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New data from Gallup suggests that residents in US states with freer markets are more optimistic about their state’s economic prospects. In their 50-State Poll, Gallup asked Americans what they thought about the current economic conditions in their own state as well as their economic expectations for the future. North Dakota (92%), Utah (84%), and Texas (82%) top the list as states with the highest share of residents who rate their current economic conditions as excellent or good.  In stark contrast, only 18% of Rhode Island residents, 23% of Illinois residents, and 28% of West Virginians rate their state’s economic conditions as excellent or good. Similarly Americans most optimistic about their state’s economic futures include Utah (83%) and Texas (77%) while states at the bottom include Illinois (34%) and West Virginia (36%).

What explains these stark differences in economic evaluations and expectations across US states? Could differences across states in economic freedom, such as government regulations on business, tax rates, government spending, and property rights protection, be part of the story?

Figure 1: Relationship Between State Economic Freedom Scores
and Residents’ Evaluations of Current Economic Conditions


 Source: Economic Freedom Index 2011, Freedom in the 50 States; Gallup 50-State Poll 2015

To investigate, I examined the Freedom in the 50 States Economic Freedom Index, calculated by Jason Sorens and William Ruger and published by the Mercatus Center, to compare. I then contrasted this data with Gallup’s public opinion numbers. It turns out there is a strong relationship between economic freedom and public economic optimism. Americans who live in states that have lower taxes, lower government spending, fewer regulations on business, better property rights protections, better tort system, etc. also tend to have more confidence in their state’s economic conditions.

Figure 1 shows the relationship between states’ economic freedom scores and public evaluations of current economic conditions. As you can see, states that are more economically freemeaning less government regulation, lower taxes, and less government spending, etc.also tend to have residents that say their state economies are excellent or good. This correlation1 between economic freedom and residents’ evaluations of their state’s current economic conditions is .55.

Next, Figure 2 shows the relationship between each state’s economic freedom score and share of residents in each state who think their state economy is getting better. As you can see, states that are more economically free tend to have residents who are more optimistic about their the states’ economic futures. The correlation between economic freedom and residents’ positive economic outlook is .44. Notably, economic optimism in states like New York and California that have less free economies tend to be the exception rather than the rule when compared to the nation as a whole. 

Figure 2: Relationship Between State Economic Freedom Scores
and Residents’ Positive Economic Outlook 

Source: Economic Freedom Index 2011, Freedom in the 50 States; Gallup 50-State Poll 2015. Correlation: .44, if outliers like New York, California, and Nevada are excluded, correlation rises to .58.

Of course, correlation is not causation. But it would also be a mistake not to consider the obvious possibility that economic freedom and economic success are related. There is a reasonable argument to be made that making it easier to start businesses, reducing regulatory barriers, and leaving more money in the private sector can lead to more entrepreneurship, companies creating more jobs, technological innovation, economic growth, and thus more optimistic people.

While these results do not report on actual economic conditions, public perception of economic conditions is also crucially important. Americans’ perception of their state economies can act like a composite score of how residents perceive the multifarious economic forces at work in their states. 

In sum, these results provide some indication that freer markets may provide greater hope for a better economic future.

Check out the Freedom in the 50 State Rankings:


1 Correlation is a measure of relationship

At the start of the year there was a lot of speculation on whether President Obama would crown his historic rapprochement with Cuba with an equally historic visit to the island. The guesswork is over with today’s announcement of his trip next month.

Many things have changed in the last year in the relationship between the United States and Cuba: diplomatic ties have been restored, the leaders of both countries have met twice, dozens of commercial flights per day have been authorized, hundreds of thousands of Americans are travelling to the once-forbidden island, and many economic sanctions have been lifted.

And yet there’s one thing that hasn’t changed: the repressive nature of Cuba’s Communist dictatorship. If anything, things might be getting worse. The Miami Herald’s columnist Andrés Oppenheimer recently reported that the number of self-employed workers in Cuba has actually dropped in the last six months. Arbitrary detentions of peaceful opposition activists are on the rise. Economic reforms are still too timid. If there is a lot of enthusiasm about Cuba lately, it has to do more with what Washington is doing than what Havana is actually delivering.

This is not to say that Obama’s rapprochement with Cuba has failed: Washington’s previous policy of isolating the island was utterly counterproductive. But we should not kid ourselves about an imminent change of the nature of the Castro regime.

President Obama has said that his trip’s main objective will be to “improve the lives of the Cuban people.” If so, he should follow the steps of Jimmy Carter when he visited the island in 2002: the former president met with dissidents and was allowed to address the nation uncensored in a speech on national TV where he called for democratic elections, respect for human rights and greater civil liberties.

If Obama fails to get similar concessions, his trip will only boost the standing of the Castro regime. It will be all about cementing his legacy and not about trying to improve the lives of ordinary Cubans. 

Wow, will bacon be next?

Last fall we wrote about the improvement in tomato taste that results from growing them in elevated carbon dioxide and seawater (Idso and Michaels, 2015). Now it looks like the same treatment improves lettuce. 

Enhancing crop nutritional value has long been a goal of the agricultural industry. Growing plants under less than optimal conditions for a short period of time generally increases their oxidative stress. To counter such stress, plants will usually increase their antioxidant metabolism which, in turn, elevates the presence of various antioxidant compounds in their tissues, compounds that can be of great nutritional value from a human point of view, such as helping to reduce the effects of ageing.

However, stress-induced nutritional benefits often come at a price, including a reduction in plant growth and yield, making it unproductive and costly to implement these practices in the real world. But what if there was a way achieve such benefits without sacrificing crop biomass, having our cake and eating it, too? An intriguing paper recently published in the journal Scientia Horticulturae explains just how this can happen, involving lettuce, salt stress, and atmospheric CO2.

According to Pérez-López et al. (2015), the authors of this new work, “few studies have utilized salt irrigation combined with CO2-enriched atmospheres to enhance a crop’s nutraceutical value.” Thus, the team of five Spanish researchers set out to conduct just such an experiment involving two lettuce cultivars, Blonde of Paris Badavia (a green-leaf lettuce) and Oak Leaf (a red-leaf lettuce and a common garden variety). In so doing, they grew the lettuce cultivars from seed in controlled environment chambers at either ambient or enriched CO2 for a period of 35 days after which they supplied a subset of the two treatments with either 0 or 200 mM NaCl for 4 days to simulate salt stress. Thereafter they conducted a series of analyses to report growth and nutritional characteristics of the cultivars under these varying growth conditions. And what did those analyses reveal?

As shown in Figure 1, elevated CO2 increased the leaf water content, biomass and antioxidant capacity of both lettuce cultivars under normal and salt-stressed growing conditions. Plant biomass, for example, was enhanced by 42 and 62 percent for green and red lettuce, respectively under normal growing conditions (no salt stress) and by 56 and 61 percent, respectively, when salt stressed. Similarly, elevated CO2 increased lettuce antioxidant capacity by 196 (green cultivar) and 293 percent (red cultivar) under normal conditions (non-salt-stressed), and by 61 (green cultivar) and 109 percent (red cultivar) when salt stressed. What is more, as this graphic illustrates, elevated CO2 totally ameliorated the negative effects of salt stress on plant biomass and antioxidant capacity, such that the value of these two parameters under elevated CO2 and salt stress conditions were higher than values observed under normal CO2 with no salt stress and normal CO2 with salt stress. 

Figure 1. Effects of salt treatment and CO2 concentration on water content (A), biomass production (B) and antioxidant capacity (C) of green leaf and red leaf lettuce. Adapted from Pérez-López et al. (2015).

Pérez-López et al. also report that “under elevated CO2, both lettuce cultivars increased the uptake of almost all minerals to adjust to the higher growth rates, reaching similar concentrations to the ones detected under ambient CO2.” However, the red cultivar “seemed to gain a greater advantage from elevated CO2 than the green cultivar because it better adjusted both mineral uptake and antioxidant metabolism.”

Such positive findings bode well for the future of the lettuce industry, for as concluded by Pérez-López et al., “elevated CO2 alone or in combination with short environmental salt stress permits us to increase the nutritional quality (increasing the concentration of some minerals and antioxidants) of lettuce without yield losses or even increasing production.” And that is a future worth hoping for!

PS: One of us is going to run a seawater experiment on tomatoes this summer. Readers should get a full report around August 15!



Idso, C.D., and P. J. Michaels, 2015.  Want better tomatoes?  Add carbon dioxide and a pinch of salt!

Pérez-López, U., Miranda-Apodaca, J., Lacuesta, M., Mena-Petite, A. and Muñoz-Rueda, A. 2015. Growth and nutritional quality improvement in two differently pigmented lettuce cultivars grown under elevated CO2 and/or salinity. Scientia Horticulturae 195: 56-66.


When the Brookings Institution and Urban Institute claim any tax reform will “lose trillions” they are comparing their static estimates of revenues from those plans (which assume tax rates could double or be cut in half with no effect on growth or tax avoidance) to totally unrealistic “baseline” projections from the Congresional Budget Office.  Those CBO projections assume that rapid 2.4% annual increases in real hourly compensation over the next decade will push more people into higher tax brackets every year.  As a result, the average tax burden supposedly rises forever – from 17.7% of GDP in 2015 to 19.9% in 2045 and 23.8% by 2090.  And, typical of static estimates, this ever-increasing tax burden is imagined to have no bad effects on the economy.

Such a high level of federal taxation never happened in the past (20% was a record set in the tech stock boom of 2000) and it will never happen in the future.  In short, this is an entirely bogus basis by which to judge tax reform plans.

A far more sensible question would be this:

Will the Cruz or Rubio tax reforms raise just as much money as the Obama “tax increase” has – namely, 17.5% of GDP from 2013 to 2015. If so, then real tax revenues will grow faster after reform because real GDP growth will surely be at least 1.2% faster – or a middling 3.5% a year, which is all the cautious Tax Foundation estimates suggest.

Ted Cruz says the defense plan he unveiled Tuesday in South Carolina would give the U.S. military “more tooth, less tail.” Actually Cruz’s plan would produce more of everything, especially debt.

Cruz says that as President he’ll spend 4.1 percent of gross domestic product (GDP) on defense for two years, and 4 percent thereafter. As the chart below shows, under standard growth predictions, Cruz’s plan produces a massive increase in military spending: about $1.2 trillion over what would be Cruz’s first term and $2.6 trillion over eight years. Details on the chart are at the end of this post.

The chart also shows how much Cruz’s plan exceeds the Budget Control Act’s caps on defense spending, which remain in force through 2021. Spending bills exceeding those caps trigger sequestration: across-the-board cuts that keep spending at the cap. So Cruz’s plan depends on Congress repealing the law. Experience suggests that Congress will instead trade on dodgy future savings to raise caps by twenty or thirty billion a year—about a tenth of what Cruz needs.

Cruz is relatively clear on the tooth—force structure—he hopes to buy. He’d grow the Army’s end strength to 1.4 million, with at least 525,000 in the active force. Those numbers are scheduled to fall to 980,000 and 450,000in 2018.  Cruz would “reverse the cuts to the manpower of the Marines,” which presumably means going from the current 182,000 active to the 202,000 peak size reached in 2011 for the Iraq and Afghanistan wars. The Navy would grow from 287 to at least 350 ships, and the Air Force would add 1,000 aircraft to reach 6,000. The plan would also modernize each leg of the nuclear triad of intercontinental ballistic missiles, bombers and submarine-launched ballistic missiles. It asserts that the triad is “on the verge of slipping away,” ignoring current plans to modernize each leg, needlessly.

Despite the plan’s “paying for rebuilding” section, Cruz is unclear on how he’ll fund the buildup. The “less tail” option is a red-herring. The implication, standard among those trying to look fiscally responsible while throwing money at the military, is that you cut administration to pay for force structure. But Cruz doesn’t sustain the pretense beyond attacking the Pentagon’s “bloated bureaucracy and social experiments.” He never identifies what bureaucracy—commands, budget line or contracts—he’d axe. He doesn’t explain how to overcome the Pentagon’s tendency to increase overhead during buildups or betray concern about the meager results of past efforts to shift tail to tooth. He complains about “12,000 accountants in Pentagon,” but between its buildup and push to audit the Pentagon, the Cruz administration would need thousands more. Cruz’s refusal to “bow to political correctness,” evidently does not cover politically-dicey efficiency measures like another Base Realignment and Closure round and reforming military benefit and compensation packages. Neither does Cruz say how his idea of social experiments, like letting gays serve openly or accommodating soldiers allergic to gluten, add costs.

Cruz, of course, will not fund his buildup through taxes. Instead, the plan mentions selling federal assets, unspecified spending cuts, and tax revenue juiced by four or five percent annual growth. Wishful thinking seems a fair summary. Asset sales would only help marginally. The plan lacks a method for abolishing Democrats, who will almost certainly retain enough Senators to keep non-defense discretionary spending pegged to defense, or to make entitlement cuts politically unpalatable. And betting that you can vastly outperform typical growth isn’t sound planning.

That leaves debt as the most likely way President Cruz will fund his buildup, adding to the pile he already plans. And that helps explain why Cruz’s defense plan won’t happen. With CBO’s recent estimate of accelerated deficit growth, the politics constraining Pentagon spending should last. Assuming Democrats and vulnerable Republicans continue to block big entitlement spending cuts and Republicans prevent tax increases, concern about deficits translates into pressure to restrain discretionary spending, of which defense is more than half.

Also in the unclear category: the rationale undergirding the plan. Cruz’s force structure hopes, which he doesn’t price, have little to do with his 4 percent spending goal, beyond a general commitment to more. As Matt Fay explains, spending four percent of GDP on defense is to punt on strategy, which involves prioritizing resources to meet threats. Threats don’t grow with wealth or fade with poverty.

Cruz’s force structure suggestions also lack a strategic basis. Cruz criticizes nation-building wars and worries about China. But rather than distribute his buildup accordingly by focusing it on the Navy and Air Force, he gives equally to the ground forces. Ultimately, Cruz proposes spending a lot more to do what we are now doing. Like Jeb Bush, Marco Rubio, and even Dick Cheney, Cruz’s rhetorical assaults on the Obama administration’s defense policy belie underlying agreement with its premises. I attack those bipartisan beliefs in various other places.


The chart covers 2018-2025 because those are the first and last fiscal year budgets that the next administration will plan, assuming it wins a second term. For GDP growth, the chart uses recent Congressional Budget Office projections. The current spending plans are in budget authority and come from the Pentagon’s new five year defense spending plan (see figure 1-3 on page 1-5) and Office of Management and Budget estimates for subsequent years (table 28-1). That spending track falls under 3 percent of CBO’s GDP prediction in 2018 and slides toward 2.5 percent by the mid 2020s.  The caps are on page 13 here. All figures are in nominal dollars. 

Barely a week after a Georgia judge threw out a challenge to the state’s scholarship tax credit law, today the Oklahoma Supreme Court unanimously upheld school vouchers for students with special needs.

Plaintiffs argued that the Lindsey Nicole Henry Scholarships for Students with Disabilities violated the Oklahoma constitution’s historically anti-Catholic Blaine Amendment, which prohibits the state from appopriating public funds for sectarian purposes. A lower court had agreed, limiting the vouchers only to private schools without any religious affiliation. Today, the state supreme court overturned that decision, upholding the law in its entirety.

Plaintiffs had argued that the vouchers unconstitutionally aided religious schools, but the court found that the voucher law “is void of any preference between a sectarian or non-sectarian private school” and that “there is no influence being exerted by the State for any sectarian purpose with respect to whether a private school satisfies [the law’s eligibility] requirements.”

Despite being “religion neutral,” the plaintiffs argued that the law is unconstitutional because more voucher recipients chose to attend religious schools than non-religious schools. However, the court rejected this claim, citing the U.S. Supreme Court’s decision in Zelman v. Simmons-Harris (which upheld school vouchers in Ohio): “the constitutionality of a neutral educational aid program simply does not turn on whether and why, in a particular area, at a particular time, most private schools are religious, or most recipients choose to use the aid at a religious school.” What matters to the constitution, the Oklahoma court explained, is only that the law is religiously neutral and that parents have a choice: “When the parents and not the government are the ones determining which private school offers the best learning environment for their child, the circuit between government and religion is broken… Scholarship funds deposited to a private sectarian school occur only as a result of the private independent choice by the parent or legal guardian.” [emphasis in the original]

The court outlined the key factors that led to their conclusion:

(1) voluntary participation by families in the scholarship program;

(2) genuine independent choice by parent or legal guardian in selecting sectarian or non-sectarian private school;

(3) payment warrant issued to parent or legal guardian [not directly to a private school];

(4) parent endorses payment to independently chosen private school;

(5) Act is religion neutral with respect to criteria to become an approvate school for scholarship program;

(6) each public school district has the option to contract with a private school to provide mandated special educational services instead of private services in the district;

(7) acceptance of the scholarship under the Act serves as parental revocation of all federally guaranteed rights due to children who qualify for services under [the Individuals with Disabilities Act]; and

(8) the district public school is relieved of its obligation to provide educational services to the child with disabilities as long as the child utilizes the scholarship.

The timing of the decision couldn’t be better for supporters of the education savings account (ESA) legislation that just received a green light from the Oklahoma House Common Education Committee this week. Opponents had argued that the ESAs were likely unconstitutional, but with the court’s unanimous ruling, that will no longer be a concern. Legislators can now focus on the merits of ESAs.

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

The Obama Administration is involved in an all-out effort to soften the severity of blow that the U.S Supreme Court dealt the EPA’s Clean Power Plan (CPP) last week.*

In the day following the Court’s ruling, White House Deputy Press Secretary Eric Schultz referred to the Supreme Court’s stay as a “temporary procedural determination” and then added that “[i]t is our estimation that the inclusion of [the extensions of the renewable energy tax credits] is going to have more impact over the short term [on greenhouse gas emissions]than the Clean Power Plan.”

We covered Schultz’s first statement in our Spin Cycle from last week, giving it our top award of five Spinnies.

Here we examine the second part of his statement, that the extension of the investment tax credit (ITC) and the production tax credit (PTC) on solar and wind power, approved by Congress last December “is going to have more impact over the short term than the Clean Power Plan.”

On its face, we must admit this is true. Primarily because, under the CPP, the states aren’t required to begin cutting power plant emissions until 2022—far outside what we would consider “over the short term.” So, by the letter of the (now stayed) law, the CPP wouldn’t have to result in any greenhouse gas reductions prior to 2022. Schultz statement lacks the proper context. Walking (instead of driving) to lunch one time next week would also produce “more impact over the short term [on greenhouse gas emissions]than the Clean Power Plan” (stayed or not).

Granted, the CPP encourages (but doesn’t require) states to begin early. Based on the Regulatory Impact Analysis of the CPP, the EPA estimates that since some states would begin early, the CPP would reduce greenhouse gas emissions by about the equivalent of 75 million metric tons of carbon dioxide (mmtCO2eq) by 2020. Once all states were taking part in the CPP, the annual emissions reduction estimated by the EPA grows to 240 mmtCO2 by 2025—the year that President Obama promised that the country would achieve a 26-28 percent economy-wide greenhouse gas reduction beneath 2005 emissions levels (the projected emissions reduction under the CPP  grows to 376 mmtCO2eq by 2030).

So how large is the expected impact of the ITC and PTC extensions (which includes a phase-out over the next five years)? The White House earlier reported:

This would reduce carbon dioxide emissions by more than 200 million metric tons in 2020 alone, helping to ensure that the United States achieves our 2020 target to reduce emissions in the range of 17 percent below 2005 levels, and providing momentum towards our 2025 target.

In essence, the extension of the renewable tax credits acts as a jump start for the CPP. Then when the CPP fully kicks in, it will subsume the emissions reductions achieved through the tax credit extension. 

But if the CPP is never put into place, the impact of the renewable tax credits alone would still be identifiable—and would stand at about the same level of emission reduction as the CPP has been projected to achieve in 2025.

So, when it comes down to it, it appears that through the year 2025 the ITC/PTC extension is projected by the Obama Administration to generate roughly the same greenhouse gas emission reduction as the CPP. [Note: this is not the case in the period 2025-2030 when CPP achieves ever greater emissions reductions.]

If the story ended here, we’d probably be compelled to only award the Administration only perhaps 1 or 2 Spinnies (for espousing “short term” gains over zero).

But this isn’t where it ends. Schultz went on to assure the gathered press that:

“There are driving forces that will allow the United States to meet its [Paris] commitment outside of the Clean Power Plan rule,” Schultz said. “One of those main forces is the inclusion of the tax credits at the end of the 2015 budget agreement.”

This is just wrong. There is no way that the US will meet its Paris target “outside of the Clean Power Plan.” In fact, even with the CPP, there was little chance of meeting the president’s promised target without a whole lot of other actions that have not yet been proposed.

The Administration knows well that this is the case, as it is the conclusion of a large number of independent analyses.

Here is a sampling of a few of them:

Climate Action Tracker:  “The US will have to implement additional policies on top of the currently planned policies to reach its 2025 pledge, which requires a faster reduction rate than the rate before 2020.”

Rhodium Group: “Reducing emissions 26-28% below 2005 levels by 2025 will not be possible through current and planned policies alone.”

Climate Advisors: “To achieve the U.S. pledge, the next President would need to vigorously implement the Obama administration policies and propose new emission reduction measures”

Niskanen Center: “’Current measures’ [which include CPP] will not get us to the 2025 target.”

If you add in the latest news about a potential (un-reported by the EPA) large positive trend in methane emissions (a powerful greenhouse gas) from the United States, the U.S. Paris target is impossible without the Clean Power Plan (lacking a major economic collapse).

For making believe otherwise, and wanting all us all to buy into the charade, we award 4 Spinnies, or Heavy Duty Spin Cycle to the White House and its communications team.

Heavy Duty


*The sudden death of Justice Antonin Scalia, along with the likelihood that there will be no confirmed replacement until after the inauguration of a new president in 2017 means that the fate of the CPP will be determined at the ballot box on November 8, 2016.

As Walter Olson has noted, before Antonin Scalia became a federal judge and ultimately a Supreme Court justice, he spent part of his career working in public policy, including a stint as editor-in-chief (and other roles) of Regulation, which was then published by the American Enterprise Institute and now is published by Cato. Scalia wrote articles for the magazine himself and edited those written by others. The sharp analysis and rhetorical wit he would later display on the Court can be seen in Regulation’s pages.

For example, in this 1979 article he argued against the Legislative Veto, a proposal to give Congress the broad power to disapprove specific regulations through resolution (which could not be overturned by presidential veto). Though Scalia was often skeptical of federal regulatory policy, he was also skeptical of this effort to constrain it, because it further removed Congress from its constitutional duty to set policy. He wrote:

Has the difficulty really been that Congress has tried repeatedly to reverse the results of agency rulemaking through legislation but has been stymied by the President? I am not aware of a single instance. … The problem has been, quite simply, that both houses have had neither the time nor the inclination to review agency rulemaking, just as they have had neither the time nor the inclination to write more detailed legislation in the first place, which would render the most significant rulemaking unnecessary.

In the same vein, this 1980 Scalia article examined the judicial implications of congressional delegation of authority to executive agencies. Such delegation is worrisome and constitutionally dubious, he acknowledged; lawmakers dodge the difficult policy questions, leaving them to agency staff. However, the proposed remedy for this delegation—having the courts settle such issues when discerning legislative intent—is even more worrisome and dubious, he argued. Rather, Congress should fulfill its duties under the Constitution:

The sorts of judgments alluded to above—how great is the need for prompt action, how extensive is the social consensus on the vague legislated objective, and so forth—are much more appropriate for a representative assembly than for a hermetically sealed committee of nine lawyers. In earlier times heated constitutional debate did take place at the congressional level.

Later that year he contributed to Regulation’s special issue, “On Saving the Kingdom,” which featured suggestions to President-Elect Ronald Reagan from eight of the nation’s top regulatory experts. (Another contributor was Bill Niskanen, who would join Reagan’s Council of Economic Advisers and later become chairman of the Cato Institute—and another editor of Regulation). Scalia’s article, on the Federal Trade Commission, focuses on very specific topics, including whether Reagan’s appointment power could significantly alter the policy decisions of the five-member commission (at least initially), and the need to reform the FTC’s powers and objectives. But at the end, Scalia floated a big-picture question that is still relevant today: given the Department of Justice’s antitrust division and the consumer-protection powers of several federal agencies, is the FTC necessary? He wrote:

Total elimination of the commission’s antitrust powers would be politically most difficult; there also is some policy argument against it, namely, that it is only the commission’s pro-competitive, antitrust responsibilities that have given it any internal balance and prevented it from becoming, in effect, a single-mission consumer protection agency. Perhaps the most that can be recommended along these lines at the present time is the establishment of a task force to consider the antitrust enforcement issue. It might consider, at the same time, consolidation within the FTC (or elsewhere) of the various, and sometimes overlapping, consumer protection responsibilities now entrusted to other agencies—the Consumer Product Safety Commission, the Food and Drug Administration, and the Department of Agriculture, to mention only a few.

Scalia’s short article in the first issue of 1981, boldly titled, “Regulatory Reform: The Game Has Changed,” continued to offer regulatory advice to the new administration. He noted that, historically, Republican administrations had focused on regulatory reforms intended to obstruct future Democratic administrations from making new rules; early Reagan reform proposals offered more such efforts. The problem, he lamented, is the Reaganites weren’t realizing the field had reversed: instead of obstructing future rulemakings, they should be vigorously writing rules that embodied their own economic and political theories:

Executive-enfeebling measures such as those discussed above do not specifically deter regulation. What they deter is change. Imposed upon a regulation-prone executive, they will on balance slow the increase of regulation; but imposed upon an executive that is seeking to dissolve the encrusted regulation of past decades, they will impede the dissolution. Regulatory reformers who do not recognize this fact, and who continue to support the unmodified proposals of the past as though the fundamental game had not been altered, will be scoring points for the other team.

The final article of his tenure as editor-in-chief offered a surprising critical review of the federal Freedom of Information Act. Scalia agreed with the ideals behind FOIA, but not the law that ultimately resulted (following amendments in 1974) and its consequences. He wrote:

When one compares what the Freedom of Information Act was in contemplation with what it has turned out to be in reality, it is apparent that something went wrong. The act and its amendments were promoted as a means of finding out about the operations of government; they have been used largely as a means of obtaining data in the government’s hands concerning private institutions. They were promoted as a boon to the press, the public interest group, the little guy; they have been used most frequently by corporate lawyers. They were promoted as a minimal imposition on the operations of government; they have greatly burdened investigative agencies and the courts. … What happened in the 1974 amendments to the Freedom of Information Act is similar to what happened in much of the regulatory legislation and rulemaking of that era: an entirely desirable objective was pursued single-mindedly to the exclusion of equally valid competing interests. In the currently favored terminology, a lack of cost-benefit analysis; in more commonsensical terms, a loss of all sense of proportion.

Displaying his trademark wit, he concluded of FOIA, “It is the Taj Mahal of the Doctrine of Unanticipated Consequences, the Sistine Chapel of Cost- Benefit Analysis Ignored.”

These articles remind readers of Scalia’s skill in communicating complex and important issues to a general audience. Such talents are as important—and scarce—today as they were in the 1970s and 1980s.

For the past quarter century, the Cato Institute has published the magazine Regulation, which gives it the honor of carrying on part of the intellectual legacy of Antonin Scalia. Scalia served as editor-in-chief through much of the magazine’s early period, during which it was a project of the American Enterprise Institute. He shared those duties for a time with distinguished economist Murray Weidenbaum, who also went on to great things as chair of President Reagan’s Council of Economic Advisors, and with Anne Brunsdale, who went on to serve as a commissioner on the International Trade Commission. (I was there, too, as an associate editor for much of this period, and I share a few recollections from that era in a piece this morning at The Daily Beast: “My own anecdote about Justice Scalia is that he once hired me for my dream job because I wouldn’t stop arguing with him.”) 

One of the magazine’s high points in its early years had an even more direct Cato connection, the classic debate between Scalia and his former Chicago faculty colleague Richard Epstein on the proper role of the courts in protecting economic liberty. The debate was itself based on an “Economic Liberties and the Constitution” conference sponsored by the Cato Institute, instigated by Roger Pilon and organized by Jim Dorn.  Scalia – by that point, of course, no longer editor and instead a judge on the D.C. Circuit – begins his piece thus:

I recall from the earliest days of my political awareness Dwight Eisenhower’s demonstrably successful slogan that he was “a conservative in economic affairs, but a liberal in human affairs.” I am sure he meant it to connote nothing more profound than that he represented the best of both Republican and Democratic tradition. But still, that seemed to me a peculiar way to put it — contrasting economic affairs with human affairs as though economics is a science developed for the benefit of dogs or trees; something that has nothing to do with human beings, with their welfare, aspirations, or freedoms.

Epstein’s side of that memorable debate is here, and he recalls it in this new appreciation. As a judge, Scalia was somewhat more willing to assert constitutional protection for economic liberties than one might have guessed from his stand in the debate, so perhaps he was influenced to some extent by the give-and-take.   

Cato has published Regulation since 1990 and Peter Van Doren has served as its editor since 1999; the late William Niskanen has more details on its history in this retrospective. You can browse the magazine’s archives here.  During his editorship, which lasted until 1982, Scalia wrote many pieces both signed and unsigned. His contributions to the unsigned front part of the magazine can often be identified once you know to look for his distinctive style (often there was one such piece per issue). As to his signed pieces, my colleagues will have more on those in an upcoming Cato at Liberty post.




In 2013, 53 percent of all employment-based green cards actually sponsored the family members of workers while only 47 percent went to the workers themselves.  Some of those family members are workers, but they should have a separate green card category or be exempted from the employment green card quota altogether. 

If family members were exempted from the quota, or there was a separate green card category for them, an additional 85,232 highly skilled immigrant workers could have entered in 2013 without increasing the quota.    

As I explain in this video, President Obama has the power to improve this allocation of visas: 

For more on this issue, please read this work by immigration attorneys Cyrus Mehta and Gary Endelman and quotes here by renowned immigration attorney Matthew Kolken.

Two recent economic studies purporting to estimate the impact of the Trans-Pacific Partnership (TPP) agreement on the U.S. economy have sparked a kerfuffle between the deal’s advocates and detractors. One study, published by the Peterson Institute for International Economics, estimates increases to U.S. income of 0.5 percent by 2030 with gains to labor accruing slightly more than gains to capital.  The other, published by Tufts University’s Global Development and Environment Institute, estimates that the TPP would reduce U.S. income by 0.5 percent, reduce employment by almost half a million jobs, and increase income inequality.  The findings of each study are being trumpeted as dispositive by their respective constituencies. Who’s right?

In a recent blog post, PIIE-affiliated economist Robert Lawrence wrote that to judge the credibility of these models, three questions should be asked: Is the model used appropriate for exploring trade policy? Does the model depict TPP sensibly? Are the results credible? Lawrence then goes on to explain why he answers “yes” to each question regarding the PIIE study and “no” to each regarding the Tufts study. Well sure, Bob, at a minimum, those criteria are important. And they help distinguish the PIIE model as relatively credible – that is, relative to the Tufts model. But what about relative to reality?  

A model might depict TPP sensibly, but incompletely and imprecisely.  How can we be sure those imperfections don’t have a large impact on the results?  And even if the results are credible, in that they don’t deviate dramatically from expectations, their purpose – or, at least, the weight assigned to these studies in the public’s mind – is to produce reasonable estimates, not to corroborate the model’s capacity to process reasonable expectations.

With apologies to my trade economist friends, anyone who treats the estimates produced by economic models as mathematical truths is, well, part of the problem. Lawrence doesn’t do that, but too many trade policy combatants do. Certainly, some models are more rigorous than others, but all rely on assumptions. The greater the number and complexity of exogenous policy changes being modeled, the greater the number of estimates and assumptions to incorporate, and the further removed from reality the results will be. Sometimes the estimates are merely best guesses and sometimes the assumptions have no better than a 50 percent probability of occurrence.  For example, many of the economic benefits of TPP will derive from reductions in non-tariff barriers to trade, such as regulatory opaqueness.  How does one model the increase in regulatory transparency?  How does one account for stricter environmental or labor or intellectual property regulations? How does one assign numeric values to rules limiting restrictions on cross-border data flows?

The PIIE study assumes that 75 percent of non-tariff barriers constitute trade restrictions (with 25 percent being regulations intended to promote or protect social goods, such as food quality and safety, for example) and that about 75 percent of those NTBs affecting goods trade and 50 percent affecting services trade are actionable.  So, the PIIE assumptions are that 56.25 percent and 37.50 percent of NTBs affecting good and services, respectively, will be reformed under the TPP, and the effect of each reform is modeled as a trade cost reduction of 0 to 100 percent for each combination of industry and country.  One other assumption is that 20 percent of these reforms also will benefit non-TPP members, which – through a feedback loop – will magnify the benefits to TPP-country economies.  So, modeling the TPP requires numerous assumptions and estimates from the outset.

With respect to the PIIE study, perhaps, we can accept that the sign of the coefficient on income is positive (“the TPP will produce benefits for the U.S. economy”), but the magnitude of 0.5 isn’t much better than a guess because it is the product of so many assumptions and estimates.  And despite the model’s relative rigor in using microeconomic behavioral equations to transmit the effects of TPP, predicting how economic agents will react to a confluence of policy changes is a dicey proposition – a fatal conceit. Economics is not science. The preferences, information, and knowledge that drive economic decisions are all personal, nuanced, and dispersed.  They cannot be represented mathematically with any precision.  Assumptions about how economic agents should react that are, at best, based on probabilities and expectations of utility- or profit-maximization don’t always hold. To their credit, the Tufts economists, responding to Lawrence’s legitimate indictment of their approach, concede that economic models involve a lot of guesswork and that economic modelers have a long way to go.

What the public and policymakers should be considering – what should be under the spotlight – are the rules of the TPP, not the projected outcomes. The outcomes cannot be known with certainty. The rules are objective and concrete. We should be able to draw conclusions about the desirability of the TPP from its language – from the rules it articulates – without guarantees of particular outcomes. The TPP should be judged by the degree of economic freedom it restores, not by a shouting match over highly contestable estimates.  Indeed, some chapters of the TPP are expressly about reducing trade barriers, including tariffs and other obstacles to competition. Those provisions should be universally embraced, as they will help restore our economic freedoms. (For those whose companies or industries are subsequently exposed to greater competition when barriers are removed, please realize that you have been benefitting at everyone else’s expense and that liberalization rights that wrong.)

Other chapters of the TPP are less about liberalization and more about crafting common rules about how governments treat foreign enterprises and how they enforce labor rights, environmental regulations, intellectual property provisions, and so on.  It is less clear whether and how these “governance” chapters enhance or impair or economic freedom. But each chapter can be assessed exhaustively on a qualitative basis, without need of highly malleable estimates of economic outcomes.

In the weeks and month ahead, look for a comprehensive, chapter-by-chapter assessment of the TPP from my Cato Institute trade policy colleagues and me.

The ongoing U.S. presence in Afghanistan is plenty misguided on its own: our efforts likely increase rather than decrease Muslim antipathy toward the United States, and our track record of fostering democracy, capitalism, peace, or freedom via invasion and occupation is, to say the least, poor.

To make matters worse, we are complicating the mission by also trying to suppress opium production:

The United States spent more than $7 billion in the past 14 years to fight the runaway poppy production that has made Afghan opium the world’s biggest brand.

Beyond the usual arguments, American-inspired drug prohibition is especially problematic in Afghanistan.  The inevitable evasion and corruption undermine the rule of law, and anti-opium actions such as crop eradication generate hostility from local farmers rather than winning their hearts and minds.

Not to mention that all our efforts appear to have no meaningful impact on the opium trade:

More opium was cultivated in 2014, the last year of the NATO combat mission, than in any other year since the United Nations began keeping records in 2002.

The good news is that, despite U.S. efforts, the opium trade is normalizing:

But here in one of the few corners of Helmand Province that is peaceful and in firm government control, the green stalks and swollen bulbs of opium were growing thick and high within eyeshot of official buildings during the past poppy season — signs of a local narco-state administered directly by government officials.

In the district of Garmsir, poppy cultivation not only is tolerated, but is a source of money that the local government depends on. Officials have imposed a tax on farmers practically identical to the one the Taliban use in places they control.

Some of the revenue is kicked up the chain, all the way to officials in Kabul, the capital, ensuring that the local authorities maintain support from higher-ups and keeping the opium growing. And Garmsir is just one example of official involvement in the drug trade.

Multiple visits to Afghan opium country over the past year, and extensive interviews with opium farmers, local elders, and Afghan and Western officials, laid bare the reality that even if the Western-backed government succeeds, the opium seems here to stay.

To be sure, official prohibition combined with de facto legalization is far from the libertarian ideal.

But de facto tolerance for the opium trade allows farmers to earn a living in peace and saves the resources now wasted on attempts at opium suppression.  Permitting the market to move above ground also shrinks the violence associated with underground markets.

Profits from opium trafficking are, of course, a source of revenue for terrorists.  That, however, is also an artifact of prohibition: if opium were legal, the profit rate would be no different than for any other crop, and terrorists would have one less source of revenue.

In response to my op-ed in this morning’s Philadelphia Inquirer, calling on the Senate to delay filling Justice Scalia’s Supreme Court seat until after the people have spoken in November about which way they want the country to go, I’m getting quite a bit of feedback claiming that the president was elected not for three but for four years.

True, and he’s perfectly within his constitutional power to nominate someone to fill the seat. But those critics, pointing to the 2012 elections, seem to forget the 2014 elections, which were widely read as a repudiation of Mr. Obama and his policies. The Republican Senate is perfectly within its constitutional powers to ignore any such nomination—much as Senator Schumer and his colleagues did for two years after President George W. Bush made 11 appellate court nominations in 2001, including John Roberts, Michael McConnell, and Miguel Estrada, all with stellar qualifications.

What seems to be forgotten as well is that, at the end of the day, these are political decisions. The Constitution leaves the composition of the courts indirectly but ultimately to the people, a power they exercise through elections. And that is why this next election will be so important.

Under the header, “Obama is president until January 20, 2017. It’s his job to nominate a justice, the Senate has a responsibility to vote,” Hillary Clinton’s Facebook page issues the following statement:

Nearly everything Clinton says here is either misleading or just untrue.

It was actually 222 days between when Justice Powell announced his retirement (June 26, 1987) and the Senate confirmed Justice Kennedy to succeed him (February 3, 1988).

Reagan nominated Kennedy in a non-election year (November 30, 1987).

Recent history is replete with partisan jockeying over Supreme Court nominations, from both Republicans and Democrats. Kennedy was Reagan’s third pick to fill that vacancy. The first was Robert Bork, the second was Douglas Ginsburg. Opponents painted Bork as a racist and misogynist. Ginsburg withdrew after he came under fire for having smoked marijuana (O, the humanity!) as a young man. Sen. Chuck Schumer once called on the Senate to block almost anyone George W. Bush nominated to the Supreme Court.

As a senator, Barack Obama tried to filibuster a vote on Samuel Alito’s nomination. Once Obama became president and started nominating judges, Sen. Harry Reid moved to prevent Republicans from doing the same thing to lower-court nominations. Et cetera, et cetera.

As for our constitutional principles, whether or not Senate Democrats acted wisely in rejecting those nominations, there can be no question they acted well within the powers the Constitution grants them. Schumer, Obama, and Reid likewise acted well within those powers.

The Senate does not have “a responsibility to vote” on an Obama nomination, any more than it had a responsibility to vote on Ginsburg’s nomination. The Senate can withhold its consent any way it wants.

Thus, if Senate Republicans now refuse even to entertain any Obama nominations, there will be nothing ahistorical about it, and nothing particularly improper about it. There won’t even be anything particularly Republican about it. Hillary is just making stuff up to serve her own partisan interests.

Which means she, too, is acting well within the historical tradition of Supreme Court nominations.


In addition to his many judicial bona fides, Justice Antonin Scalia was an underappreciated defender of the Fourth Amendment. With his typical thoroughness and deep textualism that reshaped American judging, the late conservative icon threw out convictions of individuals who were arrested as a result of unconstitutional violations. In Kyllo v. United States (2001), police illegally took thermal images of a man’s home to find a marijuana grow operation. In United States v. Jones (2012), a man had his Jeep tracked with GPS devices without a warrant, leading to a drug trafficking conviction. And in Florida v. Jardines (2013), police brought a drug dog onto a man’s porch to indicate drug activity inside, again, a marijuana grow operation. To Justice Scalia, the sanctity of a person’s home and property—beyond the “reasonable expectation of privacy” standard that dominates Fourth Amendment jurisprudence—was to be held above the governmental interests in fighting crime.

In Kyllo, Scalia wrote for a divided 5-4 majority that included Justices Clarence Thomas, Ruth Bader Ginsburg, David Souter, and Stephen Breyer: “The Fourth Amendment’s protection of the home has never been tied to the measurement of the quality or quantity of information obtained….In the home, our cases show, all details are intimate details, because the entire area is held safe from prying government eyes.” In Jardines, another non-traditional 5-4 split in which he was joined by Justices Thomas, Ginsburg, Sonia Sotomayor, and Elena Kagan, Scalia affirmed this dedication to the home, writing “[W]hen it comes to the Fourth Amendment, the home is first among equals.”

Jones was unanimous and, consequently, one of his dryer decisions lacking both colorful barbs and grand statements about the Fourth Amendment itself. However, it bore the Scalian hallmark of deep historical consideration of the government intrusion, and the Court ultimately rejected the warrantless tracking of Mr. Jones’ Jeep.

When unencumbered by a coalition for a majority or unanimous opinion, Scalia famously unleashed his contempt for specious arguments in his dissenting opinions. In Maryland v. King (2013), a case in which the state of Maryland prevailed on warrantless DNA collection from arrestees, Scalia set the tone at the beginning:

“The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence. That prohibition is categorical and without exception; it lies at the very heart of the Fourth Amendment.”

Scalia, joined by Justices Ginsburg, Kagan, and Sotomayor, picked apart the majority’s claim that identification was the target of the collection. The idea that a person who had been fingerprinted, had retained counsel, and had filed motions in court, needed to be identified by DNA testing “taxes the credulity of the credulous.” The government, the dissenters claimed, was trying to gather evidence of other crimes not related to the crime for which he had been charged. Scalia added, “Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches. The Fourth Amendment must prevail.”

Scalia wasn’t perfect on the issue. For example, he signed on to the majority opinion in Kentucky v. King (2011), which said police officers who knock on a door without suspicion can enter the residence to stop the destruction of evidence, arguably creating their own ‘exigent circumstances’ exception to the warrant requirement. Only Justice Ginsburg dissented in that case.

But, generally speaking, Justice Scalia understood that the Fourth Amendment should protect all Americans from the insecurity that comes from roving watchers and investigators equipped with ever-evolving technologies and tactics. While it may be tempting to balance law enforcement interests to keep “guilty” people in prison, Scalia recognized the importance of limiting the government’s ability to impose upon the lives and homes of American citizens in criminal investigations.

Unfortunately, concurrences in these cases and other opinions demonstrate that most of the remaining justices are still wed to the utterly arbitrary—and thus inherently unreliable—“reasonable expectation of privacy” standard laid out in Katz v. United States (1967). My colleague Jim Harper calls the Katz standard “a one-way ratchet against privacy and Fourth Amendment protection.” Scalia, on the other hand, used Katz to broaden the traditional common-law trespass rules dating back centuries, not supplant them with judicial determinations of privacy expectations.

Because the Fourth Amendment is neither a hot-button political issue that dominates nomination fights nor is its support easily predictable on the left-right divide, a nominee from either party—most likely a tabula rasa given present political circumstances—is not very likely to be a stalwart guardian of Fourth Amendment rights.

Court watchers and legal scholars will take years to comprehend the sum of Justice Scalia’s profound impact on the Supreme Court and American law. While a celebrated conservative, Scalia’s jurisprudence was not easily pigeonholed and his Fourth Amendment jurisprudence should not be forgotten. As law enforcement will continue to find new ways to get around the Fourth Amendment, we can only hope that the successor to his seat on the bench carries on this important but overlooked part of his legacy. In the meantime, the American public has one fewer protector against unconstitutional police intrusion.

Resquiescat in pace 

As government workers – though only about a third of private-sector office workers – get a day off for Presidents’ Day (legally, though not in fact, George Washington’s Birthday), I thought I’d offer some reading about presidents.

First, my own tribute to our first president, the man who led America in war and peace and who gave up power to make us a republic:

Give the last word to Washington’s great adversary, King George III. The king asked his American painter, Benjamin West, what Washington would do after winning independence. West replied, “They say he will return to his farm.”

“If he does that,” the incredulous monarch said, “he will be the greatest man in the world.”

Then, of course, Gene Healy’s book The Cult of the Presidency, which argues that 200 years after Washington, “presidential candidates talk as if they’re running for a job that’s a combination of guardian angel, shaman, and supreme warlord of the earth.” Buy it today, at a 50 percent discount!

Gene updated that argument with a short ebook, False Idol: Barack Obama and the Continuing Cult of the Presidency. As they say, start reading in minutes!

And then you can read my short response to Politico’s question, who were the best and worst presidents? I noted:

Presidential scholars love presidents who expand the size, scope and power of government. Thus they put the Roosevelts at the top of the list. And they rate Woodrow Wilson – the anti-Madisonian president who gave us the entirely unnecessary World War I, which led to communism, National Socialism, World War II, and the Cold War –8th. Now there’s a record for President Obama to aspire to! Create a century of war and terrorism, and you can move up from 15th to 8th.

Hmmm, maybe it would be better to just read a biography of George Washington.


Senate Majority Leader Mitch McConnell (R-KY) responded to the sudden death of Supreme Court Justice Antonin Scalia with a press release saying, “this vacancy should not be filled until we have a new President.” Republican presidential candidates Ben Carson, Sen. Ted Cruz (TX), and Sen. Marco Rubio (FL) agree. Hillary Clinton spoke for many Democrats: “The Republicans in the Senate and on the campaign trail who are calling for Justice Scalia’s seat to remain vacant dishonor the Constitution. The Senate has a constitutional responsibly here that it cannot abdicate for partisan political reasons.” Conor Friedersdorf says the no-vote stratagem is “illegitimate” because “the Senate does have an obligation to fulfill its ‘advice and consent’ obligation….A preemptive rejection of any possible Supreme Court appointment is self-evidently in conflict with that obligation.” Clinton and Friedersdorf are wrong. Senators have every right to advocate not holding a vote on an Obama appointment, and not to hold a vote.

Clinton and Friedersdorf are overlooking the “consent” part of “advice and consent.” Consent means the Senate is under no obligation whatsoever even to hold a vote on any presidential appointment. The Senate’s obligation is to do what the Senate wants, and only what the Senate wants. Those are the rules. To try to hold senators to a different rule is to try to change the rules on them–and people tend to resent that. Everyone is free to disagree with the positions individual senators or the Senate as a whole take on individual nominations or prospective nominations. But there is no question that senators individually or collectively can deny their consent to any actual or prospective nomination for any reason–just as the American people can vote for whomever they want, for whatever reason they want.

Indeed, President Obama isn’t even entitled to nominate a replacement for Justice Scalia–or at least, Congress can deny him that right. The Constitution gives Congress the power to decide how many seats there are on the Supreme Court. In 1789, there were only six. Given sufficient congressional support (i.e., veto-proof majorities in both chambers), Congress could reduce the number of Supreme Court justices from the current nine to eight. McConnell, Cruz, and Rubio could propose doing so right now. It seems strange to criticize senators who are merely expressing in what circumstances they will withhold their consent when Congress has the power to deny the president the ability to fill this vacancy entirely by itself eliminating this vacancy.

At the same time Democrats turn a blind eye to President Obama repeatedly ignoring constitutional limits on his power, they claim Republicans would dishonor the Constitution if they use powers the Constitution clearly grants them. That is unlikely to dissuade Senate Republicans from delaying a vote on Scalia’s successor until 2017. Nor should it. For more on this topic, please read this by my colleague Ilya Shapiro at Forbes.

Scalia’s untimely passing was a gut punch. I didn’t agree with him all the time. But I agree with Trevor Burrus about him. RIP.

Much will be said in the coming days and weeks about Justice Scalia’s legacy.  He served on the Supreme Court for 30 years and was always an active presence during the Court’s oral arguments.  Because he served such a long time, it will take some time to adjust to his absence.  Scalia’s most important legacy will not be any particular opinion he authored, but his approach to constitutional interpretation in general.  He was a champion of the constitutional text and the original understanding of the charter. Scalia stopped the liberals from nullifying the parts of the Constitution that they disagreed with, such as property rights, federalism, and the right to keep and bear arms. In recent years, Scalia criticized his liberal colleagues for citing the practices and precedents of foreign countries because those rulings could not help to shed any light on the meaning of the American Constitution.  His finest hour, in my opinion, was when he defended the Great Writ of habeas corpus against a dangerous attack from conservative lawyers in the Bush administration in the aftermath of 9/11.

Scalia was a conservative, not a libertarian, so I disagreed with many of his opinions, but one can’t really appreciate Scalia unless one was reading Supreme Court rulings in the years before he arrived on the Court in 1986.  The quality of the legal analysis and writing were generally poor.  Scalia brought real intellectual rigor to the Court’s internal debates and opinions.  The conservative legal movement has lost its greatest champion.  Scalia was a gamechanger and now that he is gone, there is much uncertainty.

Go here for the epic debate at Cato between Antonin Scalia and Richard Epstein in 1984.

The news has just broken that Supreme Court Justice Antonin Scalia, 79, was found dead today in his room at a luxury resort in west Texas where he was attending a private event. He apparently died of natural causes.  

Scalia has been a major force in American law since President Reagan nominated him to the Supreme Court in 1986. His opinions, including his trenchant dissents, have shaped every area of our law. A leader of the conservative wing of the Court, the force of his intellect, both on and off the bench, was immense.

The immediate question on many minds, of course, is whether his seat will be filled before President Obama leaves office. Given the growing differences between the president and the Republican majority in the Senate, especially over the reach of executive power under the Constitution, it is likely that the seat will remain vacant until the next president is in office.

May Justice Scalia rest in peace.


Justice Antonin Scalia died today. It is a profound loss to the Court, the nation, and to the study of law. Everyone should mourn his loss, no matter which side of the political spectrum they are on.

Yet, due to Scalia’s divisiveness, there will no doubt be many uncouth tweets, posts, and op-eds in the coming days from those who disagreed with him more often than not. While there are other justices on the “conservative” side of the Court, Scalia’s pugnacious and often vituperative opinions have a way of either getting under your skin (if you disagree) or making you triumphantly raise your fist in the air (if you agree). In my opinion, Scalia was not only finest writer ever to sit on the Court, he was one of the best rhetoricians in history.

In the coming days, we will see many reactions from across the political spectrum. I predict, and hope, that many of Scalia’s ideological opponents will give the man the respect he deserved. And perhaps that, more than anything, will be the testament to his enduring legacy. By any objective measure, Scalia is among the greatest justices in our history. With his penetrating logic and his colorful wit, Scalia was the most forceful and visible advocate for originalism, a theory of constitutional interpretation that was derided when he ascended to the bench and is now, for both liberals and conservatives, mainstream.

During law school, many of my classmates would comment on their intense dislike for Scalia. I always responded by pointing out how many opinions he had published in our textbooks. Those opinions weren’t just in there because they were comparatively fun to read, which is true, but because a Scalia opinion has a way of clarifying the legal questions at issue. They are perfect pedagogical devices. 

Unquestionably, Scalia’s ideas will still be discussed in 100 years, much in the same way we still discuss Joseph Story, Oliver Wendell Holmes, Jr., or Learned Hand. This raises the question, however, of whether Scalia was one of the last great Supreme Court justices. Let me explain:

Only a few hours after Scalia’s death was announced, people began discussing how an ensuing nomination fight would go down. Every indication points to complete stagnation, and President Obama will likely end his presidency unable to fill the vacancy, leaving the Court one justice short. Of course, he could nominate someone who the Senate would confirm–an ideological moderate–but he is no more likely to do that than a Republican president in the same situation. The Court is simply too important now.

Which is why Justice Scalia was one of the last of a dying breed: an iconoclastic Supreme Court justice with hard and fast principles, a blazing intellect, and the wherewithal to carry an entire school of jurisprudence on his back. In other words, someone who could never be confirmed today, no matter which party nominated them.

This is true for both parties. Many times, I’ve heard people on the left say, “we need a Scalia,” acknowledging the force of the man’s words and ideas. Current battles over the Court almost guarantee that neither side will find another one. 

Now, two qualifications are paramount for possible Supreme Court justices: 1) youth; 2) ideological conformity. The grueling nomination process also means that prospective nominees must have led ideologically milquetoast lives, never having said too much to push the wrong people’s buttons, but having said just enough to convince the party that they are a predictable, party-line vote. Certainly, a Scalia nomination today would have no chance of winning approval.  

Truly brilliant legal minds like Scalia help create the intellectual framework for our judicial system, and I fear that we will not see many more like him. 

My deepest condolences to the Scalia family.