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The Fourteenth Amendment guarantees that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” Among lawyers, the buzzword we looking for in an equal protection case is “strict scrutiny,” because chances are that once the court has said that standard applies, the government will lose. Nevertheless, there are plenty of cases—including last term’s Obergefell decision on gay marriage—in which a government action has transgressed even less rigorous levels of scrutiny.

After all, the Constitution doesn’t guarantee the “equal protection of the laws” only to people who fit within certain categories. Instead, it guarantees that governments – federal or state – will not make arbitrary distinctions among the people subject to their laws. For instance, the Supreme Court has said that the government cannot refuse food stamps to people living in a household where not everyone is related (U.S. Dep’t of Agr. v. Moreno). Nor may the government require a special-use permit for the operation of a group home for mentally disabled people (City of Cleburne, TX v. Cleburne Living Center, Inc.). Nor may a state restrict access to its public schools to legal residents, thereby preventing illegal-immigrant children from receiving an education (Plyler v. Doe).

Now there’s a new lawsuit in federal court in California, Garcia v. Harris, that challenges the way that state has structured its Gun-Free School Zones Act. Until last year, state law contained an exemption for people who had obtained a California license to carry a concealed weapon (“CCW”). Due to pressure from the anti-gun lobby, however, the state legislature removed that exemption, nevertheless leaving in place the exemption for “an honorably retired peace officer authorized to carry a concealed or loaded firearm.”

However much the anti-gun lobby wants to tout this as a commonsense exemption, or a bone to throw to the law-enforcement community, it leads to ridiculous outcomes. As an initial matter, retired police who ever carried a firearm during their service are eligible to carry a firearm afterward as a matter of course. They are exempt from the Act even though they haven’t gone through anything near the rigors of the CCW application process, which requires showing “good moral character,” completing a firearms training course, and establishing “good cause.” (We’ll set aside for now the issue of why someone needs to show “good cause” to be able to exercise a constitutional right; the Supreme Court has repeatedly declined to take up cases that would explore the scope of the right to bear arms outside the home.)

But the exemption is even broader than that: It allows people whose work had nothing to do with firearms to carry them simply because they worked for the government. For example, the law exempts retired employees of the California Department of Fish and Game. It also exempts retired marshals who “ke[pt] order and preserve[d] peace at the California Exposition and State Fair.”

And perhaps most absurdly, the law exempts retirees from “any federal law enforcement agency.” So while the law does not give an exemption to a Marine Corps vet who served in Afghanistan and is an expert marksman, it would exempt an IRS retiree who spent his career at a desk computing tax penalties far away from the field of combat.

These inane rules giving preferential treatment to former government employees cannot withstand even the so-called “rational basis test” under the Equal Protection Clause. As the Court said in Cleburne, equal protection “is essentially a direction that all persons similarly situated should be treated alike.”

There is simply no reason that an emergency room doctor who received threats against his family cannot carry a firearm when he drops his children off at school but a retired tax collector can. Working for the government already carries enough benefits: Special treatment under gun-control laws should not, and under the Equal Protection Clause cannot, be one of them. 

Whatever the issue and occasion, North Korean ambitions loom large. Foreign Minister Ri Su-yong recently opined that the confrontation between the United States and his nation “will lead to very catastrophic results, not only for the two countries but for the whole entire world as well.”

Actually, most of the world doesn’t much notice the Democratic People’s Republic of Korea. Nevertheless, everyone would benefit if international relationships involving the DPRK became more normal.

Interviewed by the Associated Press, Ri defended the right of his nation to possess nukes and blamed American hostility for forcing the DPRK to create a nuclear deterrent in self-defense. The latest missile test, he said, gives North Korea “one more means for powerful nuclear attack.”

However, Ri suggested a potential deal between North Korea and the United States: “Stop the nuclear war exercises in the Korean Peninsula, then we should also cease our nuclear tests.” It’s an idea worth pursuing.

Pyongyang is unlikely to ever agree to fully disarm. It has spent too much developing nuclear weapons. Nukes also offer security against the world’s greatest military power, which has demonstrated a propensity for ousting the regimes of largely defenseless antagonists.

Nevertheless, there are more limited steps which Pyongyang might be willing to take, having already established its nuclear bona fides. Halting additional nuclear tests is one.

Ending military exercises with South Korea would be a small price for Washington to pay. In fact, America’s conventional military presence on the peninsula is a relic of the past.

The Republic of Korea long ago surpassed the North on every measure of power, save military. The latter failure is merely a matter of choice.

The ROK began to take-off economically during the 1960s. Today, South Korea has around 40 times the GDP of the DPRK. South Korea also has twice the population, a vast technological edge, and far greater international reach and support.

Although Seoul’s forces are outnumbered by those of the North, the ROK possesses newer equipment, larger reserves, superior naval and air forces, and a much bigger industrial base. If the South wanted to match North Korea man for man and tank for tank, it could do so. But it doesn’t need to, since the United States will do the job.

Washington’s security guarantee is a bad deal for Americans and creates the opportunity for a win-win agreement with North Korea.

America should bring home its conventional forces and in doing so could offer to trade away the maneuvers.

The United States could propose to end exercises in exchange for the North halting nuclear tests. The United States could follow-up with a proposal for troop withdrawals. In return, the DPRK might end missile tests, move its conventional units away from the border, and freeze nuclear activities.

America could add a little extra incentive: diplomatic relations. There is no good reason not to have regular contact between North Korea and the United States. Providing North Korea with a way to contact Washington without having to arrest another errant American for one alleged crime or another would be a nice bonus.

Of course, the gambit might turn out to be a propaganda ploy, with the Kim regime unwilling to follow through. Pyongyang might quickly violate any agreement that it reached.

Possible, but unknowable, without taking up Ri’s challenge.

And, as I point out in Forbes, “no one has a better solution. Preventive war is unthinkable. The latest sanctions have bitten more deeply than before, but remain inadequate to force change in Pyongyang. At the moment, all Washington can do is watch the DPRK continue testing nuclear weapons and missiles.”

North Korea long has been an insoluble problem for the United States. But Foreign Minister Ri’s remarks suggest the possibility of at least reducing the threat posed by North Korea.

 

The administrative state has ballooned in size and power—essentially having become its own branch of government—and Cato has now filed an amicus brief saying enough is enough.

The Securities and Exchange Commission, no longer content with just regulating securities, has accused a company called Timbervest of fraudulently taking undisclosed real-estate commissions. Timbervest was found liable by an SEC administrative law judge (“ALJ”), but even without getting into the merits of the allegations, there are several problems with this prosecution inquisition.

First, ALJs are executive-branch officers who nonetheless are insulated from removal by the president. Yet Article II of the Constitution, to ensure democratic accountability, vests the president with power over the executive branch—including over quasi-judicial officers like territorial judges—and requires that he “take care that the laws be faithfully executed.” The relevant statute here prevents the president from doing just that by having three levels of officials between the president and the SEC’s ALJs, each of whom can only be removed for cause.

Second, the SEC picked the ALJ who heard this case, even though the Supreme Court has held that there is a reasonable fear of bias when “a man chooses the judge in his own cause.” This problem has become so systemic that a former SEC ALJ felt compelled to speak publicly about how ALJs were pressured to rule in the agency’s favor.

Third, there is a real problem with this matter being in an administrative forum at all. After all, this is real-estate fraud case, of a sort that courts—real courts—have heard since the Founding. Congress can assign new statutory rights that didn’t previously exist for adjudication in an administrative forum (for example, Social Security disability claims), but it can’t take away long-held freedoms without the due process that that only the judiciary can provide. Here the SEC permanently banned Timbervest’s owners from associating with any investment advisers. The Supreme Court has recognized the right of association for the advancement of ideas as a protected First Amendment right, which is not something that can be taken away without at least a jury trial. If the SEC wants to try this case, it needs to do it in a proper Article III judicial proceeding.

Accountability, impartiality, and the right to a day in court before constitutional rights are taken away: is that too much to ask? We hope that the U.S. Court of Appeals for the D.C. Circuit, the court charged with reviewing most administrative-agency actions, agrees that it’s not.

Thanks to legal intern Devin Watkins for his help with Cato’s brief, and this blogpost.

In today’s Wall Street Journal, Scott McCartney reports on the superior air traffic control (ATC) system north of the border. American aviation is suffering from a bureaucratic government-run ATC, while Canada’s privatized system is moving ahead with new technologies that reduce delays and congestion.

Showing leadership and boldness, House Transportation Committee chairman Bill Shuster managed to get reforms along Canadian lines passed out of his committee. Unfortunately, Senate Republicans have thus far been too timid to move ahead with restructuring. The flying public may have to wait until a reform-minded president can push an overhaul through Congress.

Here’s some of McCartney’s reporting:   

Flying over the U.S.-Canadian border is like time travel for pilots. Going north to south, you leave a modern air-traffic control system run by a company and enter one run by the government struggling to catch up.

The model is Nav Canada, the world’s second-largest air-traffic control agency, after the U.S. Canada handles a huge volume of traffic between the U.S. and both Asia and Europe. Airlines praise its advanced technology that results in shorter and smoother flights with less fuel burn.

In Canada, pilots and controllers send text messages back and forth, reducing errors from misunderstood radio transmissions. Requests for altitude changes are automatically checked for conflicts before they even pop up on controllers’ screens. Computers look 20 minutes ahead for any planes potentially getting too close to each other. Flights are monitored by a system more accurate than radar, allowing them to be safely spaced closer together to add capacity and reduce delays.

And when flights enter U.S. airspace, pilots switch back to the old way of doing things.

The key, Nav Canada says, is its nongovernmental structure. Technology, critical to efficient airspace use these days, gets developed faster than if a government agency were trying to do it, officials say. Critics say slow technology development has been the FAA’s Achilles’ heel.

… Another innovation adopted around the world is electronic flight strips—critical information about each flight that gets changed on touch screens and passed from one controller to another electronically. Nav Canada has used them for more than 13 years. Many U.S. air controllers still use paper printouts placed in plastic carriers about the size of a 6-inch ruler that controllers scribble on.

For more on ATC, see here.

You Ought to Have a Look is a feature from the Center for the Study of Science posted by Patrick J. Michaels and Paul C. (“Chip”) Knappenberger.  While this section will feature all of the areas of interest that we are emphasizing, the prominence of the climate issue is driving a tremendous amount of web traffic.  Here we post a few of the best in recent days, along with our color commentary.

We’ll jump right into this week by highlighting an appearance by Manhattan Institute senior fellow Mark Mills on The Federalist’s Radio Hour. During his time on the show, Mills explains how the foreseeable future is going to play out when it comes to global energy production and why he says that even if you were concerned about climate change, “there really isn’t anything you can do about it.” 

Mills is one of the leading thinkers and analysts on energy systems, energy markets, and energy policy, bringing often overlooked and deeply-buried information to the forefront.

During his nearly hour-long radio segment, Mills discusses topics ranging from climate change, the world’s future energy mix, the role of technological advances, and energy policy as well as giving his opinions on both Bills Gates’ and Pope Francis’ take on all of the above. It is an entertaining and informative interview.

As a taste, here’s a transcript of a small segment:

In the life we live, and the world we live in, we have to do two things, one is deal with reality [current understanding of physics] and the moral consequences of that, and we can have aspirations. If the aspiration, which Bill Gates’ is, is to use fewer hydrocarbons, we need to support basic research.

We don’t subsidize stuff. The reason we don’t subsidize stuff and make energy more expensive, is because, for me, it is morally bankrupt to increase the cost of energy for most people in most of the world. Energy should be cheaper, not more expensive. We use energy to make our lives better. We use energy to make our lives safer. We use energy to make our lives more enjoyable. Everything that we care about in the world, safety, convenience, freedom, costs energy. [emphasis added]

Mark Mills’ sentiment closely matches that which Alex Epstein explained to Congress a few weeks back and that we highlighted in our last edition. 

If you can find any time to listen to a little or a lot of Mills’ full interview, you’ll probably find that what he says to make a lot of sense. Funny, though, how much of it seems to have escaped some folks.

Next up is an article in the current issue of First Things authored by Walter Wilson titled “Scientific Regress.” If you think the title is provocative, you ought to have a look at the rest of the piece beginning with the first line “The problem with ­science is that so much of it simply isn’t.” Instead, it reflects the results of a gamed system driven by pre-conceived ideas often emanating from the science/political establishment.

In describing the current sad state of science, Wilson reflects our concerns here at the Center for the Study of Science, that external factors (e.g., influence, power, money) act to negatively shape the course of science—a negative influence that is hard to shake.

Wilson writes:

[O]nce an entire field has been created—with careers, funding, appointments, and prestige all premised upon an experimental result which was utterly false due either to fraud or to plain bad luck—pointing this fact out is not likely to be very popular. Peer review switches from merely useless to actively harmful. It may be ineffective at keeping papers with analytic or methodological flaws from being published, but it can be deadly effective at suppressing criticism of a dominant research paradigm. Even if a critic is able to get his work published, pointing out that the house you’ve built together is situated over a chasm will not endear him to his colleagues or, more importantly, to his mentors and patrons.

Hear! Hear!

Wilson leaves us with this warming:

At its best, science is a human enterprise with a superhuman aim: the discovery of regularities in the order of nature, and the discerning of the consequences of those regularities. We’ve seen example after example of how the human element of this enterprise harms and damages its progress, through incompetence, fraud, selfishness, prejudice, or the simple combination of an honest oversight or slip with plain bad luck. These failings need not hobble the scientific enterprise broadly conceived, but only if scientists are hyper-aware of and endlessly vigilant about the errors of their colleagues…and of themselves. When cultural trends attempt to render science a sort of religion-less clericalism, scientists are apt to forget that they are made of the same crooked timber as the rest of humanity and will necessarily imperil the work that they do. The greatest friends of the Cult of Science are the worst enemies of science’s actual practice.

The whole piece, including the examples included therein, is an eye-opener. You ought to have a look!

And finally, we’ll leave you with a Friday Funny coming from Cartoons by Josh (a frequent commenter on the often ridiculous goings-on surrounding global warming). In this strip, Josh neatly sums up the reaction when climate gloomsayers are confronted with good news—in this case, new results showing that carbon dioxide emissions from human activities, such as the burning of fossil fuels to produce energy, are leading to a greener, more productive earth (a story that we covered in our piece “A Greening (in a Good Way) Earth”): 

Last week, I criticized the confused rhetorical framework that the Feinstein-Burr encryption backdoor proposal tries to impose on the ongoing Crypto Wars 2.0 debate.  In this post, I want to try to explain why technical experts have so overwhelmingly and vehemently condemned the substance of the proposal.

The first thing to note is how extraordinarily sweeping the bill is in scope.  Its mandate applies to:

device manufacturers, software manufacturers, electronic communication services, remote communication services, providers of wire or electronic communication services, providers of remote communication services, or any person who provides a product or method to facilitate a communication or to process or store data.  [emphasis added]

Any of these  “covered entities,” upon reciept of a court order, must be able to either provide the government with the unencrypted “plaintext” of any data encrypted by their product or service, or provide “technical assistance” sufficient to allow the government to retrieve that plaintext or otherwise accomplish the purpose of the court order.  Penalties aren’t specified, leaving judges with the implicit discretion to slap non-compliant providers and developers with contempt of court.  Moreover, “distributors of software licenses”—app stores and other software repositories—are obligated to ensure that all the software they host is capable of complying with such orders.

Some types of encrypted communications services either already comply or could comply in some reasonably obvious way with these requirements.  Others, not so much.  Because of the incredible breadth of the proposal, it’s not possible to detail in a blog post all the varied challenges such a mandate would present to diverse types of software.  But let’s begin by considering one type of software everyone reading this post uses daily: Your Web browser.  To the best of my knowledge, every modern Web-browser is non-compliant with Feiinstein-Burr, and would have to be pulled from every app store in U.S jurisdiction if the bill were to become law.  Let’s explore why.

While ordinary users probably don’t think of their Web browser as a piece of encryption software, odds are you rely on your browser to engage in encrypted communications nearly every day.  Whenever you connect to a Web-based e-mail provider like Gmail, or log in to an online banking account, or provide your credit card information to an e-commerce site, you’re opening a securely encrypted HTTPS session using a global standard protocol known as Transport Layer Security or TLS (often still referred to as SSL or Secure Sockets Layer, an earlier version of the protocol).  Even sites that don’t traffic in obviously sensitive data are increasingly adopting HTTPS as a default.  Any time you see a little padlock icon next to the address bar on your browser, you are using HTTPS encryption.

This is absolutely essential for two big reasons.  First, people routinely connect to the Web via WiFi access points they don’t control—such as a hotel, coffee shop, or airport.  Without encryption, an unscrupulous employee of one of these businesses—or a hacker, or anyone who sets up a phony “LocalCafeWiFi” hotspot to snare the unwary—could easily vacuum up people’s sensitive data.  Second, the Internet is a packet switched network that operates very differently from traditional centralized phone networks.  That means even when you’re connecting to the Internet from a trusted access point, like your home or office, your data is passed like a relay race baton across perhaps dozens of different networks you don’t control between your computer and the destination.  (You can use a program called Traceroute to see all the intermediary points your data passes through on the way from your computer to any given Web site.)  Without encryption, you’d have to trust this plethora of unknown intermediaries, foreign and domestic, not only to refrain from snarfing up your sensitive data, but to secure their systems against hackers looking to snarf up your data.  Which, needless to say, is impossible: You’d be a fool to undertake a commercial transaction or send a private message under those circumstances.  So it’s no exaggeration to say that the Internet as we now know it, with the spectacular variety of services it supports, simply wouldn’t be possible without the security provided by cryptographic protocols like TLS.

So how does TLS work?  If you’re a masochist, you can wade through the the technical guidelines published by the National Institute of Standards & Technology, but here’s a somewhat oversimplified version.  Bear with me—it’s necessary to wade into the weeds a bit here to understand exactly why a Feinstein-Burr style mandate is so untenable.

When you open a secure HTTPS session with a Web server—which may, of course, be abroad and so beyond the jurisdiction of U.S. courts—your Web browser authenticates the identity of the server, agrees on a specific set of cryptographic algorithms supported by both your browser and the server, and then engages in a “handshake” process to authenticate the server’s identity and negotiate a shared set of cryptographic keys for the session.  One of the most common handshake methods is a bit of mathematical sorcery called Diffie-Hellman key exchange. This allows your computer and the Web server to agree on a shared secret that even an eavesdropper monitoring the entire handshake process would be unable to determine, which is used to derive the ephemeral cryptographic session keys that encrypt the subsequent communications between the machines.  (Click the link above for the gory mathematical details, or see the image on the right for a liberal-arts-major-friendly allegorical version.)

A few features of this process are worth teasing out.  One is that a properly configured implementations of TLS give you a property known as “forward secrecy”: Because a unique, unpredictable, and ephemeral key is generated for each session, old communications remain securely encrypted even if a server’s long-term cryptographic keys—which remain the same over longer periods for purposes like verifying the server’s identity—are later compromised.  In economic terms, that means the “return on investment” for an attacker who manages to worm their way into a server is limited: They might be able to read the communications that occur while they remain in the system undiscovered, but they don’t then get to retroactively unlock any historical communications they’ve previously vacuumed up.  This both mitigates the the downside consequences of a successful attack and, perhaps more critically, makes it less rational for sophisticated attackers to expend extraordinary resources on compromising any given set of keys.  A recent paper by a who’s-who of security experts, incidentally, pointed to forward secrecy as a feature that is both increasingly important to make standard in an escalating threat environment and particularly difficult to square with a government backdoor mandate.

Some of the reasons for that become clear when we consider another rather obvious feature of how TLS functions: The developer of your browser has nothing to do with the process after the software is released.  When I log into an e-commerce site using Firefox, Mozilla plays no role in the transaction.  The seed numbers used to negotiate session keys for each TLS-encrypted communication are generated randomly on my computer, and the traffic between my computer and the server isn’t routed through any network or system controlled by Mozilla.  A user anywhere in the world with a copy of Firefox installed can use it to make secure connections without ever having anything further to do with Mozilla.  And TLS isn’t designed this way because of Edward Snowden or as some insidious effort to make it impossible to execute search warrants.  It’s designed that way because a lot of very bright people determined it was the best way to do secure communications between enormous numbers of arbitrary endpoints on a global packet-switched network.

Now, there are any number of ways a government agency might be able to get the contents of a targeted user’s TLS-encrypted HTTPS communications.  The easiest is simply to demand them from the server side—but that will only work in cases where the server is subject to U.S. jurisdiction (or that of an ally willing to pass on the data), and the server may not itself log everything the government wants.  Advanced intelligence agencies may be able to mount various types of “active” attacks that involve interposing themselves into the communication in realtime, but developers are constantly striving to make this more difficult, to prevent criminal hackers from attempting the same trick—and while NSA may be able to manage this sort of thing, they’re understandably reluctant to share their methods with local law enforcement agencies.  In any event, those “active” attacks are no help if you’re trying to decrypt  intercepted HTTPS traffic after the fact.

Now an obvious, if inconvenient, question arises. Suppose a law enforcement agency comes to Mozilla or Apple or Google and says: We intercepted a bunch of traffic from a suspect who uses your browser, but it turns out a lot of it is encrypted, and we want you to decipher it for us.  What happens?  Well, as ought to be clear from the description above, they simply can’t—nor can any other modern browser developer.  They’re not party to the communications, and they don’t have the cryptographic keys the browser generated for any session.  Which means that under Feinstein-Burr, no modern Web browsers can be hosted by an app store (or other distributor of software licenses), at least in their current forms.  

How, then, should developers redesign all these Web browsers to comply with the law?  The text of Feinstein-Burr doesn’t say: Nerd harder, clever nerds! Love will find a way! You’ll figure something out!  But as soon as you start thinking about classes of possible “solutions,” it becomes clear there are pretty catastrophic problems with all of them.

One approach would be to make the key material generated by the browser not-so-random: Have the session keys generated by a process that looks random, but is predictable given some piece of secret information known to the developer.   The problem with this ought to be obvious:  The developer now has to safeguard what is effectively a skeleton key to every “secure” Internet communication carried out via their software.  Because the value of such a master key would be truly staggering—effectively the sum of the value of all the interceptable information transmitted via that software—every criminal organization and intelligence agency on the planet is going to have an enormous incentive to whatever resources are needed to either steal or independently derive that information.    

Another approach might be to redesign the browser so that the developer (or some other designated entity) becomes an effective intermediary to every HTTPS session, keeping a repository of billions of keys just in case law enforcement comes knocking.  This would, needless to say, be massively inefficient and cumbersome: The unique flexibility and resilience of the Internet comes precisely from the fact that it doesn’t depend on these sorts of centralized bottlenecks, which means my Chrome browser doesn’t suddenly become useless if Google’s servers go down, or become unreachable from my location for any reason.  I don’t have to go through Mountain View, California, just to open a secure connection between my home in DC and my bank in Georgia.  And, of course, it has the same problem as the previous approach: It creates a single point of catastrophic failure.  An attacker who breaches the master key repository—or is able to successfully impersonate the repository—has hit the ultimate jackpot, and will invest whatever resources are necessary to do so.

There’s an additional wrinkle: All complex software has vulnerabilities—like the Heartbleed bug in the widely-used OpenSSL library, which that made headlines last year as it exposing millions of users to the risk of having their secure communications compromised and spurred a frantic global patching effort.  Modern software is never really finished: New vulnerabilities are routinely discovered, need to be patched, updates must be widely disseminated and installed, and then the cycle starts all over again.  That’s hard enough as it is—an exercise in dancing madly on the lip of a volcano, as John Oliver memorably put it.  Now there’s the added problem of ensuring that a new update to fix an unintentional vulnerability doesn’t simultaneously either break the intentional vulnerability introduced to provide law enforcement access, or interact unpredictably with any of the myriad approaches to guaranteeing government access in a way that creates a new vulnerability.  People who don’t actually have to do this for a living are awfully confident this must be possible if the nerds only nerd hard enough.  The actual nerds mostly seem to agree that it isn’t.

So far so awful. But now consider what this implies for the broader ecosystem—which doesn’t just consist of huge corporations like Apple or Google, but individual coders, small startups, and the open source communities that collaboratively produce software like Firefox.  In principle, a lone computer science student, or a small team contributing to an open source project, can today write their own Web browser (or any other app implementing TLS) using open code libraries like OpenSSL, and release it online.   We owe much of the spectacular innovation we’ve seen over the past few decades to the fact that software can be produced this way: You don’t even need a revenue model or a business plan or a corporate charter, just the knowledge to write code and the motivation to put it to use.  Maybe the software makes you rich and launches the next Silicon Valley behemoth, or maybe the authors release it and forget about it, or move on and pass the torch to another generation of open source contributors.  

If Feinstein-Burr becomes law, say goodbye to all that—at least when it comes to software that supports encryption of files or communications. Those existing open-code libraries don’t support government backdoors, so you’d better not use those, little coder.  You’ll have to either roll your own crypto (which every expert will tell you is a virtual guarantee of insecurity) and be prepared to secure the master key material for the effective life of the software, or run a server farm to act as a key repository and secure that.  As a practical matter, the (lawful) production of secure software in the United States becomes the exclusive domain of corporate entities large and rich enough to support (and at least attempt to secure) some kind of key-escrow infrastructure. 

The probable upshot of this proposal, then, isn’t just that we all become less secure as big companies choose from a menu of terrible options that will enable them to comply with decryption orders—though it’s important to keep pointing that out, since legislators seem somehow convinced the experts are all lying about this.  It’s that smaller developers and open source projects look at the legal compliance burdens associated with incorporating encryption in their software and decide it isn’t worth the trouble.  Implementing crypto correctly is already hard enough; add the burden of designing and maintaining a Feinstein-Burr compliance strategy and a lot of smaller developers and open source projects are going to conclude it’s not worth the trouble. 

In an environment of dire and growing cybersecurity threats, in other words, legislators seem determined to dissuade software developers from adopting better security practices.  That would be a catastrophically bad idea, and urging developers to “nerd harder” doesn’t make it any less irresponsible.

It is said, perhaps not reliably, that the following headlines appeared in a Paris newspaper, perhaps Le Moniteur Universel, in 1815 as Napoleon escaped from exile on Elba and advanced through France:

March 9

THE ANTHROPOPHAGUS HAS QUITTED HIS DEN

March 10

THE CORSICAN OGRE HAS LANDED AT CAPE JUAN

March 11

THE TIGER HAS ARRIVED AT CAP

March 12

THE MONSTER SLEPT AT GRENOBLE

March 13

THE TYRANT HAS PASSED THOUGH LYONS

March 14

THE USURPER IS DIRECTING HIS STEPS TOWARDS DIJON

March 18

BONAPARTE IS ONLY SIXTY LEAGUES FROM THE CAPITAL

He has been fortunate enough to escape his pursuers

March 19

BONAPARTE IS ADVANCING WITH RAPID STEPS, BUT HE WILL NEVER ENTER PARIS

March 20

NAPOLEON WILL, TOMORROW, BE UNDER OUR RAMPARTS

March 21

THE EMPEROR IS AT FONTAINEBLEAU

March 22

HIS IMPERIAL AND ROYAL MAJESTY arrived yesterday evening at the Tuileries, amid the joyful acclamation of his devoted and faithful subjects

And I think about that story whenever I see articles like this one in this morning’s Washington Post:

GOP elites are now resigned to Donald Trump as their nominee

Philip Rucker writes:

An aura of inevitability is now forming around the controversial mogul. Trump smothered his opponents in six straight primaries in the Northeast and vacuumed up more delegates than even the most generous predictions foresaw. He is gaining high-profile ­endorsements by the day — a legendary Indiana basketball coach Wednesday, two House committee chairmen Thursday.

Which is not exactly the rush of support that any normal frontrunner would be getting by this point. But the article is full of Republican leaders saying things like “People are realizing that he’s the likely nominee,” and “More and more people hope he wins that nomination on the first ballot because they do not want to see a convention that explodes into total chaos.” Not exactly profiles in courage, these leaders. As Dan McLaughlin tweeted last night:

20 years from now - maybe 2 years from now - everyone in the GOP will want to say they were against Trump now.

But the stories are everywhere today: Republicans coming to accept their conquest by Trump. For a brief explanation of why they should not, I recommend Jay Cost’s tweets as captured on Storify and my own contribution to a National Review symposium in January:

From a libertarian point of view — and I think serious conservatives and liberals would share this view—Trump’s greatest offenses against American tradition and our founding principles are his nativism and his promise of one-man rule.

Not since George Wallace has there been a presidential candidate who made racial and religious scapegoating so central to his campaign. Trump launched his campaign talking about Mexican rapists and has gone on to rant about mass deportation, bans on Muslim immigration, shutting down mosques, and building a wall around America. America is an exceptional nation in large part because we’ve aspired to rise above such prejudices and guarantee life, liberty, and the pursuit of happiness to everyone. Equally troubling is his idea of the presidency—his promise that he’s the guy, the man on a white horse, who can ride into Washington, fire the stupid people, hire the best people, and fix everything. He doesn’t talk about policy or working with Congress. He’s effectively vowing to be an American Mussolini, concentrating power in the Trump White House and governing by fiat. It’s a vision to make the last 16 years of executive abuse of power seem modest.

This is no brief for any other current presidential candidate. The major-party candidates seem as tragically un-libertarian to me as any group of candidates ever. But Trump seems dangerously uninformed, unmoored, erratic, threatening, and megalomaniacal in a way that transcends mere ideology.

Republicans like to praise the “greatest generation.” Nobody’s ever going to call the Republicans who rolled over for Donald Trump the greatest generation. Nor do they seem to be emulating their hero, Winston Churchill, who famously said:

Let us therefore brace ourselves to our duties, and so bear ourselves, that if the British Empire and its Commonwealth last for a thousand years, men will still say, This was their finest hour.

As Dan McLaughlin suggests, Republicans should be asking themselves, What will I say when my son asks, What did you do when Donald Trump knocked on the Republican party’s door, Daddy?

Noting that the influence of atmospheric CO2 on crop growth is “still a matter of debate,” and that “to date, no comprehensive approach exists that would represent all related aspects and interactions [of elevated CO2 and climate change on crop yields] within a single modeling environment,” Degener (2015) set out to accomplish just that by estimating the influence of elevated CO2 on the biomass yields of ten different crops in the area of Niedersachsen, Germany over the course of the 21st century.

To accomplish this lofty objective the German researcher combined soil and projected future climate data (temperature and precipitation) into the BIOSTAR crop model and examined the annual difference in yield outputs for each of the ten crops (winter wheat, barley, rye, triticale, three maize varieties, sunflower, sorghum and spring wheat) under a constant CO2 regime of 390 ppm and a second scenario in which atmospheric CO2 increased annually through the year 2100 according to the IPCC’s SRES A1B scenario. Degener then calculated the difference between the two model runs so as to estimate the quantitative influence of elevated CO2 on projected future crop yields. And what did that difference reveal?

As shown in the figure below, Degener reports that “rising [CO2] concentrations will play a central role in keeping future yields of all crops above or around today’s level.” Such a central, overall finding is significant considering Degener notes that future temperatures and precipitation within the model both changed in a way that was “detrimental to the growth of crops” (higher temperatures and less precipitation). Yet despite an increasingly hostile growing environment, according to the German researcher, not only was the “negative climatic effect balanced out, it [was] reversed by a rise in CO2” (emphasis added), leading to yield increases on the order of 25 to 60 percent.

Figure 1. Biomass yield difference (percent change) between model runs of constant and changing atmospheric CO2 concentration. A value of +20% indicates biomass yields are 20% higher when modeled using increasing CO2 values with time (according to the SRES A1B scenario of the IPCC) instead of a fixed 390 ppm for the entire run.

The results of this model-based study fall in line with the previous work of Idso (2013), who calculated similar CO2-induced benefits on global crop production by mid-century based on real-world experimental data, both of which studies reveal that policy prescriptions designed to limit the upward trajectory of atmospheric CO2 concentrations can have very real, and potentially serious, repercussions for global food security.

 

References

Degener, J.F. 2015. Atmospheric CO2 fertilization effects on biomass yields of 10 crops in northern Germany. Frontiers in Environmental Science 3: 48, doi: 10.3389/fenvs.2015.00048.

Idso, C.D. 2013. The Positive Externalities of Carbon Dioxide: Estimating the Monetary Benefits of Rising Atmospheric CO2 Concentrations on Global Food Production. Center for the Study of Carbon Dioxide and Global Change, Tempe, AZ.

Seeking to calm fears of a rising China’s new assertiveness in the most recent issue of Foreign Affairs, professors Stephen G. Brooks and William G. Wohlforth argue that the United States has less to worry about than most believe. China is extremely unlikely to become a superpower peer anytime in the next few decades. The real test for the United States, they say, will be adapting to a “world of lasting U.S. military preeminence and declining U.S. economic dominance.”

As proponents of the “deep engagement” camp in the roiling debate over American grand strategy, Brooks and Wohlforth have long opposed arguments for a more restrained foreign policy. It is surprising, then, that a long section of their essay is devoted to the importance of exercising restraint, as is their conclusion that the “chief threat to the world’s preeminent power arguably lies within.”

Brooks and Wohlforth discuss four different challenges to exercising the appropriate restraint in the years ahead:

  1. The temptation to bully or exploit allies.
  2. Overreacting when other states such as China exercise their growing clout on the international stage.
  3. Intervening in places where its core national interests are not at stake.
  4. Adopting overly aggressive military postures in the face of challenges to its interests around the world.

Each of these challenges is real and important. But rather than problems that the United States will begin facing over the next several decades, these issues are exactly the ones that have plagued the United States since the end of the Cold War. All one needs to do is read the daily news for plentiful examples of how the United States already struggles to cope with what Christopher Preble has called the “power problem.”

In truth, the fact that Brooks and Wohlforth feel obligated to discuss the need for restraint at such length reinforces two critical arguments that we at Cato have been making for a long time.

First, the United States’ strategic situation is so secure thanks to geography and its nuclear triad that even China’s incredible economic rise and increasing military assertiveness can do little to threaten U.S. national security. In fact, contrary to the news headlines, the United States faces a less dangerous world than at any time in memory. Other “threats” to American security like Russia, Iran, or North Korea, are primarily threats to those nations’ neighbors, not the United States. Engaging those countries simply risks escalating conflicts that add nothing to American national security. Terrorism, while a real threat, is a threat to American lives and property, not to national security.

Second, U.S. preeminence creates temptations to act in ways that are both unnecessary for national security and counterproductive. The ability to project massive amounts of military power led the United States, in the wake of 9/11, to spend trillions of dollars and thousands of lives chasing imaginary threats in the Middle East. Intervention in Afghanistan, Iraq, and Libya have destroyed societies and unleashed chaos. Despite these warnings, presidential candidates continue to call for indiscriminate exercise of American military power abroad in a vain effort to bring the world under control.

Brooks and Wohlforth’s warning about the challenges of restraint is timely. China’s rise, Russia’s saber rattling, the scourge of Islamist terrorism, and unrest and upheaval in the Middle East are just a few of the temptations calling out to American interventionists today. New temptations to shape and control the world will follow as surely as the sun rises. Now would not be too soon to organize plans for restrained responses to current and future concerns.

Unfortunately, the prospects for restraint look very poor. In the absence of any serious external checks on its behavior, the United States must rely on internal sources of restraint. Sadly, the United States lacks the internal checks and balances that would help prevent foreign policy adventurism. Waging unending war is unthinkably expensive, but the American economy is large enough to sustain foolish foreign policies. The American public is tired of war after more than a decade of making a mess in the Middle East, but neither polls nor elections provide a sufficient bulwark against the elite consensus. Even though polls show that the public has little appetite for international activism, both the Republican and Democratic foreign policy establishments remain deeply committed to interventionist strategies of various flavors. And even when Congress does raise objections to presidential maneuvers it matters little. Congress long ago ceded most of its meaningful authority on foreign policy to the executive branch. Moreover, the president’s advantages with respect to information and the news media makes winning arguments extremely difficult for the opposition.

Thus the challenges Brooks and Wohlforth identify will eventually be a list of the failures of American foreign policy over the next several decades. As has always been the case, these failures will hurt other nations and peoples more than they will hurt the United States, which will mostly spend money that its citizens could have used for more productive purposes. It is sobering nonetheless to think how much better everyone would be if the United States could manage to exercise greater restraint.

Deferred prosecution agreements and their close relatives non-prosecution agreements (DPAs/NPAs) have become a major tool of white-collar prosecution in recent years. Typically, a business defendant in exchange for escape from the costs and perils of trial agrees to some combination of cash payment, non-monetary steps such as a shakeup of its board or manager training, and submission to future oversight by DoJ or other monitors. Not unlike plea bargains in more conventional criminal prosecution, these deals dispense with the high cost of a trial; they also dispense with the need for the government to prove its allegations in the first place. DPAs may also pledge a defendant to future behavior that a court would never have ordered, or conversely fail to include remedies that a court would probably have ordered. And they may be drawn up with the aim of shielding from harm — or, in some other cases, undermining — the interests of third parties, such as customers, employees, or business associates of the targeted defendant, or foreign governments.

So there was a flurry of interest last year when federal district judge Richard Leon in Washington, D.C., declined to approve a waiver, necessary under the Speedy Trial Act, for a DPA settling charges that Fokker Services, a Dutch aerospace company, sold U.S.-origin aircraft systems to foreign governments on the U.S. sanctions list, including Iran, Sudan, and Burma. While acknowledging that under principles of prosecutorial discretion the Department of Justice did not have to charge Fokker at all, Judge Leon said given that it had, the judiciary could appropriately scrutinize whether the penalties were too low.

Now a three-judge panel of the D.C. Circuit has unanimously overruled Judge Leon. It pointed out that under well settled law, charging decisions are entrusted to the DoJ or other executive branch prosecutors, not the judiciary, and that judges may not intervene to insist that additional or more stringent charges be filed – and that is what the pattern in this case amounted to, in the appeals panel’s view.

So far so good, you might think. But the language of the appellate ruling in places might be read to suggest that courts should simply defer to the Justice Department’s judgment and green-light the DPAs it may negotiate, period. And that would be disturbing, since over-lenience is only one of the possible problems with these devices. Noting the rule-of-law concerns that scholars have voiced about DPAs, Michael Greve writes that the new Fokker Services decision “in sharp contrast, oozes with ‘trust your friendly prosecutor’ language” and speaks of dispensing with “seeking a conviction that the prosecution may believe would be difficult to obtain or would have undesirable collateral consequences.” Greve adds: “Inquiring minds might want to know whether the conviction would be ‘difficult to obtain’ for practical reasons — or because the charges are preposterous and brought for reasons bordering on extortion. …No judicial scrutiny means more than boundless prosecutorial discretion. It means mobilizing the courts to create a due process façade for highly suspect bargains.” Let’s hope the ruling isn’t read that way.

Today the American Federation of Teachers – the country’s second largest teachers union – is joining “global allies” to protest outside of the shareholders’ meeting of Pearson PLC, a London-based company perhaps best known as a government contractor for standardized tests. What’s irking the AFT and friends? Pearson is heavily involved in government-imposed testing, as well as trying to help make private schooling more affordable in some of the world’s poorest places.

From the AFT’s press release:

The American Federation of Teachers, along with teachers unions and nongovernmental organizations throughout the world, will speak out during Pearson’s annual general meeting Friday, April 29, in London to call for a review of its business model that pushes high-stakes testing in the United States and privatized schools in the developing world.

How the press release sounds:

We oppose testing, and we oppose people having the ability to leave the government schools that impose it. Because, you know, we need to force taxpayers to fund these schools that impose these bad things. Because they also force taxpayers to pay for us.

I’m not a big fan of standardized testing, especially that is used to superficially deem students or schools “good” or “bad,” but I can certainly see the utility in testing. It can supply useful information. I can also understand why testing fans want assessments to have real ramifications for schools, even if I think they over-value test results. Learning should matter, right?

The key to balancing everyone’s myriad desires and judgements – especially when there is no conclusive evidence what works best for all, unique children – is to give individuals real choice and educators real autonomy to set up schools with different policies and focuses. Parents and educators who value standardized testing could work with each other. Parents and teachers who feel differently could do likewise. It’s called “freedom,” which is good in and of itself, but is also crucial for innovation, specialization, and real-but-flexible accountability.

Of course, freedom also makes it much harder to maintain a monopoly over employment terms and labor organization.

To see what this means in real life, I strongly suggest that the AFT and its allies – not to mention Pearson people and defenders of private schools everywhere – read James Tooley’s The Beautiful Tree, which documents the existence of abundant private institutions serving many of the world’s poorest people, and doing so better than the public schools.

Why better than the public schools? Maybe because public schooling is so easily subjected to things like blanket standardized testing. Or labor monopolies. Or both.

The NATO-Russia Council met in Brussels for the first time in nearly two years. “We are not afraid of dialogue,” announced alliance Secretary-General Jens Stoltenberg. Alas, he explained: “it was reconfirmed that we disagree on the facts, on the narrative and the responsibilities in and around Ukraine.”

Of course, this should surprise no one. After all, Russia is in a mini-Cold War with the U.S. and Europe over Ukraine.

Only reassessing everyone’s respective national interests will change the existing relationship. Should the West maintain permanent confrontation with Russia over Ukraine?

None of the allies has made a security commitment to Kiev. Indeed, few if any of the 28 NATO members are willing to go to war with Russia over its neighbor.

Should the U.S. and Europe treat Kiev as if it was a member of NATO? There’s a reason the alliance has a membership process. One criterion is not to induct countries with a casus belli or two trailing behind.

More fundamentally, inclusion only makes sense if it makes the existing allies more secure. No one seemed to consider this issue during the madcap alliance expansion after the Cold War because the organization was treated as an international gentleman’s club.

However, the Ukraine conflict reminded everyone that war could happen. Which is why NATO members would be mad to include Kiev.

Moscow has behaved badly and Ukrainians are suffering as a result, but such humanitarian considerations, are a poor basis for issuing military commitments. Kiev simply doesn’t matter much geopolitically to Europe or America.

Indeed, despite all of the tub-thumping about the supposed new Russian threat, Vladimir Putin is a poor excuse for Joseph Stalin or Adolf Hitler. His aggregate “conquests” so far are pitiful. There’s no evidence that he covets any other territory, certainly none without an ethnic-Russian majority.

And despite Moscow’s modest military revival, Europe alone vastly outranges Russia in economic strength and military spending. America’s global reach is unparalleled.

There’s still reason for the West to oppose Russia’s actions in Ukraine, though the allies’ hands are hardly clean. However, provoking a wounded bear is stupid in international relations as well as in the natural world.

Sanctions remain in place to no obvious effect. They punish but have not transformed Moscow’s behavior. And they discourage Russian cooperation on other important issues.

The U.S. and Europe must decide whether they are willing to wage a permanent mini-Cold War over Ukraine. Russia took back Crimea lawlessly, but no more so than the allies broke up Serbia and created an independent Kosovo.

A majority of Crimeans probably supported the move, though only a free and fair referendum, unlike that conducted by Moscow, would tell for sure. In any case, Crimea is no more likely to go back to Ukraine than Kosovo is likely to go back to Serbia.

The Donbas is a mix of civil war and aggression, which isn’t unusual. While everyone seems to agree on the political settlement represented by the Minsk agreement, both Kiev and Moscow appear lax in implementation. Even the end of shooting won’t mean harmony is restored.

Which suggests the allies should seek to forge a deal with Moscow that gets both sides out of the present geopolitical cul-de-sac. As I point out in Forbes: “agree to disagree over Crimea, neutralize Ukraine by withdrawing Russian support from insurgents and NATO’s promise of eventual membership for Kiev, liberalize trade opportunities for Ukraine in both directions, and swap Moscow’s acquiescence in the results of Ukraine’s political system for grants of significant autonomy to areas filled with ethnic Russians.”

Kiev could refuse to go along, but then it would be on its own. Only a deal seems likely to deliver peace for Ukraine, security for Russia, stability for Europe, and satisfaction for America (which really has no meaningful geopolitical stake, only moral sentiment).

The EU and U.S. should negotiate a deal normalizing relations. Everyone would benefit from ending the current impasse. Especially the Ukrainian people.

The left must be in disarray over at George Mason University. It took the faculty senate almost a month to adopt a resolution expressing “deep concern” over the university’s decision to rename the law school after the late Justice Antonin Scalia, following grants of $10 million from the Charles Koch Foundation and $20 million from an anonymous donor. That’s slow by today’s academic standards, especially in this year of protests across the country.

What’s worse, the National Law Journal reports today that fewer than 140 faculty members have thus far signed a letter opposing the renaming. Their concerns, however, will surprise no one. It seems that Justice Scalia was less than solicitous of identity politics. Moreover, the resolution claims, he “was a significant contributor to the polarized climate in this country that runs counter to the values of a university that celebrates civil discourse.” And perhaps of greatest concern, this decision reinforces “the external branding of the university as a conservative institution rather than an unaligned body that is a comfortable home for individuals with a variety of viewpoints.” Oh the horror, at intercollegiate colloquia, to have GMU on one’s name tag.

Notice the apposition in that last concern: “a conservative institution rather than an unaligned body that is a comfortable home for individuals with a variety of viewpoints.” We’re invited to believe, first, that the average American university is an “unaligned body”—like Princeton, for example, where in the 2012 presidential election, 157 faculty and staff donated to Barack Obama’s campaign, 2 to Mitt Romney’s—a visiting engineering professor and a janitor. For a broad picture of the ideological complexion of American law schools, see the splendid article by Northwestern University Law School’s Jim Lindgren in the current Harvard Journal of Law & Public Policy. GMU’s law school is anomalous only in having a fairly broad ideological distribution of faculty members, where any student can find any number of sympathetic professors.

But note also and especially the implication that liberals could not be “comfortable” if GMU were, in fact, a conservative institution. Funny how that concern doesn’t seem to go both ways, as many a conservative student at your average liberal institution can attest—the evidence for which has been richly documented by the scrappy Foundation for Individual Rights in Education (FIRE). But that concern is deeply revealing as well, and goes far toward explaining why our college and university faculties are so overwhelmingly of the left: They, indeed, are uncomfortable with opposing views. Witness this very incident. Does anyone believe that such conservatives as there are at GMU would come out of the woodwork in protest if a liberal justice’s name were given to the law school?

Res ipsa loquitur.

In both his March New York Times interview and his more recent foreign policy speech at the Mayflower Hotel, presidential candidate Donald J. Trump has created tremors within America’s stodgy, utterly complacent foreign policy elite.  He has alarmed those self-anointed Mandarins regarding several issues, including his comments that under certain circumstances he would not object to Japan and South Korea acquiring independent nuclear deterrents.

But his comments about NATO have probably caused the most consternation.  Trump’s own preference appears to be for greater burden-sharing within the alliance—a unicorn that American politicians, policymakers, and pundits have been chasing for more than six decades.  But there is a much sharper edge to his demands than there are to the calls from most proponents of burden-sharing.  “Our allies are not paying their fair share,” Trump thundered in his speech at the Mayflower Hotel.  “The countries we are defending must pay for the cost of this defense, and if not, the U.S. must be prepared to let these countries defend themselves.” [Emphasis added]

One must go back to the mid-1950s to find a warning that stark.  Probably the most significant and best known example was the threat that Secretary of State John Foster Dulles issued to conduct an “agonizing reappraisal” of America’s defense commitment to Europe if the NATO allies could not develop a united policy regarding West Germany and make a more serious effort at collective defense.  Yet even that effort at brass knuckles diplomacy ultimately failed.  European leaders never took the warning seriously, believing that their American counterparts regarded Europe as far too important to America’s own security and prosperity to ever consider abandoning the continent to possible Soviet domination.  They called the Eisenhower administration’s bluff and quickly confirmed that it was a bluff.  There was no reappraisal of Washington’s defense commitment to Europe, agonizing or otherwise.

A Trump administration would likely find intense institutional resistance even to more limited cutbacks.  Senate Majority Leader Mike Mansfield (D-MT) discovered the power of the bipartisan pro-NATO lobby in the 1970s when he merely sought to reduce the number of U.S. troops stationed in Europe. The push to expand the alliance and desperate search to find alternative missions for the organization, even though the Soviet Union (the principal reason for NATO’s creation) dissolved at the end of 1991, is ample testimony to the extent of those entrenched, vested interests on both sides of the Atlantic.

But the vastly changed economic and security environment - a fiscally stressed America, a populous and relatively prosperous democratic Europe, and a weak, declining Russia, gives Trump’s threat of a U.S. withdrawal unprecedented credibility.  The nations of the European Union now have both a larger population and a larger collective economy than does the United States.  They also have a population three times larger than Russia’s and an economy nearly ten times larger.  They can afford to build whatever military forces they deem necessary to defend their region.

With regard to the other troubling security problem facing the alliance, Islamic extremism, several of the European powers are the old colonial rulers in the Middle East.  Trump and other Americans could be excused if they concluded that perhaps the Europeans should step up to take care of a security headache in their neighborhood instead of always expecting their NATO ally to ride in from several thousand miles away to resolve the problem.  We have tried that strategy for decades without much success. 

Mr.  Trump, your complaints about NATO just identify the symptoms of the underlying problem.  The real problem is Europe’s unnatural and unhealthy continued security dependence on the United States.  We don’t need greater NATO burden sharing.  We need to shed our obsolete NATO burden entirely.   Being prepared “to let these countries defend themselves” should not be a policy of last resort.  It should be our primary objective.

The current partisan divide on immigration is wide and growing according to a new Pew study.  This widening divide does not come from Republicans having a more anti-immigration position than in the past but from Democrats having a much more pro-immigration position than they used to. 

In 2006, 49 percent of Democrats agreed with the statement “immigrants today strengthen the country because of their hard work and talents.”  In 2016, 78 percent of Democrats agreed with that statement.  Over the same time period Republicans went from 34 percent in agreement to 35 percent.  Prior to 2006 the opinions of the two parties were nearly identical.

This partisan divide was not present during the vote over the Immigration and Nationality Act of 1965, the law that repealed the last vestiges of the eugenics-inspired 1920 immigration laws that ended America’s traditionally free immigration policy.

In the House of Representatives, Republican support for the 1965 Act actually exceeded Democratic support.  78 percent of Republicans voted for the 1965 Act (Chart 1) compared to 71 percent of Democrats (Chart 2).  18 percent of Republicans voted against the bill while 24 percent of Democrats did while both sides had a similar percentage of abstentions.  Both parties supported the 1965 Act by wide margins but House Republicans were more likely to vote for it. 

Chart 1

House Republican Votes

 

Source: govtrack.us

Chart 2

House Democratic Votes

 

Source: govtrack.us

In the Senate, 75 percent of Republicans (Chart 3) and 78 percent of Democrats voted for the Act (Chart 4).  However, only 9 percent of Republicans voted against it while 21 percent of Democrats did (many more Republicans abstained).       

Chart 3

Senate Republican Votes

Source: govtrack.us

Chart 4

Senate Democratic Votes

 

Source: govtrack.us

The Democrats had huge majorities in both Houses of Congress in 1965 but Republican support for the Immigration Act of 1965 exceeded that of the Democrats – at least as a percentage of Congressmen who supported the bill.  Democratic support in the Senate barely exceeded that of Republicans.    

A higher percentage of Republicans voted for the Civil Rights Act of 1964 – a fact conservatives have used for decades to ward off charges of racism.  Republicans and conservatives can use a similar line of argument to support a pivot in favor of immigration reform by using the 1965 Act as a reference.     

Tomorrow, Congress is scheduled to vote on the Scholarships for Opportunity and Results (SOAR) Act, which would reauthorize the D.C. Opportunity Scholarship Program (OSP). The OSP was scheduled to expire later this year. Back in December, I expressed skepticism about a standalone reauthorization bill because the Obama administration has repeatedly worked to undermine or eliminate the school choice program, even though the OSP has the support of local Democratic politicians such as D.C. Mayor Muriel Bowser and a majority of the D.C. City Council. Fortunately for the low-income children attending the schools of their choice through the OSP, the president has signaled that he does not intend to veto the legislation:

“While the administration continues to strongly oppose the private school vouchers program within this legislation, known as the D.C. Opportunity Scholarship Program, the administration will continue to use available SOAR Act funds to support students returning to the program until they complete school, so that their education is not disrupted,” the Office of Management and Budget said.

The White House stopped short of issuing a veto threat. But the administration made clear its distaste for the voucher program, which President Obama has tried to kill several times. The measure, a priority of former Republican Speaker John Boehner of Ohio, provides money for some students in D.C. to attend private school.

Predictably, the White House claimed that studies of the D.C. OSP show it has “not yielded statistically significant improvements in student achievement by scholarship recipients compared to other students not receiving vouchers,” ignoring that the OSP achieves those similar results at a fraction of the cost (less than $9,000 per voucher on average versus about $30,000 per district school student), and that the same random-assignment study found that OSP students were 21 percentage points more likely to graduate from high school than the control group. 

Low-income students shouldn’t be condemned to low-quality schools just because their parents cannot afford a home in a wealthy neighborhood. As the Washington Post wrote in a recent editorial, “The scholarships provide a lifeline to low-income and underserved families, giving them the school choice that more affluent families take as a given.” The D.C. OSP was an important step toward breaking the link between home prices and school quality, so it’s encouraging to see that D.C. is not likely to take a step backward. Ideally, though, Congress would take the next step from school choice to educational choice by enacting a universal education savings account program.

We can learn a lot of economic lessons from Europe.

Today, we’re going to focus on another lesson, which is that higher taxes lead to more red ink. And let’s hope Hillary Clinton is paying attention.

I’ve already made the argument, using European fiscal data to show that big increases in the tax burden over the past several decades have resulted in much higher levels of government debt.

But let’s now augment that argument by considering what’s happened in recent years.

There’s been a big fiscal crisis in Europe, which has forced governments to engage in austerity.

But the type of austerity matters. A lot.

Here’s some of what I wrote back in 2014.

…austerity is a catch-all phrase that includes bad policy (higher taxes) and good policy (spending restraint). But with a few notable exceptions, European nations have been choosing the wrong kind of austerity (even though Paul Krugman doesn’t seem to know the difference).

And when I claim politicians in Europe have chosen the wrong kind of austerity, that’s not hyperbole.

As of 2012, there were €9 of tax hikes for every €1 of supposed spending cuts according to one estimate. That’s even worse than some of the terrible budget deals we’ve seen in Washington.

At this point, a clever statist will accuse me of sour grapes and state that I’m simply unhappy that politicians opted for policies I don’t like.

I’ll admit to being unhappy, but my real complaint is that higher tax burdens don’t work.

And you don’t have to believe me. We have some new evidence from an international bureaucracy based in Europe.

In a working paper for the European Central Bank, Maria Grazia Attinasi and Luca Metelli crunch the numbers to determine if and when “austerity” works in Europe.

…many Euro area countries have adopted fiscal consolidation measures in an attempt to reduce fiscal imbalances…in most cases, fiscal consolidation did not result, at least in the short run, in a reduction in the debt-to-GDP ratio…calls for a more temperate approach to fiscal consolidation have increased on the ground that the drag of fiscal restraint on economic growth could lead to an increase rather than a decrease in the debt-to-GDP ratio, as such fiscal consolidation may turn out to be self-defeating. …The aim of this paper is to investigate the effects of fiscal consolidation on the general government debt-to-GDP ratio in order to assess whether and under which conditions self defeating effects are likely to materialise and whether they tend to be short-lived or more persistent over time.

Now let’s look at the results of their research.

It turns out that austerity does work, but only if it’s the right kind. The authors find that spending cuts are successful and higher tax burdens backfire.

The main finding of our analysis is that…In the case of revenue-based consolidations the increase in the debt-to-GDP ratio tends to be larger and to last longer than in the case of spending-based consolidations. The composition also matters for the long term effects of fiscal consolidations. Spending-based consolidations tend to generate a durable reduction of the debt-to-GDP ratio compared to the pre-shock level, whereas revenue-based consolidations do not produce any lasting improvement in the sustainability prospects as the debt-to-GDP ratio tends to revert to the pre-shock level. …strategy is more likely to succeed when the consolidation strategy relies on a durable reduction of spending, whereas revenue-based consolidations do not appear to bring about a durable improvement in debt sustainability.

Unfortunately, European politicians generally have chosen the wrong approach.

This is an important policy lesson also in view of the fact that revenue-based consolidations tend to be the preferred form of austerity, at least in the short run, given also the political costs that a durable reduction in government spending entail.

Here are a few important observations from the study’s conclusion.

…the findings of our analysis are in line with those of the literature on successful consolidation, namely that the composition of fiscal consolidation matters and that a durable reduction in the debt-to-GDP ratio is more likely to be achieved if consolidation is implemented on the expenditure side, rather than on the revenue side. In particular, when fiscal consolidation is implemented via an increase in taxation, the debt-to-GDP ratio reverts back to its pre-shock level only in the long run, thus failing to generate an improvement in the debt ratio, and producing what we call a self-defeating fiscal consolidation. …fiscally stressed countries benefit from an immediate reduction in the level of debt when reducing spending.

In other words, restraining the growth of spending is the best way to reduce red ink. Heck, it’s the only way.

When debating my leftists friends, I frequently share this table showing nations that have obtained very good results with multi-year periods of spending restraint.

My examples are from all over the world and cover all sorts of economic conditions. And the results repetitively show that when you deal with the underlying problem of too much government, you automatically improve the symptom of red ink.

I then ask my statist pals to show me a similar table of data for countries that have achieved good results with higher taxes.

I’m still waiting for an answer.

Which is why the only good austerity is spending restraint.

P.S. Paul Krugman is remarkably sloppy and inaccurate when writing about austerity. Check out his errors when commenting on the United Kingdom, Germany, and Estonia.

Despite recently expressing doubts about America’s relationship with Saudi Arabia, President Barack Obama again flew to Riyadh and sought to “reassure” the Saudi royals about U.S. support.

The Kingdom of Saudi Arabia should raise the question: what are allies for? The president should have started moving Washington and Riyadh toward a more normal relationship.

Most important, the U.S. should drop any security guarantee, whether explicit or implicit. If the KSA is worth defending, its own people should do so. At the same time, the U.S. should take a more even-handed approach in the Iranian-Saudi cold war, looking for opportunities to draw Tehran away from Islamic extremism.

America’s relationship with the KSA was always based on oil. But supplies are expanding; even the U.S. is going from net consumer to exporter. Anyway, a successor regime would sell to the highest bidder.

Saudi Arabia is supposed to promote regional stability, but intervened in Bahrain to block reforms by the Sunni monarchy for the Shia majority, funded radical insurgents in an attempt to oust Syrian President Bashar al-Assad, and is seeking to destabilize Lebanon’s fragile confessional political system.

Worse, Riyadh has turned Yemen’s long-running domestic conflict into a destructive sectarian battle with Iran. Since the 1979 overthrow of the Shah Washington has seen the KSA as a significant barrier to expansion by Tehran. However, the nuclear agreement creates important new opportunities.

Change will not come easily or quickly, given determined resistance in Tehran, but Iran is far more likely to evolve in a more liberal and democratic direction than Saudi Arabia. Security concerns will remain, but monarchy has more to fear domestically than internationally.

The KSA is nominally a leader in the war on terrorism. Yet Riyadh’s attack on Yemen has empowered that nation’s al-Qaeda affiliate. Moreover, domestic “anti-terrorism” efforts are directed at suppressing dissent more than violence.

Riyadh also has underwritten Islamic radicalism around the world. While the royal regime apparently has not directly supported terrorism, individual Saudis have, both funding and joining al-Qaeda. The George W. Bush administration refused to release a 28-page section of the 9/11 report detailing apparent Saudi support for terrorism. Wikileaks disclosures discussed the continuing flow of Saudi money to terrorists.

Finally, the kingdom does not share values with America, democratic or other. Saudi Arabia is at best a slightly more civilized variant of the Islamic State.

The latest Freedom House rated the KSA as “Not Free.” The group said simply: “Political dissent is criminalized.” Reported Human Rights Watch: “Saudi authorities continued arbitrary arrests, trials, and convictions of peaceful dissidents. Dozens of human rights defenders and activists continued to serve long prison sentences for criticizing authorities or advocating political and rights reforms.”

Religious freedom also doesn’t exist. The U.S. Commission on International Religious Freedom noted that “Saudi Arabia remains unique in the extent to which it restricts public expression of any religion other than Islam.”

As I point out on Forbes online, “in practice, Saudi Arabia differs little than the Soviet Union. Both were totalitarian states animated by transcendent worldviews. Both regimes suppressed human liberty in service to those visions, one secular, and the other religious. The main difference is that the second posed a direct security threat to America, while the first sometimes interferes with U.S. interests indirectly.”

None of this prevents Washington and Riyadh from cooperating. However, the U.S. should stop acting as supplicant.

The royals’ continued rule is not vital to America. The greatest danger for Washington may be the moral hazard from defending such a regime, encouraging it to resist needed reforms.

Would the U.S. “lose leverage” by disengaging? America has spent decades attempting to micro-manage and geopolitically engineer the region, with disastrous results. Let Saudi Arabia spend its money and lives for a change.

President Obama wasted his final trip to the KSA pursuing politics as normal. Washington needs to put distance between America and its counterproductive partners.

America’s major alliances date back decades. Washington has been protecting Europe, Japan, and South Korea for longer than most Americans have been alive.

The original justification for this expensive global role was the Evil Empire, as President Ronald Reagan called the Soviet Union. Aggressive communism had to be contained, and America’s allies were in various degrees of prostration at the end of World War II and the Korean War.

For a brief moment of history the U.S. had to take on a unique and oversize international role. But as the world moved into the 1980s, it was the lethargy and stinginess of America’s allies that prevented them from taking over most, if not full, responsibility for their own security.

Washington should stop allowing Asians and Europeans to continue cowering behind it. That they prefer not to do more is understandable. But that is no reason for America to do it for them.

The traditional argument for turning the Pentagon into an international welfare agency was security. That claim has grown threadbare given how the existential threats that once confronted, or at least plausibly affected, the U.S. have disappeared.

No peer competitor, no contending global power, no countervailing alliance, no cohesive coalition of adversaries, no credible threat to global commerce, no anything at all.

What remains is, well, paltry compared to threats of global and nuclear conflict. Genuine problems, such as terrorism, but ones requiring limited, nuanced responses, not big alliances, aggressive wars, foreign occupations, endless bombing, and more. The Pentagon could do and spend far less while still safeguarding Americans.

So then, what are the existing alliances for?

Anthony V. Rinna of the SinoNK group recently suggested protecting commerce: “Managing the threat posed by instability on the Korean Peninsula to the United States’ economic interest cannot be done only through a combination of diplomacy and nuclear deterrence. It also requires the continual presence of American conventional armed forces.”

Why?

First, the Republic of Korea vastly outranges its antagonist on virtually every measure of power: 40 times the GDP, twice the population, overwhelming international connections. Even if Washington had sufficient economic interests at stake to warrant a defense guarantee in theory, one would not be necessary in practice. Foreign policy should reflect international realities, which change over time.

Second, the age of mercantilism long passed. The military should not be used to promote normal economic interests. Washington would end up squandering the money and lives of all Americans to protect the profits of a few.

While economic survival might become an existential issue, that certainly is not at stake with Asian, let alone South Korean, trade. There’s also an interest in ensuring navigational freedom, including commercial traffic.

But neither of these justifies defending a mid-size ally with modest economic ties to America. At a fraction of today’s cost Washington could threaten retaliation against any strike on international shipping—a far more sensible step than entering someone else’s war.

While the U.S. would suffer more if commerce with China and Japan was disrupted, a renewed Korean war likely would have only limited impact on that. Pyongyang’s reach is modest and the DPRK would have no incentive to encourage other nations to become belligerents against it.

Third, Seoul’s neighbors have far more at stake and should act to limit the damage from any conflict. Indeed, a second Korean war would have a variety of humanitarian, economic, and military impacts on China and Japan.

Turning friendly states into long-term military dependents is bad enough. As I wrote for National Interest, “doing the same for China would be bizarre. Washington has been attempting to convince the PRC that North Korea harms Chinese as well as American interests. The best way to make that argument would be to step back and allow Beijing to confront its North Korean problem directly.”

Whatever past arguments for Washington’s role as global policeman, times have changed. America’s populous and prosperous friends should defend themselves, including their economic interests.

It’s quite rare that a counsel denies Cato (or anyone) consent to file an amicus brief. That just forces us to file a perfunctory motion, thereby drawing more court attention to our brief than it otherwise would’ve received. Experienced lawyers know that there’s really no point objecting to these briefs; the court will itself reject any bizarre or disrespectful ones, and judges are free to disregard (or not even read) amicus briefs anyway.

In the case of Harte v. Board of Commissioners, however, counsel representing some (but not all) of the defendants in a civil suit made just such an objection. As you’ll recallHarte is the case where police officers are accused of using excessive force and pursing an unreasonable search for their military-style raid of a private home in Johnson County, Kansas. The evidence that led to the raid was that the Hartes had visited a gardening store and thrown out wet tea leaves that were misidentified as marijuana.

Cato thus moved for permission to file before the U.S. Court of Appeals for the Tenth Circuit, arguing simply that the case implicates the constitutional safeguards that exist to preserve person and property from unnecessary harms. Our brief advances unique and helpful arguments about Fourth Amendment common law and the systemic use of military-style raids by police. Had law enforcement in this case done routine police work, an armed raid need not to have taken place.

Counsel for Johnson County, perhaps seeing an opportunity to bill his clients for more (taxpayer-funded) hours, disagreed. To Lawrence L. Ferree III, our brief is “simply a lame attempt to morph this case into Cato’s libertarian mantra” on a case of “narrow issues.” Credit is due to Mr. Ferree for his rhetorical flare, but his arguments fall flat. 

Ferree tried to argue that our brief would not be helpful to the court because the search of the Harte’s residence wasn’t a “raid,” our brief is “boilerplate,” and that the case does not implicate Fourth Amendment common law. Well, it takes a certain degree of mental gymnastics to argue that a seven-person team armed with AR-15s, trained dogs, and a battering ram isn’t a raid team. It’s also curious that Ferree’s legal argument against our filing contained some of the exact same language he used to oppose the Marijuana Policy Project’s brief – “boilerplate” arguments, indeed.

Cato’s arguments have never been made in this court before, let alone in the same case. It takes chutzpah to accuse another counsel for using boilerplate language – as if we file briefs by cutting and pasting tired tropes from previous briefs – by using boilerplate language.

The most unique part of Mr. Ferree’s arguments was that they actually boiled down to a reason for the court to grant Cato’s motion. He spends most of his time responding to Cato’s substantive Fourth Amendment arguments. Ferree is certainly free to tell the court why Cato is wrong – that would be good lawyering – but such arguments have no bearing on whether Cato’s arguments are helpful or useful or non-duplicative, the applicable legal standard that justifies amicus filings.

And that’s why a Tenth Circuit motions panel earlier this week granted Cato’s motion, subject to reconsideration by the panel that will hear the case (a formality). So that’s a win on the sort of nuts-and-bolts litigation that we rarely get to pursue.

We can only hope that the court sees our arguments on the merits in a similarly favorable light.

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