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Over a decade ago, James Hamilton was convicted of a felony in Virginia, for which he served no jail time. Since then, the state of Virginia has restored all of his civil rights, including the right to possess firearms. In the years since then, Hamilton has worked as an armed guard, firearms instructor, and protective officer for the Department of Homeland Security. Despite never exhibiting any violent tendencies and leading a stable family, the state of Maryland, where Hamilton now resides, forbids him from possessing firearms because of that decade-old Virginia conviction.

Hamilton challenged Maryland’s absolute prohibition on the possession of firearms by felons as applied to him, arguing that, while there may be reasons for forbidding some felons from owning firearms, the prohibition made no sense when applied to him, a person who committed a non-violent felony over a decade ago. The Fourth Circuit, however, decided that Hamilton was not eligible to bring an as-applied challenge to Maryland’s law, leaving states in the Fourth Circuit wide latitude to abuse the constitutional rights of a huge class of citizens and leaving those citizens with no way to vindicate their rights.

On petition to the Supreme Court, Cato submitted a brief as amicus curiae, arguing for the court to hear Hamilton’s case. We argued that, by allowing the Fourth Circuit to defer to state legislatures in defining who is and is not entitled to Second Amendment protection, the Fourth Circuit allowed Maryland to define the scope of a constitutional right, in direct contravention of Supreme Court precedent, specifically Heller. In general, lower courts have shown tremendous zeal in treating the Second Amendment as a second-class right—even after Heller and McDonald—and those concerns are magnified here, where the Fourth Circuit ruled that a person cannot even bring an as-applied challenge to a law that burdens the exercise of a constitutional right. The Fourth Circuit justified its position by quoting Supreme Court language referring to felon-in-possession bans as “presumptively constitutional.” However, that is not how the Fourth Circuit has treated this law. A restriction that is not capable of being defeated is not “presumptively lawful,” it is absolutely and inviolably lawful, and thus we urged the Supreme Court to step in and rein in this abuse by the lower court. The Supreme Court declined.

Hamilton is another in a long line of Second Amendment cases that the Supreme Court has refused to hear, including one just last week challenging Maryland’s “assault weapons” ban. Hamilton is particularly unfortunate because, if taken far enough, states could deny large portions of their citizens the right to keep and bear arms without any way to remedy their loss. Hamilton’s case was a great vessel for the Supreme Court to clarify Heller and McDonald and finally force the circuit courts to make Second Amendment decisions with some modicum of consistency. A decade-old, non-violent, non-firearm-related felony for which Hamilton served no time is no reason to strip him of the basic human right of effective self-defense.

There are good reasons to believe that fraud took place in Honduras’ presidential election. The Economist did a statistical analysis of the election results and found “reasons to worry” about the integrity of the vote—although they were not conclusive. A report from the Organization of American States Observation Mission points out “irregularities, mistakes, and systemic problems plaguing this election [that] make it difficult… to be certain about the outcome.”

At the heart of the controversy is how the results of the presidential election shifted dramatically after a blackout in the release of information that lasted nearly 38 hours. A first report released by the Electoral Tribunal (TSE) on Monday 27 November at 1:30 am (ten hours after polls closed and after both leading contenders had declared themselves the winners) showed opposition candidate Salvador Nasralla leading incumbent president Juan Orlando Hernández 45.17% versus 40.21%, with 57.18% of tally sheets from polling stations counted.

Then came the blackout, during which officials from Hernandez’s National Party argued that the results would be reversed once the release of information resumed. Their claim was that the tally sheets initially reported came from polling stations in urban areas, whereas the National Party strongholds are in rural areas. Indeed, when the TSE began releasing information again on Tuesday afternoon, Nasralla’s five point lead steadily declined and then disappeared. With almost all votes counted, Hernández is now ahead by 1.6 points.

Other irregularities documented by the OAS include missing tally sheets, opened and incomplete containers with electoral material from polling stations, and undisclosed criteria for processing the ballots that arrived at the TSE collection center.

What now? The opposition is demanding a full Florida-style recount. This would prolong the uncertainty about who won the election, but given the extent of irregularities, it seems a fair request. However, some officials from Nasralla’s camp also claim that the election has been irretrievably tainted. Nasralla himself proposed a run-off vote with Hernández, but the constitution does not allow for such possibility. The real danger is that the opposition will reject anything short of a repeat of the election, even if there is a transparent recount. A repeat of the election, expensive as it is, would also create an ominous precedent for contesting close election results in the future.

It is also fair to say that Nasralla’s camp is not likely to concede defeat under any circumstances. His left-wing coalition—conspicuously named the “Opposition Alliance against the Dictatorship”—was going to cry foul if Nasralla was defeated, regardless of the margin. He also reneged on a signed pledge to respect the result emanating from the TSE and threatened to continue the chaos brought about by his supporters “until the country comes to an end.” Instead of being a responsible actor during the crisis, Nasralla is increasingly giving the impression that he does not want an institutional solution to it. For example, Nasralla has yet to file a formal challenge to the election, despite the fact that a legal deadline was extended until Friday in order to give his Alliance more time to do so. He has not presented evidence of manipulated tally sheets either.

There are no easy ways out of this quagmire and it is likely that one side will end up feeling cheated. Still, a solution needs to be worked out: The TSE should facilitate the verification of all the 18,103 tally sheets and, if anomalies arise, allow for a recount of those where there are discrepancies. This process should be closely monitored by observers from the Organization of American States and the European Union. It is their task to serve as ultimate arbiters and certify whether the conditions have been met for a transparent verification and recount process.

A post-election institutional arrangement could be part of the solution: Since Honduras’ Constitutional Court struck down the prohibition on presidential reelection, the Congress should establish non-consecutive reelection (such as in Chile, Costa Rica, and Uruguay). In addition, a run-off should be introduced for presidential elections. Finally, the appointment of the TSE justices should be taken away from Congress and given to the Supreme Court in order to guarantee their impartiality.  

The federal government has suffered from wasteful spending since the beginning. One of the biggest bureaucracies in the 19th century was the Bureau of Indian Affairs (BIA). An official history says, “the Indian Bureau operated under constant and often well-founded criticism of corruption and inefficiency in its handling of the millions of dollars in supplies purchased each year for the reservations.”

Senator James Lankford’s new study on wasteful spending (“Federal Fumbles”) indicates that BIA mismanagement persists, with waste and failure in its housing, education, and health care programs. I uncovered the same problems with the BIA.

“Fumbles” identifies wasteful programs across the government. The government spent $745 million on an Air Force control center that was scrapped, $85,000 for a music conductor’s birthday party, $148,950 for Alabama’s birthday party, $150,382 to document the Domaaki language in Pakistan, $1 billion for a low-value trolley in San Diego, $17 billion on erroneous EITC subsidies, and $1 billion on federal agency advertising.

Spending on such dubious activities represents a small share of the $4 trillion federal budget. But Lankford’s examples illustrate the broader overspending disease that afflicts Congress and the executive branch, which I discuss here, here, and here. Lankford’s projects are not just random failures, but rather stem from structural features of the government that induce overspending.

Senator Lankford will discuss his report at a Cato forum on Capitol Hill tomorrow at noon. Romina Boccia of Heritage, Steve Ellis of TCS, Ryan Bourne of Cato, and I will comment on the report, discuss the budget situation, and examine prospects for spending cuts. Federal spending is not a free lunch, but Cato forums are. All are welcome.

I visited the Patagonia web site looking for some Christmas presents yesterday and learned that “the president stole my land.” How horrible! So I looked into it and discovered that President Trump took federal land that was managed by a particular set of federal agencies under a particular set of restrictions and changed it into federal land managed by the very same federal agencies under a slightly different set of restrictions. Not to jump on Patagonia, whose clothing I’ve always enjoyed, but where’s the theft in that?

Of course, what Trump did was reverse changes by Presidents Clinton and Obama, who first imposed the slightly different set of restrictions in 1996 (Clinton for the Grand Staircase-Escalante) and 2016 (Obama for the Bears Ears). I can say with absolute certainty that, when they made those changes in 1996 and 2016, many people in Utah said, “the president stole our land.”

Supposedly, one issue is vandalism and destruction to Native American antiquities and artifacts. But such vandalism and destruction was equally illegal (under laws that are equally difficult to enforce) under both sets of restrictions, so claims that Trump’s decision opens the areas to more looting or devastation are red herrings.

Another issue is energy, but that isn’t very important either. Supposedly, there is coal in the Grand Staircase-Escalante area, but at the moment the United States has a surplus of coal and declining demand. Meanwhile, the state of Utah admits that Bears Ears has “very little energy potential.” So why all the fuss?

We call the federal lands public lands, but in fact it would be better to call them political lands because decisions about their use are made by the political system, not by the public. Yes, the agencies pretend that the public has a say, but the reality is that those who want to have a say have to build up political power to do it. This creates an interesting set of incentives.

First, to build political power, you have to convince people there is a crisis. Thus, a small rule change becomes “the president stole your land.” Second, to keep that political power, you have to compete with other groups who are nominally your allies, and the best way to compete is to be more radical than they are. Anyone who compromises is a sell-out and risks losing support to other more radical groups.

As a result, the political system promotes polarization and a winner-take-all mentality. There’s no need to decide whether any particular acre of land is most suitable for wilderness, grazing, timber, or mining. Instead, just demand that all land be dedicated to your favorite use.

President Trump’s reclassification of some Utah lands may lead to only minor changes in on-the-ground management, but he made them to cater to an important political constituency. The shrill response from environmental groups (and some recreation businesses such as Patagonia) caters to another political constituency, some of whom may be secretly happy to see Trump take this action so they can use it as a fund-raising and membership-building tool.

This is very different from the market system, which promotes cooperation and compromise. When a Wisconsin dairy decides to turn their milk into cheese instead of yogurt, you don’t see the National Yogurt Society sending out impassioned emails claiming “the dairy stole your yogurt.” If the price of yogurt goes up, some dairy or another will redirect some milk to yogurt production. In effect, every member of the public has a say in how milk will be used every time they buy (or don’t buy) a dairy product, which in a real sense makes markets more democratic than the political system.

Some will argue that markets can’t work for natural landscapes because they are a finite resource. But federal lands make up just 27 percent of the nation, and so long as the federal government gives away recreation and other “natural” uses of the land, private landowners have no incentive to provide such uses. If managers were allowed to charge market rates for recreation, private landowners would have an incentive to provide similar natural experiences, thus greatly increasing the land available for such uses.

Although many of my Cato colleagues would say the best way to transfer federal lands from the political system to the market system is to privatize them, I’ve argued that we can achieve the same results with less controversy by turning them into fiduciary trusts that are funded out of their own revenues, receiving no tax dollars. If fully carried out, this could take care of problems related to wildfire, endangered species, and a wide variety of other issues.

A less radical solution is the creation of collaborative partnerships that include interest groups and the agencies themselves. These are fragile (one collapsed on the death of just one partner) and often depend on continuing federal subsidies for success, so I am not as enthused about them. But they could be a short-term solution for the southern Utah monument lands.

Those who truly care about the federal lands would seek a better system than the one we have now for managing those lands. Those who seek to perpetuate the political system of management are often more interested in promoting their organizations than in improving on-the-ground management.

A headline today in the Washington Post is “Voter Database Alarms Experts.” The addition of another big government database alarms me as well. The other day I noted the huge vulnerability created by the income tax and resulting IRS data horde. And then there are federal data stockpiles for health care, security, and many other things.

Now a presidential commission apparently wants to create another juicy target for hackers.

From the Washington Post story:

More than a half-dozen technology experts and former national security officials filed an amicus brief Tuesday urging a federal court to halt the collection of voter information for a planned government database.

Former national intelligence director James R. Clapper Jr., one of the co-signatories of the brief, warned that a White House plan to create a centralized database containing sensitive information on millions of American voters will become an attractive target for nation states and criminal hackers.

… the brief focuses on the security implications of aggregating and housing sensitive information, such as names, addresses, party affiliation and partial social security numbers, in one central location, without adequate security and privacy safeguards. “A large database aggregating [personally identifiable information] of millions of American voters in one place, as the Commission has compiled and continues to compile, would constitute a treasure trove for malicious actors,” the signatories wrote.

The brief states that the commission does not appear to have established rules or procedures defining who gets access to the database or how it should be actively protected.

… Clapper and his co-signatories also said that the database will be situated on a re-purposed White House system, and not within the Department of Defense, making the information even more vulnerable to theft. “Aggregating a comprehensive and official set of such data onto one high-profile, widely publicized server maintained by the White House may reduce the technical and practical barriers to a foreign adversary acquiring such information and making use of it without detection,” the brief said.

A new Government Accountability Office (GAO) report claims that, among other issues, the Border Patrol is not efficiently deploying agents to maximize the interdiction of drugs and illegal immigrants at interior checkpoints. I wrote about this here. These checkpoints are typically 25 to 100 miles inside of the United States and are part of a “defense in depth” strategy that is intended to deter illegal behavior along the border. Border Patrol is making suboptimal choices with scarce resources when it comes to enforcing laws along the border. A theme throughout the GAO report is that Border Patrol does not have enough information to efficiently manage checkpoints. Contrary to the GAO’s findings, poor institutional incentives better explain Border Patrol inefficiencies, while a lack information is a result of those incentives. More information and metrics can actually worsen Border Patrol efficiency.

Inefficient Border Patrol Deployments

Border Patrol enforces laws in a large area along the border with Mexico. They divide the border into nine geographic sectors. They further divide each sector into stations that are further subdivided into zones, some of which are “border zones” that are actually along the Mexican border while the remainder are “interior zones” that are not along the border. The GAO reports that this organization allows officials on the zone level to deploy agents in response to changing border conditions and intelligence. 

The GAO states that Headquarters deploys Border Patrol agents to border sectors based on threats, intelligence, and the flow of illegal activity. The heads of each sector then allocate agents to specific stations and checkpoints based on the above factors as well as local ones such as geography, climate, and the proximity of private property. The heads of those stations and checkpoints then assign specific shifts to each agent. The time it takes for a Border Patrol agent to respond to reported activity, their proximity to urban areas where illegal immigrants can easily blend in, and road access all factor into these deployment decisions. 

All of the above factors that managers and supervisors consider for deployment are reasonable but it is still a management black box. How much does each of these factors matter in determining deployments? Does the relative importance of each factor shift over time or between sectors? How can we tell if one set of decisions is consistently better than another set? 

The GAO and other organizations always suggest the same solution to illuminate the black box of Border Patrol agent management decisions: more information. The Border Patrol has about 19,500 agents, about 43 percent of whom can be deployed in the field at any given time, and 143 checkpoint locations along the Southwest border. The GAO has access to extensive data on Border Patrol deployments from the Border Patrol Enforcement Tracking System (BPETS), GPS coordinates for some enforcement operations, seizure information, and the time use of Border Patrol agents by sector when they are on duty. Border Patrol likely has more information available that GAO has not analyzed.  

Yet, more information is always insufficient at gauging the efficiency of agent deployment at checkpoints. The recent GAO report notes that “checkpoints’ role in apprehensions and seizures is difficult to measure with precision because of long-standing data quality issues” that the GAO first complained about in 2009. Checkpoints did not consistently report apprehensions as some included any apprehension within a 2.5-mile radius of a checkpoint as apprehended by the checkpoint, while others had different definitional radii and reporting standards. As a result, the number of apprehensions and seizures cannot be determined. The data reporting “issues continue to affect how Border Patrol monitors and reports on checkpoint performance results” despite several memoranda that were supposed to remedy the data collection issues. Border Patrol finally created the Checkpoint Program Management Office (CPMO) in 2016 that is supposed to remedy data collection inconsistencies. 

The GAO report calls for more detailed information, such as distinguishing whether an illegal immigrant detention occurs “at” rather than “around” a Border Patrol checkpoint. The GAO also suggests accurate “workplace planning needs assessments” to make sure that checkpoints are manned and operated properly. GAO asks Border Patrol to implement internal controls to ensure data accuracy, consistency, and completeness to overcome problems like supervisors who are not required to update BPETS if their actual deployments differ from those planned and recorded in BPETS. Border Patrol should also study the impact of checkpoints on local communities when considering agent deployment. Finally, GAO reiterates its call for an accurate “workplace planning needs assessment” to make sure that checkpoints are manned and operated properly. How Border Patrol is supposed to integrate these new metrics with existing metrics is a mystery.

The Incentive to Patrol the Border

Government law enforcement agencies do have difficult or, in many cases, impossible jobs. Interrupting supply and demand by stopping the flow of unlawful drugs and illegal immigrants into the United States is as Sisyphean a task as Soviet criminal investigators who attempted to stop the black market in gasoline or food. More information won’t remedy the agent deployment problems at Border Patrol, CBP, or any other government agency. The problem with these agencies is not a lack of information but bad incentives. 

The performance of government agents isn’t measured by profit and loss as it is in the private sector but by political factors. In the language of economics, Border Patrol faces a principal-agent problem. Principals are the owners and the agents work for them. That sounds simple enough but principals and agents have different incentives. For instance, principals in private enterprise want to maximize profit while many of their agents (workers) want compensation for doing as little as possible or diverting resources into their own pockets. Principals thus have to structure compensation and manage in such a way as to align the incentives of workers and employees through profit sharing, other financial incentives, or through myriad other ways to mitigate these problems. Information is vital to mitigating a principal-agent problem (it can never be fully solved) but more information by itself without the incentive to use it wisely is wasted.

The Border Patrol principals are the politicians who ultimately determine its budget and appoint the heads of the organization. The incentive of the principals is to stay in elected office by winning elections. Border Patrol employees are the agents who supposedly work for the principals. Satisfying political constituencies has little to do with actually enforcing the law as written. For instance, enforcement of immigration laws typically declines during times of economic growth because businesses demand more workers and labor unions complain less about illegal immigrant workers. No lobbying of Congress is necessary, merely the reactions of Border Patrol employees to changing economic circumstances in anticipation of what they think politicians want. 

What those politicians want changes over time based on what they think the electorate wants. In the past, economic growth was a better predictor of immigration enforcement. Now, immigration-induced changes in local demographics, cultural complaints, and the idea that immigrants and their descendants will vote against incumbent political parties also drive support for immigration enforcement. Thus, removing illegal immigrants is the latest iteration of the Curley Effect. Countering this trend are pro-immigration local policies like Sanctuary Cities, as well as states like Illinois and California that restrict local police cooperation with federal law enforcement.

More Information Can Worsen Management

The call for more information and better metrics for measuring border security is well intentioned but it can also backfire. Some information is required to make accurate decisions but, beyond a certain point, too much information can produce information overload, whereby decisions become less accurate as the decision maker learns more (Figure 1). Information beyond the overload point will confuse a decision maker, affect his or her ability to set priorities, and worsen recall of prior information. A fundamental concept in economics is scarcity, which occurs when there is not enough supply of a good to satisfy all demand at a price of zero. Information overload is a reminder that human attention span, information processing capacity, and accurate decision-making ability are also scarce resources.

Figure 1

Information Overload as the Inverted U-Curve

Source: Martin J. Eppler and Jeanne Mengis.

Information overload can take several forms. Some scholars emphasize how much time it takes to absorb new information, which can diminish the accuracy of decisions that require timely action. That case is most similar to the timeliness of intelligence reports in guiding Border Patrol agent deployment. The value of most intelligence depreciates rapidly and, if it is accurate, must be quickly acted upon to have an effect. Other scholars focus on the quality of information, as it is difficult to measure that without first absorbing it and comparing it to other information. Estimates of the size of black markets, a crucial metric for Border Patrol, are fraught with errors and it is nearly impossible to tell which one is correct. Tasks that are reoccurring routines produce less information overload than more complex and varied tasks. As mentioned above, the organizational design of a firm is another important factor that influences information overload. 

Smugglers and illegal immigrants compound the problem of information overload as they change their behavior in response to Border Patrol policies. Smugglers and illegal immigrants rarely want to be apprehended so they shift away from patrols or areas where there is more enforcement. In the mid-2000s, illegal Mexican border crossers moved east from California and west from Texas into Arizona because of border security. More enforcement in Arizona after 2010 then shifted illegal immigrant entry attempts back east toward Texas. Their constant movement and reaction to Border Patrol and immigration enforcement generally creates more complexity and information that the agency must process. 

The symptoms of information overload are a lack of perspective, cognitive strain and stress, a greater tolerance for error, low morale, and the inability to use information to make a decision. Those symptoms are all common at Border Patrol and its parent organization, the Department of Homeland Security. In terms of a lack of perspective, the chaos below the border is a supposed “existential threat.” Meanwhile, the tolerance for performance and discipline problems in Border Patrol personnel has festered for over a decade, producing numerous errors of all kindsMorale has historically been low in Border Patrol and has only risen recently due to the election of President Trump.     

One common reaction to information overload is that decision makers become highly selective, ignore vast amounts of information, and cherry pick that information which confirms their biases. Information never speaks for itself and it must always be interpreted and applied. By increasing the quantity of information available to managers and supervisors at Border Patrol, their actions could become more erratic and less efficient because they will be able to pull from a vaster array of justifications for their decisions. Like any other self-interested actors, Border Patrol will always select and interpret information to justify the actions they want to undertake while discounting information that supports another course of action. The principal-agent problem means that this rarely gets corrected. 

For instance, 9.4 percent of Border Patrol hours were spent manning checkpoints from 2013–2016. Yet those checkpoints were only responsible for, at most, 3.1 percent of all illegal immigrants apprehended by Border Patrol in those years and 5.4 percent of all marijuana seizures by weight (Figure 2). That might look like an inefficient allocation of Border Patrol agents, but a smart manager can always argue the opposite by saying, as an example, “we don’t catch many illegal immigrants at checkpoints because checkpoints are so effective at deterring illegal immigrants from even trying to use to the road. Imagine how many there’d be without the checkpoints!” That manager would have a good point. 

Figure 2

Percent of Illegal Immigrant Apprehensions & Drug Seizures Made by Border Patrol by Location, 2013–2016


Source: Government Accountability Office, p. 41.

A border wall that diverts illegal immigrants into the interior and away from cities can be used as support for a longer wall to “extend the gains” or as support for no wall at all because “illegal immigrants are just diverted to more remote areas where agents now have to patrol with greater hazards.” More information and data could worsen the decisions made by Border Patrol managers. 

Back to Incentives

Firms employ countermeasures to information overload, such as better technology and algorithms to select the best data, but the countermeasures are only effective if the managers want to make more accurate decisions. The desire to make accurate decisions in a large organization comes back to incentives, which government agencies have a very difficult time aligning with the stated intent of the law.     

If the incentives to act efficiently are in place then the actor has the incentive to discover the information necessary to carry out his task. But perfect information cannot fix poor incentives and, in fact, can make them worse. Rather than focusing on hiring statisticians, econometricians, and other technocrats to create ever-new metrics to judge government efficiency, Congress should think carefully about aligning incentives to get the outcomes they want. That is a near-impossible job for politicians to tackle so, in most cases, they should just pull back the reach of federal law enforcement to focus on a handful of tasks. 


The best information in the world cannot compensate for poor incentives and can make government management less efficient by providing cover for any choice. Government agents are not usually malevolent, or at least any more so than the rest of us, but they have incentives to satisfy political demands. Private firms that behave in these ways often fail or earn lower profits unless they are bailed out by the government, which is usually the source of these poor incentives in the first place. More metrics can even worsen efficiency. We should look to deeper structural reforms of government agencies rather than continuing to appeal to a priesthood of statisticians and econometricians to produce information to guide us.

After this morning’s Supreme Court argument in the Colorado wedding-cake case, the only thing that safe to predict about this case is that it’ll end up 5-4. It’s perhaps unavoidable that a case so politically fraught would break down on conventional ideological lines, with the four “conservatives” (presumably including the silent Justice Clarence Thomas) siding with the baker who didn’t want to create a custom cake for a same-sex wedding, the four “liberals” siding with the couple that wants to use the state’s anti-discrimination law to compel him to do so, and Justice Anthony Kennedy somewhere in the middle. But it’s disappointing – and it’s especially disconcerting that Justice Sonia Sotomayor kept comparing this case to Piggie Park, Katzenbach v. McClung, and other cases from the Jim Crow Era when African Americans were denied service at restaurants altogether.

It’s telling that none of the wedding-vendor cases we’ve seen in the courts (or in the news) the last few years have involved any business that refuses to serve gay people altogether. Jack Phillips certainly has – and offered to sell Charlie Craig and David Mullins anything on display in his store – as has Barronelle Stutzman, the Washington florist whose fate likely depends on the outcome of Masterpiece Cakeshop v. Colorado Civil Rights Commission. We simply don’t have situations like we did in the 1960s when businesses claimed both a religious and expressive right not to accept racial minorities as customers.

If some business, wedding-related or otherwise, didn’t want to serve gay people, that would be an easy case under Supreme Court precedent (leaving the question of the common-law freedom of association to one side). Instead, it’s quite clear to me that not wanting to convey a message of affirmation for a particular event is different from refusing to serve people based on their identity – and also that Jack Phillips’s gorgeous sculptures are just as protected by the First Amendment when made with fondant as they would if made with plaster.

Indeed, unless a “BBQ artist” is asked to concoct some sort of meat-statue with his tender-smoked goodness, there’s no parallel here. That’s why we wrote in our brief that “wedding (and other) vendors who produce and sell expressive works must be free to accept or reject particular jobs, [but] this right does not apply to those who do not engage in protected speech.” “Creating expressive [products] is constitutionally different than nonexpressive activity like delivering food, renting out ballrooms, or driving limousines.”

But that position may not get five votes; Justice Kennedy seemed to focus on the religious animus at play, as well as the uneven way in which the Colorado Civil Rights Commission has applied its law. Indeed, in a line of questioning that has provoked the most pessimism from the pro-force forces, he highlighted that “tolerance is essential in a free society.” In an echo of his opinion in Obergefell, the case that two years ago established same-sex couples’ right to marry, Kennedy said, “It seems to me that the state in its position here has been neither tolerant nor respectful.”

Still, it’s hard to see the grand champion of free speech forcing a baker (or anyone) to express a message he disagrees with, regardless of the implications for religious freedom. As he wrote in Obergefell, “The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons.” It just shouldn’t matter whether an artistic professional declines a expressive commission for reasons that are religious, secular, or “good” or “bad” – or none at all.

There are many ways the Supreme Court could slice this case, with many dividing lines that are anything but half-baked. But, to carry over a theme from yesterday’s case, I wouldn’t bet on any particular outcome.

You can read the argument transcript here and, for an audio-visual version of the same sort of debate, see video of my debate at Cato yesterday.

Spain is now known to food lovers as one of the great cheese producers of the world, but it wasn’t always so. At one of my favorite websites, Atlas Obscura, Jackie Bryant tells the story of how “one of Europe’s oldest and most varied artisanal cheesemaking cultures… was once entirely illegal. And its survival can be largely attributed to a black market of underground cheese.”

The villain in the piece is dictator Francisco Franco, who ruled from 1939 until his death in 1975, his policies on this subject lingering on for some years thereafter. With a taste for centralized command, Franco wanted to impose mass production and its efficiencies of scale on the dairy sector: 

As part of this policy, quotas were enacted that outlawed milk production under 10,000 liters a day. This made small dairies and cheesemaking productions… illegal. To comply with the law, they had to sell their milk to larger companies.

Enric Canut, a Barcelona-born cheesemaker, agricultural engineer, and dairy consultant, recalls a catalogue of Spanish cheeses compiled by the government in 1964. “Five years later,” he says, “most of those same cheeses were illegal!”

So traditional cheesemaking went underground. Especially in independent-minded rural areas like Galicia, most farmers quietly defied the government. They would report milk as having been personally consumed by the farm family itself, even if that meant by the hundreds of gallons a week. And they would meet in covert open-air markets – at times like 5 in the morning – to sell their wares beyond the view of inspectors. 

Canut later reported to the government that at least 25% of daily milk production in Spain went towards making illegal cheese. It was a remarkable refutation of the government’s policy. Franco had imagined large, industrial operations. Instead Spaniards enthusiastically supported small, black market cheesemakers who, as Canut remembers from visits throughout Spain in the 1970s, sometimes kept their cheese in actual caves….

Franco’s policies were slowly phased out, and, in 1985, dairies of all sizes became legal. Canut estimates that in a decade, Spain went from having almost no small dairies to having nearly 1,000—a combination of upstarts and illicit dairies that had been producing all along.

Fom there, another 20 years brings us to the current runaway success story of specialty Spanish cheeses, which figure on the menu at many Michelin-starred restaurants. Read the whole piece here.

P.S. Two weeks ago in this space I quoted an Atlas Obscura report on how here in the U.S. the FDA’s trans fat ban was making life hard for the little business that bakes Baltimore’s fudge-draped Berger cookie. Shortly after that the Baltimore Sun in its own follow-up report revealed a couple of further twists: while the company’s frosting supplier had managed to solve its trans fat problem, it did so in a way that exposed the cookie maker to a new regulatory trip-up. I explain in this Overlawyered post.   

There is a lot that’s wrong with U.S. foreign policy right now, but a broader look at U.S. grand strategy in the post-Cold War era reveals just how broken things have been across administrations of both parties.

The post-Cold War era has seen a continuation of a long global trend toward greater peace and stability, lower rates of conflict, and zero great power wars. More peace and diminishing threats have merely enhanced the remarkable security already enjoyed by the United States thanks to its geographic isolation, weak neighbors, unparalleled economic and military power, and its nuclear deterrent.

But America doesn’t act as if it is safe. Instead, we have a hyper-interventionist foreign policy. Over the last century, according to the Rand Corporation, “there was only one brief period – the four years immediately after U.S. withdrawal from Vietnam – during which the United States did not engage in any interventions abroad.” Indeed, “the number and scale of U.S. military interventions rose rapidly in the aftermath of the Cold War, just as [rates of global] conflict began to subside.”

According to data from the Congressional Research Service, the United States has engaged in more military interventions in the past 28 years than it had in the previous 190 years of its existence.* About 46 percent of Americans have lived the majority of their lives with the United States at war. Twenty-one percent have lived their entire lives in a state of war.

This suggests a truly perverse defect in the way we are carrying out foreign policy. In an era of unprecedented peace and stability, which should permit a less activist foreign policy, we are finding reasons to intervene militarily at an extraordinary pace, making the past three decades a significant outlier in U.S. history.

America’s role in the world underwent a massive expansion following WWII and again at the end of the Cold War. Washington adopted policies and built bureaucracies that incentivized interventionism. As Joseph Schumpeter once put it in an essay on imperialism, “Created by the wars that required it, the machine now created the wars it required.”

In some ways, Americans have been insulated from the worst effects of this aberrant post-Cold War foreign policy (the costs have been borne more acutely by certain foreign populations on the receiving end of it). However, there have been costs here at home. The United States has spent almost $15 trillion on its military since 1990, an enormous price tag that far exceeds what any other country has spent. This constant state of war also tends to undermine liberal values at home by eroding constitutional checks and balances on war powers, incentivizing excessive government secrecy, and infringing on civil liberties in the name of security. In the oft-cited words of James Madison, “No nation could preserve its freedom in the midst of continual warfare.”

As predicted, Donald Trump has maintained and in some ways expanded America’s militaristic and interventionist role in the world. And Trump’s rise is arguably another indication of how democratic norms can erode in the midst of continual warfare. As with most things, however, America’s unusual post-Cold War foreign policy and Trump’s convention-violating brashness has in many ways become normalized.

If we are ever to break out of this apathy and return once again to a realistic and prudent foreign policy commensurate with the low-threat environment we currently inhabit, we will have to reckon with the steep costs of this expansive grand strategy and wrangle the self-sustaining national security bureaucracy into the austerity it desperately needs.

*The data from the CRS report is helpful, but imperfect and incomplete. It lists 416 “notable deployments of U.S. military forces overseas” from 1798-2017. It lists 212 interventions between 1798 and January 1989 and 204 since then. However, many of the individual items listed in the 19th century involve minor actions like deploying a small naval force to gain the release of a captured U.S. citizen abroad or shows of force against pirates or mischievous whalers – deployments that are too minor to merit an individual itemized listing in later periods. Furthermore, “covert operations, disaster relief, and routine alliance stationing and training exercises are not included,” activities that are far more frequent now than they were in the past. One should consider the multiple covert undeclared drone wars the United States has waged in the post-9/11 era and, of course, programs of coordination with foreign militaries in conflict areas where U.S. forces get killed or wounded, as in Niger recently, but which do not make it on to the list. Finally, CRS bundled many individual post-9/11 deployments and interventions together as a single item on the list, even though they are clearly distinct and included multiple countries in separate regions of the world. This is likely because the executive branch bundled them together when informing Congress of the deployments, which is the primary source for CRS’s data. Completely and accurately accounting for these discrepancies would require a full-length study, but my own ad hoc, and I think conservative, adjustments led me to a breakdown of 199 interventions from 1798 to January 1989 and 213 from 1989 to today. 

House Minority Leader and former speaker Nancy Pelosi says that the Republican tax bill, “with stiff competition by some of the other things they have put forth, is the worst bill in the history of the United States Congress.”

That is a tall order. A quick search of the history of the United States Congress reveals that Congress has passed:

the Alien and Sedition Acts in 1798

the Indian Removal Act in 1830

the Fugitive Slave Act in 1850

Public Law 503, codifying President Franklin D. Roosevelt’s Executive Order 9066 authorizing the internment of Japanese, German, and Italian Americans, in 1942

the Eighteenth Amendment (Prohibition), the Espionage Act, and the Selective Service Act, and entered World War I, all in 1917

the Universal Military Training and Service Act in 1951

the Tonkin Gulf Resolution in 1964

the USA PATRIOT Act in 2001 (Pelosi voted for this)

the National Defense Authorization Act, featuring indefinite detention, in 2011 (Pelosi voted for this)

I don’t think the current tax bill is even in the running.

I suppose hyperbole is to be expected in Congress. But this was said on the floor of the House by the former speaker, so presumably it was carefully thought out. I do hope that Leader Pelosi will be granted permission to revise and extend her remarks.

Last month we posted our first “dispatch” from the frontlines of public schooling’s values and identity-based wars, conflicts ultimately entered on the Public Schooling Battle Map, an interactive database of such contests. The monthly dispatch is intended to lay out some of the themes we’ve observed in battles during the month, and to give you a sense over which basic values the public schools—inherently zero-sum arenas—have people battling. Here are the themes of November:

  • Discriminatory Dress Codes: Allegations that school dress codes discriminate against girls, proscribing lots of attire options for them on the grounds that they are too revealing—and may be distracting for boys—while prohibiting far less for the guys were prevalent in November. Of course, dress code conflicts are not new—the Battle Map contains nearly 90 such fights—but it seems those fueled by accusations of gender discrimination, as opposed to, say, freedom of expression, may be growing. Conflicts in November flared up in Oxnard, CA; Loyalsock Township, PA; and Washington Township, IN.
  • Sex Ed: Putting at odds basic beliefs about moral behavior, health, and age appropriateness of instruction, sex education has been a war zone for decades. But it seemed to have faded at bit over the last few years, eclipsed by contests over bathroom access and other, even hotter-button issues. But it made a bit of return in November, with battles over proposed online, parent-selected sex education in Utah; the presence of Sex, Etc. magazine—with articles such as “Where do you stand on Friends With Benefits?” and “The clitoris and pleasure: What you should know”—in a New Jersey middle school; and a proposal in Niagara Falls, NY that could involve escorting Planned Parenthood reps through schools.
  • Curricula: What public schools teach is, of course, controversial, beyond the extremely contentious subject of sex education. In November we also saw Mexican American studies—and one proposed textbook in particular—create fireworks in Texas; disagreements over the definition of “civic readiness” in Nebraska; and a proposal in Florida not just to let parents challenge textbooks, but propose replacements.

There were lots of other conflicts—over The Hate U Give, Bible study, and more—but these seem to be the trends.

By the way, over on the Battle Map Facebook page we have started posting twice-weekly polls on the kinds of conflicts we see repeatedly. They are not scientific, and we are just starting to build traffic on the page, but they often suggest significant divides among, presumably, perfectly decent people. For instance, our question whether school officials or students should decide which bathrooms and locker rooms students can use saw an almost 50/50 split, with 48 percent choosing “public school officials” and 52 percent “students.” Asked whether the tenor of American history taught in public schools tends to be “too critical” or “too celebratory,” 65 percent chose the latter, but a still significant 35 percent picked the former.

Now, head over to the Facebook page and vote on the active questions: Should student journalists or school administrators ultimately decide what gets published in school newspapers, and who should decide what kids read in public schools? Also, please send any values or identity-based battles you find to nmccluskey [at] And ask yourself: Why should we be forced to fight, or sacrifice what matters to us, in educating our children? Why shouldn’t we be free to choose?

Today, the Department of Homeland Security (DHS) released a report detailing deportations (henceforth “removals”) conducted by Immigration and Customs Enforcement (ICE) during the fiscal year of 2017.  This post presents data on removals in historical context combined with information from Pew and the Center for Migration Studies

ICE deported 81,603 illegal immigrants from the interior of the United States in 2017, up from 65,332 in 2016.  Removals from the interior peaked during the Obama administration in 2011 at 237,941 (Figure 1).  ICE also removed large numbers of people apprehended at the border.  Since 2012, border removals have outnumbered those from the interior of the United States.

Figure 1

Interior and Border Removals by ICE, 2008-2017


Source: Immigration and Customs Enforcement.

The Obama administration removed 1,242,486 from the interior of the United States during its full eight years, averaging 155,311 removals per year.  Data from the earlier Bush administration are more speculative but they show more deportations under Obama than under Bush.    

The percentage of all illegal immigrants removed from the United States is a better measure of the intensity of interior enforcement than the total numbers removed (Figure 2).  Based on estimates of the total size of the illegal immigrant population from Pew, the Center for Migration Studies, and my own guesstimates for 2016 and 2017, 0.74 percent of that population was removed from the interior of the United States in 2017, up from 0.59 percent in 2016 but still below the 2014 percentage.  Interior removals as a percent of the illegal immigrant population peaked at 2.11 percent in 2009. 

Figure 2 

Removals as a Percent of the Illegal Immigrant Population


Sources: Immigration and Customs Enforcement, Pew, Center for Migration Studies, Author’s Estimates, Author’s Calculations.

President Obama’s administration removed an average of 1.38 percent of the interior illegal immigrant population each year of his presidency.  The Obama administration’s interior removal statistics show a downward trend beginning in 2011 and continuing until through the end of the fiscal year 2016. 

The Obama administration also focused immigration enforcement on criminal offenders (not all illegal immigrants are criminals).  During the Obama administration, 53.3 percent of all illegal immigrants removed were criminals, including those who violated immigration crimes.  The Trump administration has continued to focus on removing criminals in 2017.  However, criminal removals during the first year of Trump’s administration are slightly below those of 2016 (Figure 3).    

Figure 3

Criminal Removals as a Percent of All Removals

Source: Immigration and Customs Enforcement.

The Trump administration has just begun to ramp up interior immigration enforcement.  The 2017 figures show a reversal of the declining interior immigration enforcement efforts under the Obama administration but they have not reached peak enforcement performance yet.  The increased number of administrative arrests for immigration violations, the worsening immigration court backlog, and revival of Secure Communities all indicate that this administration will continue to increase interior immigration enforcement in subsequent years.   

Since the passage of the Affordable Care Act (ACA) in 2010, many economists have predicted that the Act will cause a reduction in labor market participation and a recent New York Times article seemingly vindicates these expectations. The article recounts how the rapid increase in insurance premiums have led Anne Cornwell to cut her working hours, and thus her yearly income, by 30 percent in order to be eligible for health insurance subsidies. The $24,000 reduction in income allowed Ms. Cornwell and her husband to qualify for $27,000 in subsidies.

Ms. Cornwell’s reduced labor market participation supports economists’ predictions based on how the ACA determines eligibility for subsidies. Subsidies are available for people who purchase coverage from health insurance exchanges created by the ACA and whose household income is between 100 and 400 percent of the Federal Poverty Level. Economists predicted that because the subsidies are based on household income instead of individual income, second earners in many households would reduce their hours in order to qualify.

In 2014, for example, the Congressional Budget Office projected that the ACA would reduce the total number of hours worked by 1.5 to 2 percent between 2017 and 2024. In terms of full-time-equivalent workers, this represents a decline of 2.5 million workers in 2024.

It is not yet clear whether Ms. Cornwell’s decision is representative of a larger population of American workers, but her situation does coincide with economists’ findings. A recent working paper by Stanford economists Mark Duggan, Gopi Shah Goda, and Emilie Jackson—which I review in the upcoming issue of Regulation—looks at how the ACA has affected labor market participation in different regions of the United States since its implementation in 2014.

While they found no change in participation in the aggregate, this result stemmed from two offsetting trends. They found an increase in labor market participation in regions where the share of uninsured and under the poverty line was larger and a reduction in participation in areas where there was a larger number of people who were uninsured and between 139 percent and 399 percent of the poverty line. “These changes suggest that middle-income individuals reduced their labor supply due to the additional tax on earnings while lower income individuals worked more in order to qualify for private insurance.”

Ms. Cornwell’s individual reduction in labor market participation is in line with these results. While the aggregate level of labor market participation may remain the same, the reduction of participation by middle-class individuals could indicate significant losses in tax revenues and employer surplus.

Written with research assistance from David Kemp.

The chair of the White House Council of Economic Advisors, Kevin Hassett, visited Cato last week to talk about tax reform. Under Kevin’s leadership, the CEA has produced two reports discussing how corporate tax cuts can boost wages and growth.

The CEA explains the basic mechanism:

reductions in the corporate tax rate incentivize corporations to pursue additional capital investments as their cost declines. Complementarities between labor and capital then imply that the demand for labor rises under capital deepening and labor becomes more productive. Standard economic theory implies that the result of more productive and more sought-after labor is an increase in the price of labor, or worker wages.

And discusses how lower taxes attract investment from abroad:

One component of investment is foreign direct investment (FDI), and numerous empirical studies … have observed that FDI is highly responsive to cross-border differences in tax rates.

And describes how high corporate taxes hurt workers in the global economy:

The fact that capital can move relatively easily across borders while labor cannot serves to intensify the burden of the corporate tax on workers.

Essentially, the CEA studies update Adam Smith with new empirical data. Writing in his Wealth of Nations, Smith described how heavy taxes on mobile “stock,” or capital, in a world with open borders would cause losses to workers and the broader economy:

Secondly, land is a subject which cannot be removed, whereas stock easily may. The proprietor of land is necessarily a citizen of the particular country in which his estate lies. The proprietor of stock is properly a citizen of the world, and is not necessarily attached to any particular country. He would be apt to abandon the country in which he was exposed to a vexatious inquisition, in order to be assessed to a burdensome tax, and would remove his stock to some other country where he could either carry on his business, or enjoy his fortune more at his ease. By removing his stock he would put an end to all the industry which it had maintained in the country which he left. Stock cultivates land; stock employs labour. A tax which tended to drive away stock from any particular country, would so far tend to dry up every source of revenue, both to the sovereign and to the society. Not only the profits of stock, but the rent of land and the wages of labour, would necessarily be more or less diminished by its removal.

Today, people have much greater ability than in Smith’s time to move their capital across borders, and so taxes on capital are more damaging than ever.

Veronique de Rugy and I discussed these issues in a 2002 paper on international tax competition. Fifteen years later, it is gratifying that Congress may finally make reforms to attract capital rather than repel it.

In our recent study on the Low-Income Housing Tax Credit (LIHTC), Vanessa Brown Calder and I discussed how subsidized housing projects usually cost more than market-based ones. There is more bureaucracy, more delays, and more micromanagement of building requirements. As in education or health care, government intervention in housing undermines cost control.

This article discusses San Diego’s efforts to supply subsidized housing, and it focuses on the cost problem. The article discusses projects financed by a combo of the LIHTC and other programs, which is apparently called a “funding lasagna.” But a “subsidy lasagna” might be more accurate.

By any measure, the city government’s efforts to help low-income families are far behind the demand for subsidies, and losing ground.

High cost has been a major factor. In recent years the public has paid luxury price tags for a handful of subsidized construction projects, draining money to build more apartments.

“They are building Cadillacs,” said Alan Nevin, director of economic and market research at Xpera Group, a building-industry consulting group.

This outcome flows from a system that evolved over years to build projects whenever public money pops up, and isn’t necessarily focused on reducing costs or producing the maximum number of apartments.

The most extreme example of high-end cost is found in Barrio Logan, according to figures provided by the San Diego Housing Commission.

Operating under a city contract, developers spent $46.2 million from federal, state and local sources to build 92 apartments at the Estrella del Mercado on National Avenue, which was completed in 2012. That works out to $502,000 per apartment.

Setting aside the Mercado project, price tags of $400,000 per subsidized unit in new complexes are the rule lately, particularly downtown. This places public housing in the same league as luxury apartments downtown, and 35 percent higher than midrange private projects in other urban neighborhoods.

Higher costs in the public sector have multiple causes. Land prices play a role, because officials want to place subsidized projects in high-cost areas. This allows low-wage workers to live near jobs.

And developer fees are much higher. Unlike private apartment builders, who count on years of rising rent to recover their investments, developers of subsidized housing require the bulk of their profits up front, because they face 55 years or more of below-market rents.

These developers must submit bids to a state agency, but those who prevail typically are chosen based on added features rather than low cost.

A third factor is government requirements. Officials typically insist on solar energy features, meeting rooms and long-lasting exteriors that aren’t always included in private developments.

In 2011, the housing commission hired Keyser Marston Associates, an industry consultant, to compare three recent subsidized projects to the costs of nearly identical developments in the private sector. The study focused on construction and development — excluding land costs.

At the Mercado, Keyser projected costs totaling $388,300 per subsidized apartment, or 31 percent more than the $297,000 price tag for an equivalent complex built for the market.

The San Diego Union-Tribune article is here.

Our study is here.

The House and Senate have passed bills cutting the federal corporate tax rate from 35 to 20 percent. This overdue reform will spur capital investment, strengthen the economy, and reduce tax avoidance. Republicans have long championed this reform, and President Trump had proposed an even lower rate.

So it was surprising that the president commented Saturday that a 22 percent rate would be fine. That would be snatching a defeat from the jaws of victory. Congressional Republicans should stick with their 20 percent. Senator Marco Rubio is incorrect that there is no economic difference between a 20 and 22 percent rate. Economics is all about decisions at the margin, and in an increasingly competitive world, every cost reduction for American businesses helps.

Policymakers need to remember that in America state taxes pile on top of federal. So while in Britain the federal rate of 19 percent is also the overall rate, our overall rate in California would still be 27 percent even as we cut our federal rate to 20.

A Council of Economic Advisors Report on corporate taxes noted that international investment flows are “highly responsive to cross-border differences in tax rates.” And further that “an additional margin along which changes in corporate tax rates are likely to affect growth is through profit shifting by U.S. firms to foreign subsidiaries … This profit-shifting has increased substantially since the 1990s.”

So for more investment flowing in, and less paper profits flowing out, we should cut our corporate tax rate as low as we can. Most other countries have figured this out, as the chart below shows.

According to KPMG, the average corporate tax rate across 171 countries today is just 24 percent. The United States with a federal-state rate of 40 percent is the outlier at the top of the chart. Rates have fallen in Africa, Asia, Europe, and Latin America. American businesses generally face their biggest competition from businesses in Asia and Europe, and those are the regions with the lowest rates.

Claims for unconstitutional takings of property against state actors should not be treated differently than other fundamental rights claims and relegated to second-class status. Thirty years ago, in Williamson County Regional Planning Commission v. Hamilton Bank, the U.S. Supreme Court pronounced a new rule that a property owner must first sue in state court to ripen a federal takings claim. As illustrated by Knick v. Township of Scott, Pennsylvania, in which Cato has filed a brief supporting the property owner’s petition to the Court—joined by the NFIB Small Business Legal Center, Southeastern Legal Foundation, and Beacon Center—this radical departure from historic practice has effectively shut property owners out of federal courts without any firm doctrinal justification.

Rose Mary Knick owns 90 acres in Scott Township in western Pennsylvania, a state known for its “backyard burials.” In 2012 a new ordinance required all “cemeteries” be open and accessible to the public during daylight hours. It also allowed government officials to enter private property to look for violations. In 2013, township officials entered Ms. Knick’s property without her permission and—after finding old stone markers on her property—cited her for violating the cemetery code. Fines are $300-600 per infraction per day. Ms. Knick took the township to court; the state court dismissed her claims as improperly “postured” because the township had not yet pursued civil enforcement to collect the fines. When Ms. Knick then turned to federal court, the district court dismissed her constitutional claims, citing Williamson County’s state-litigation requirement. The U.S. Court of Appeals for the Third Circuit affirmed this Kafkaesque process.

The failed attempt to gain meaningful review of a facially unconstitutional ordinance showcases the unique challenges faced by property owners asserting takings claims. If filing in state court, the best they can hope for is review from a judge who may be friendly to the government defendants responsible for the taking. And when pursuing that state-court remedy, property owners face the possibility of “removal” by defendants to federal court—where that court then dismisses the claims precisely because the property owner failed to fully pursue state litigation! Adding insult to injury, if a property owner complies with Williamson County’s requirement by seeking redress in state court, but receives an unfavorable decision, a combination of procedural barriers prevents federal courts from revisiting the claims.

The Fourteenth Amendment, which explicitly protects life, liberty, and property, cannot tolerate this state of affairs. And there is no reason to believe that this anomalous treatment of takings claims is what the Reconstruction Congress had in mind when, in the face of pervasive state abuse, it enacted the federal statute (42 U.S. § 1983) that guarantees access to federal forums to vindicate federal constitutional rights. As an unsound and impractical rule, Williamson County’s state-litigation requirement has earned a burial of its own in the graveyard of discarded precedent. 

The Supreme Court should take this case.

It’s never smart to bet on the outcome of Supreme Court cases, but if I had to wager on the big federalism case disguised as a dispute over sports books, I’d double-down on New Jersey in its fight against professional sports and the U.S. government. In Christie v. NCAA, argued this morning, I’ll give decent odds that the state will prevail on its claim that the federal law that prevents states from legalizing sports-betting is unconstitutional because it “commandeers” state officials to enforce federal policy. By my best count, the vote should be 6-3, with Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan in dissent.

Most striking was Justice Anthony Kennedy’s first question to the sports leagues’ super-lawyer Paul Clement. To paraphrase: How can it be that states don’t want a particular state law and Congress tells them they can’t repeal it? Justice Kennedy is known for being a big fan of constitutional structure as a goalkeeper of individual liberty, so if he views this as that kind of case, then here he will not be the “human jump-ball” of his critics’ description.

The newest member of Supreme Court bar discusses the argument.

Chief Justice John Roberts had similar qualms about the plays that the federal law’s defenders ran. Is it really the case, he seemed to say, that sports-betting becomes federally illegal only if made legal under state law? In other words, it’s a constitutional end-run for Congress to tell states they have to maintain bans rather than enacting a federal ban (assuming that’s within the lines of the Interstate Commerce Clause).

Perhaps the biggest tell regarding this case’s outcome was provided by Justice Stephen Breyer, who tends to wear his cards on his (robe’s) sleeve. During the opening drive by Ted Olson, lawyer for the Garden State and Clement’s former boss from the early Bush years, Breyer restated the bizarre nature of a federal law that purports to regulate states instead of individuals.

It’s possible that the vigorish argument by the deputy solicitor general Jeff Wall (my law school classmate) on behalf of the United States could give some of the justices pause, but his skilled working of the refs will likely fail to change the bottom-line result on the scoreboard.

One last-minute note: Before argument, Olson moved the admission of New Jersey Governor (and name plaintiff) Chris Christie to the Supreme Court bar. I look forward to seeing the guv around the water cooler in the lawyers lounge, where we can discuss a case that alas will no longer bear his name. Christie’s term ends Jan.16, so when the Court comes down with its decision, it will be announced as Murphy v. NCAA.

In case you missed it over the weekend, Cato scholar Ryan Bourne wrote about the Republican tax reform plan in an op-ed featured in The Hill. He responds to the argument that corporations will use money saved from the reduction in the federal corporate tax rate to increase dividends, buy back shares, or other strategies that benefit their shareholders. 

Major companies, including Cisco Systems, Pfizer and Coca-Cola, have said they will use most of the gains from proposed corporate rate cuts to increase dividends to shareholders or buy back their own shares. This has been reported and shared on Twitter as a slam dunk against the Republican tax plan.

After all, a major claim of the administration has been that corporate rate cuts would benefit workers through wage rises, rather than flowing exclusively to capital owners.

Yet, the reaction of these companies is nothing unexpected, at least in the short term. Any substantial cut to the corporate rate provides an immediate windfall to so-called “old capital.”

But even though the initial beneficiaries of changes in the corporate tax rate will indeed be corporate shareholders, Bourne points out that those savings have to go somewhere. 

If existing firms have excess capital in the short-term, distributing it to shareholders in some way makes sense. This money is unlikely to sit dormant afterwards. In all likelihood, that money will be deployed elsewhere to find new value.

The market for growth industries through venture capital and angel investment is huge, and these windfalls can be invested in the start-ups and industries of the future.

The key point though is that the lower corporate rate improves the after-tax profitability of investment across the economy, and as such generates new activity. Other things given, domestic companies will have greater incentive to invest.

Foreign companies will be more likely to expand their investments in the U.S. — or even shift their operations here. U.S. companies will repatriate profits earned by their foreign subsidiaries rather than leaving them abroad, and more capital will flow from other less productive U.S. sectors into the U.S. corporate world. 

Read the op-ed here

Terance Gamble was convicted of second-degree robbery in Alabama in 2008. That’s a felony, so he was barred from possessing a firearm under both federal and state law. Seven years later, Gamble was pulled over for a broken taillight. Smelling marijuana, the police officer searched the car and found, among other things, a 9mm handgun. Alabama prosecuted Gamble under its “felon-in-possession” statute and he was ultimately sentenced to a year in prison. Concurrent with the state’s prosecution, however, the U.S. attorney charged Gamble with the same offense under federal law. He was sentenced to 46 months in prison and will be released early in 2020, nearly three years after he would have been released from state prison.

At both the trial and appellate level, Gamble argued that the federal prosecution violated his Fifth Amendment right against being placed twice in jeopardy for the same crime. But given the “dual sovereignty” exception to that Double Jeopardy Clause, which the Supreme Court created 60 years ago—the idea that federal and state prosecutions have to be counted separately—the courts had to ignore that objection. Cato has joined the Constitutional Accountability Center in filing a brief urging the Court to review Gamble’s case and overturn this misguided exception—as we’ve done before in Walker v. Texas and Tyler v. United States, which presented the same issue.

We make three principal arguments. First, none of the Framers would have contemplated such a large exception to Double Jeopardy protection. Even before the Founding, English jurist and legal theorist William Blackstone wrote that it was considered a “universal maxim of the common law of England, that no man is to be brought into jeopardy of his life, more than once, for the same offence.” And in congressional debates before the enactment of the Fifth Amendment, Rep. Roger Sherman observed that “the courts of justice would never think of trying and punishing twice for the same offence.” Second, the practical magnitude of the dual-sovereignty exception is much greater today than it was 60 years ago. For most of our nation’s history, the federal government left most criminal matters to be handled by the states; there were relatively few offenses punishable by both authorities. But in recent decades, there has been “a stunning expansion of federal criminal jurisdiction into a field traditionally policed by state and local laws,” as Justice Clarence Thomas wrote in dissent in Evans v. United States (1992). Now that nearly every state crime has a federal analog, the dual-sovereignty exception risks entirely swallowing the Double Jeopardy rule. Finally, the Supreme Court created the dual-sovereignty exception a decade before it held that the Double Jeopardy Clause fully applies to the states. Now that we know that it does, there’s no reason why a state prosecution shouldn’t “count” when a defendant objects to having been prosecuted twice.

As Justice Hugo Black once put it, also in dissent, “If double punishment is what is feared, it hurts no less for two ‘Sovereigns’ to inflict it than for one.” Bartkus v. Illinois (1959). The Court should take this common-sense advice and put an end to the misguided dual-sovereignty exception, at least as it works in practice in modern times.