the ideas of 1914” — that is, liberty versus state-directed organization.

The Declaration of the Rights of Man, issued a month after the fall of the Bastille, enunciated libertarian principles similar to those of the Declaration of Independence:

1. Men are born and remain free and equal in rights… .

2. The aim of all political association is the preservation of the natural and imprescriptible rights of man. These rights are liberty, property, security, and resistance to oppression… .

4. Liberty consists in the freedom to do everything which injures no one else; hence the exercise of the natural rights of each man has no limits except those which assure to the other members of the society the enjoyment of the same rights… .

17. [P]roperty is an inviolable and sacred right.

But it also contained some dissonant notes, notably:

3. The principle of all sovereignty resides essentially in the nation. No body nor individual may exercise any authority which does not proceed directly from the nation… .

6. Law is the expression of the general will.

A liberal interpretation of those clauses would stress that sovereignty is now rested in the people (like “Governments are instituted among Men, deriving their just powers from the consent of the governed”), not in any individual, family, or class. But those phrases are also subject to illiberal interpretation and indeed can be traced to an illiberal provenance. The liberal Benjamin Constant blamed many of France’s ensuing problems on Jean-Jacques Rousseau, often very wrongly thought to be a liberal: “By transposing into our modern age an extent of social power, of collective sovereignty, which belonged to other centuries, this sublime genius, animated by the purest love of liberty, has nevertheless furnished deadly pretexts for more than one kind of tyranny.” That is, Rousseau and too many other Frenchmen thought that liberty consisted in being part of a self-governing community rather than the individual right to worship, trade, speak, and “come and go as we please.”

The results of that philosophical error—that the state is the embodiment of the “general will,” which is sovereign and thus unconstrained—have often been disastrous, and conservatives point to the Reign of Terror in 1793-94 as the precursor of similar terrors in totalitarian countries from the Soviet Union to Pol Pot’s Cambodia.

In Europe, the results of creating democratic but essentially unconstrained governments have been far different but still disappointing to liberals. As Hayek wrote in The Constitution of Liberty:

The decisive factor which made the efforts of the Revolution toward the enhancement of individual liberty so abortive was that it created the belief that, since at last all power had been placed in the hands of the people, all safeguards against the abuse of this power had become unnecessary.

Governments could become vast, expensive, debt-ridden, intrusive, and burdensome, even though they remained subject to periodic elections and largely respectful of civil and personal liberties. A century after the French Revolution, Herbert Spencer worried that the divine right of kings had been replaced by “the divine right of parliaments.”

Still, as Constant celebrated in 1816, in England, France, and the United States, liberty

is the right to be subjected only to the laws, and to be neither arrested, detained, put to death or maltreated in any way by the arbitrary will of one or more individuals. It is the right of everyone to express their opinion, choose a profession and practice it, to dispose of property, and even to abuse it; to come and go without permission, and without having to account for their motives or undertakings. It is everyone’s right to associate with other individuals, either to discuss their interests, or to profess the religion which they and their associates prefer, or even simply to occupy their days or hours in a way which is most compatible with their inclinations or whims.

Compared to the ancien regime of monarchy, aristocracy, class, monopoly, mercantilism, religious uniformity, and arbitrary power, that’s the triumph of liberalism.