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I was saddened by the news of Ralph Raico’s passing on December 13.

At Cato summer seminars during the 1980s, he delivered fabulous lectures about the history of liberty and its adversaries. He focused on European intellectual history, the development of classical liberalism. He was clear, concise and passionate, and his talks sparkled with memorable details. I still cherish audio cassettes of those lectures.

Ralph attended the Bronx High School of Science, earned a B.A. at the City College of New York, and joined the New York libertarian underground during the 1950s. His friends included Ronald Hamowy, Leonard Liggio, George Reisman, Robert Hessen, and other eager students of liberty. For a while, Ralph and his group, calling themselves the “Circle Bastiat,” met for discussions with Ayn Rand’s group, “the Collective.” Ludwig von Mises invited Ralph to attend his graduate seminars at New York University. Ralph became a close friend of Murray and Joey Rothbard.

By 1960, Ralph was at the University of Chicago for a Ph.D. in intellectual history. F.A. Hayek was his thesis advisor. Ralph started a quarterly student journal called New Individualist Review and served as editor-in-chief. Each issue featured about a half-dozen articles. The first issue appeared in April 1961. The lead article was “Capitalism and Freedom” by Milton Friedman. The second issue featured “Freedom and Coercion” by Hayek. And so it went, a cavalcade of scholarly stars, including three future Nobel Laureates. The authors included George Stigler, Yale Brozen, Karl Brunner, Henry Hazlitt, W.H. Hutt, David Levy, Walter Oi, Sam Peltzman, Wilhelm Roepke, B. R. Shenoy, Gordon Tullock, Joe Cobb, and E.G. West, in addition to Hayek and Friedman. A few conservatives joined the fun, too—William F. Buckley, Jr., M. Stanton Evans, and Russell Kirk.

As it happened, in 1962, when I had to decide on a college, I received a subscription flyer for New Individualist Review. I was familiar with a number of the authors, because I had read issues of The Freeman that my father had in his home office, and they published some of the same authors. So, the University of Chicago was where I had to go. While many college kids did fraternities or football, I did NIR. I met Ralph, joined the staff of New Individualist Review, and altogether 17 issues were published. NIR involved insightful, inspiring and sometimes amusing exchanges among students and professors in history, economics, philosophy, science, law, and business. For better or worse, NIR was a spontaneous phenomenon that never focused on becoming an institution. Gradually, everybody got their degrees and moved on. I was the last editor-in-chief (1968).

Ralph had so much literary talent that there were hopes he might produce a glorious history of liberty, like Lord Acton talked so much about but never started. Alas, time slipped through their fingers and—for now—that big story is still out there.

Nonetheless, Ralph became known for elegantly-crafted articles, pamphlets, and chapter contributions that helped illuminate the history of liberty.

Ralph translated Mises’ 1927 book Liberalismus, an excellent basic statement of classical liberalism, into English (1962), and a number of publishers have reissued his splendid translation.

He also wrote:

  • Die Partei der Freiheit: Studien zur Geschichte des deutschen Liberalismus (1999), about the fateful struggles of German classical liberals during the 19th century.
  • The Place of Religion in the Liberal Philosophy of Constant, Tocqueville, and Lord Acton (2010), his University of Chicago Ph.D. thesis.
  • Classical Liberalism and the Austrian School (2012). 

Venezuela – ravaged by socialist policies, corruption, and incompetence – is currently embroiled in the world’s 57th episode of hyperinflation. Since the beginning of November, the bolivar has lost 55.2 percent of its value on the black market (read: free market), worsening the situation in a country in which wheelbarrows have already replaced wallets. So, on November 30th, Venezuelan officials announced a misguided and foolhardy plan to issue larger bills in an attempt to mitigate the damaging effects of its hyperinflation.

But why is the Banco Central de Venezuela (BCV) redenominating? Because if it doesn’t, then the people are stuck. If you go to a market in Caracas today, you either need a wheelbarrow of cash or bigger bills – much bigger. So, President Maduro and the BCV hope that, by printing 20,000-bolivar notes, they can skirt around the hyperinflation problem until it goes away. And that’s a mug’s game.

In the early 1990s, Yugoslavia tried to combat its own hyperinflation by printing larger bills, and it failed horribly. Yugoslavia’s heavy inflation continued throughout the ‘90s, and the dinar was devalued 18 times between 1991 and 1999, losing 22 decimal places of value along the way. Yugoslavia’s monetary orgy finally came to an end when the Topcider mint ran out of capacity. Yugoslavia’s 313,000,000 percent monthly inflation transformed 500-billion-dinar bills into small change before the ink had dried.

Redenomination does nothing if elevated inflation levels persist – as Zimbabwe’s infamous 100-trillion-dollar note demonstrates – and Venezuela will be no different. When inflation goes to the moon, you physically cannot redenominate bills fast enough – you can only add zeroes to notes so quickly. In consequence, you are ultimately left with valueless notes with many zeroes and a “wheelbarrow problem.” The issuance of higher-denomination bolivar notes isn’t the end of this episode, and it’s not the solution.

In fact, the only surefire solution is either to dump the bolivar and replace it with the U.S. dollar or make the bolivar a clone of the dollar via an orthodox currency board, in which the bolivar trades at a fixed rate with the U.S. dollar, is totally convertible with the U.S. dollar, and is completely backed by U.S. reserves.

Here’s a letter to the editor I sent to the Washington Post that they didn’t publish, responding to a piece by their business columnist Steven Pearlstein.

To the editor:

Steven Pearlstein (Dec. 2) writes with apparent approval of the prospect that President Trump will “make an example of a runaway company by sending in the tax auditors or the OSHA inspectors or cancelling a big government contract. It won’t matter that, two years later, these highly publicized retaliations are thrown out by a federal judge somewhere. Most companies …will find a way to conform to the new norm.”

I was reminded of Paul Farhi’s revealing story in the Post last March about Donald Trump’s prolonged, losing libel suit against reporter Timothy O’Brien. Per that report, Trump “said in an interview that he knew he couldn’t win the suit but brought it anyway to make a point. ‘I spent a couple of bucks on legal fees, and they spent a whole lot more. I did it to make his life miserable, which I’m happy about.’”

The knowing use of a flimsy legal case to retaliate or intimidate, to inflict punishments or extract concessions a judge would never have ordered, is no more excusable when aimed at other sorts of businesses and professionals than when aimed at the press and reporters. In both cases it is wrong, it sets a bullying example to others, and it endangers the impartial rule of law.

— W.O.

President-elect Donald Trump announced that his will appoint John Kelly, retired Marine Corps general and former commander of United States Southern Command, to lead the Department of Homeland Security (DHS).  Kelly has made many statements in support of increasing border security, and appears to believe that insecurity caused by illegal behavior south of the border poses an “existential” threat to the United States.  So far, I have not found any statements by Kelly that reveal his opinions on legal immigration.

David North wrote a short blog pointing out that Kelly would be the third general in charge of immigration.  The others were three-star Army General Joseph May Swing (1954–1962) and retired four-star Marine General Leonard Fielding Chapman Jr. (1973–1977).  General Swing was an interesting head of the U.S. Bureau of Immigrant and Naturalization.  He oversaw and led a vast increase in border enforcement and a systematic liberalization of work visas in the Bracero Program.  The latter was essential to severely curtailing illegal immigration in the 1950s.      

Commissioner Swing realized that he would have to enlist the cooperation of the employers of unlawful migrant workers if he was to have any hope of shrinking the number of unauthorized workers.[i]  Such enlistment required the continued deregulation and expansion of the Bracero Program to provide an alternative, legal source of Mexican workers.   If the cost of employing Bracero workers was too high, farmers would just hire unauthorized immigrants as they threatened to do numerous times.[ii]  Prior to the expansion and partial deregulation of the Bracero Program in 1951, employers in the Rio Grande Valley referred to the Border Patrol as a “Gestapo outfit” that wrenched their willing unlawful workers away from employment.[iii] 

Before launching his enforcement operation, named Operation Wetback, Swing travelled and spoke to numerous audiences and farmers assuring them that their unlawful workers would be replaced with legal workers from Mexico on a Bracero work visa.[iv]  In Swing’s words, the purpose of a ten-day trip to visit farmers along the border prior to the launch of Operation Wetback was to tell them: “If there is any employer who cannot get legal labor all he has to do is let either the Department of Labor or Immigration know and we will see that he gets it … I am quite emphatic about this because I know I am going to run into some opposition in Southern Texas.”[v]  As a result, the illegal immigrant population cratered and was replaced by a legal workforce.

Swing characterized his success as an “exchange” of illegal workers for legal guest workers.[vi]   For example, the 1953 harvest in the Rio Grande Valley only employed 700 legal guest workers while in 1954 the number had grown to 50,326.[vii]  At every opportunity, Swing praised farmers and gave them credit for the substitution of illegal workers for legal Bracero workers, saying the “accomplishment of this task would have been impossible without the generous cooperation extended to the effort by ranchers, farmers, and growers.”[viii]  Swing didn’t attack employers but instead understood their incentives and worked with them to craft a sustainable solution.   

Beginning in 1954, Commissioner Swing also ordered the issuance of I-100 cards to law-abiding Bracero workers who were favored by particular American growers, further simplifying the bureaucratic process for them to re-enter and work in the future.[ix]  The INS eventually came to believe that the I-100 cards became an integral part of their efforts to keep unlawful immigration low.[x]  The INS also made it easy for Braceros to move among farms to work regardless of the original labor contract.[xi]  As historian Ernesto Galarza wrote, “[t]he most skeptical of farm employers could see that the private black market was no longer vital, now that a public one could be created at will.”[xii]  The Bracero Program made it economically advantageous for American employers of unlawful immigrants to cooperate with the Border Patrol and INS to ensure that their workforces were legal.

We don’t know how John Kelly will attempt to tackle the issue of illegal immigration besides support for more border security.  If he wants to be known as the man foremost responsible for ending illegal immigration in modern America, he should take a lesson from the first General to head immigration:  Liberalizing migration and working with the labor market, not against it, is essential to ending the flow of illegal immigration.    

 

[i] Kitty Calavita, Inside the State: The Bracero Program, Immigration, and the INS, Quid Pro Books, New Orleans, Louisiana, 2010, p. 57.

[ii] Ibid, p. 90.

[iii] Ibid, p. 37.

[iv] Ibid, p. 57.

[v] Ibid.

[vi] Ibid, p. 59.

[vii] Ibid.

[viii] Ibid, p. 63.

[ix] Ibid, pp. 94–95, 104–105.

[x] Ibid, p. 104.

[xi] Ibid, p. 107.

[xii] Ernesto Galarza, Merchants of Labor: The Mexican Bracero Story, McNally and Loftin Publishers, Charlotte, North Carolina, 1964, p. 69.

You Ought to Have a Look is a regular feature from the Center for the Study of Science.  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.

With news of the past week or so dominated by announcements and then post-announcement scrutiny of Trump’s cabinet picks, we highlight a few pieces that go into deeper waters on these (and other) topics.

First up is an informative piece by Vox’s Brad Plumer that’s built from an interview he conducted with Jody Freeman, a Harvard law school professor and former climate adviser to President Obama. Over the course of their conversation, Plumer and Freeman pretty much lay out a road map as to how the Trump Administration could go about undoing much of President Obama’s ill-advised (in our opinion) Climate Action Plan. The selection of Scott Pruitt to head the EPA is definitely a big step in that direction.

There is a lot of good stuff in Plumer’s piece, discussing ways to approach everything from overturning the moratorium on coal leases on public lands, to disallowing consideration of the social cost of carbon, to the rescinding the Clean Power Plan—some of these things, Freeman explains, are easier to do than others. Ultimately, Plumer tries to sum things up with what we guess was supposed to be an optimistic tone from his point of view (after all, he does write for Vox):

“It does sound like the main point here is that the federal government is this vast bureaucracy that can’t just be turned around overnight.”

To which we’ll add that perhaps this is true, but with a bit of slimming down and concerted effort, we can hope for success.

Next up we highlight another interview, this one between Christopher Flavelle, a Bloomberg View journalist, and Craig Fugate, director of FEMA. In the article, “FEMA’s Director Wants Capitalism to Protect Us from Climate Change,” Flavelle and Fugate discuss the federal government’s flood insurance program and how Fugate would like to see it overhauled to place more of the burden of ill-advised development on the states and localities that acceded to it in the first place, and to relieve the burden on the American taxpayer at large. Here’s a taste:

[Flavelle]: Federal disaster policy is built on a perverse incentive: Local governments have the greatest ability to reduce damage from storms but face little pressure to do so, because FEMA will pick up the tab. Earlier this year, you proposed a disaster deductible. How would you characterize the response from states?

[Fugate}: They felt this was a shifting of funding burden from the federal government back to the local. And I said, quite honestly, the answer is yes. We have set the threshold and the pain point of disasters so low, we’re not seeing a change in behavior.

The decisions about our built infrastructure are made at the local level on a daily basis, through land-use decisions, building-code decisions, permitting decisions. If they’re not looking at what that means as far as future stability in their tax base, future risk, a lot of times we get short-term development that is sold on the idea of jobs and growing the tax base – but also transferring more risk to the taxpayer.

There’s got to be a forcing mechanism. You’ve got to really look at this from the standpoint of, Can you afford disasters?… Why do we treat these areas with such deference and subsidies that nobody except for the taxpayer ends up on the hook?

[Flavelle]: Why is that so hard to change?

[Fugate}: Because we won’t call people out and say they’re socialists.

[Flavelle]: Who’s socialist?

[Fugate}: The builders and developers and all the people running around saying they’re capitalists and they’re Republicans and they’re conservatives, and it’s all about individual freedoms and making money and growing the tax base, and all the bullshit they throw at people, convincing them this is an economic boon activity. It’s nothing but socialism and social welfare for developers when you subsidize risk below which the public gets a benefit from.

They’ve got to be called out.

Property rights and all of that are such a powerful argument in many parts of the country, I don’t want to get into the argument about telling people where they can and can’t build. What I want to talk about is, Why are we subsidizing that risk?

While addressing climate change through adaptation was the presumptive premise of the conversation (an approach we prefer over mitigation), climate change or not, efforts to get the federal government out of the flood insurance business are very welcome.

And we’ll round out this week’s edition of You Ought to Have a Look with an article that may have been overlooked in the post-election news coverage but would potentially have made a bigger splash had it come out during this summer’s climate-change-is-behind-the-Zika-outbreak scare. It is a new study that finds that, no, it is not climate change that is behind the flourishing of mosquito populations across America, but rather the growth of the urban/suburban landscape and, more importantly, the ban on DDT use.

Valerie Richardson does a good job in covering the new finding in her Washington Times article. Richardson runs through a litany of claims by environmental groups that global warming is leading to more mosquitoes and, of course, more mosquito-borne disease outbreaks, and then gets to the kicker—“In the latest study, however, scientists said that previous research failed to take into account the impact of DDT and land use.” She continues:

“Although many studies have found positive correlations between temperature and insect populations, most have been limited in temporal scope to the past five decades and nearly all of these studies have ignored the influence of land use or anthropogenic chemical use,” said the paper.

The study also said that population growth had resulted in mosquitoes expanding their habitat to urban areas.

“While our correlative analyses suggested that DDT was the strongest driver of mosquito populations overall, other factors, such as land use, that have changed monotonically over the last century, were also important in explaining patterns of change in mosquito communities,” the paper said.

Richardson points out that “[t]he U.S. mosquito population is on the rise, but don’t blame climate change.”

And another one bites the dust.

Democrats complain that fake news stories from web sites supposedly linked to Russia undermined the electoral process. The Antiplanner has been concerned with a related issue for some time, which is fake news stories inspired by Russia that undermine our economy. Here are a few of those stories that I hope Democrats will disavow.

Fake News Item #1: Urban sprawl is paving over all of our farms

This is an old one that has been used to justify central planning similar to that done in the Soviet Union. According to the U.S. Department of Agriculture, the contiguous 48 states have 900 million acres of agricultural land, of which we use only about 40 percent for growing crops. The acres used for crop production have been declining, not because they are getting paved over, but because per-acre yields of most crops are growing faster than our population.

Meanwhile, the department also says that just 84 million acres have been urbanized. This is a little less than the Census Bureau’s estimate of 106 million acres, but either way, as the Department of Agriculture says, urbanization is “not considered a threat to the Nation’s food production.”

Fake News Item #2: Suburbs make people fat

This fake story came out when a fake-news group did a study that found a “small” correlation between suburbs and obesity, then loudly proclaimed that they had proven that suburbs make people fat. They ignored the truth that correlation does not prove causation, and later studies found that, if people in suburbs weigh slightly more than people in cities, it is because overweight people choose to live in the suburbs. Thus, the real story is that overweight people helped to make the suburbs, not the other way around.

Fake News Item #3: Urban transit saves energy

This fake story has been retold so often that people take it for granted. In fact, as the Department of Energy’s Transportation Energy Data Book reveals, the average car used about 3,122 BTUs per passenger mile in 2014 while the average transit bus used 3,829.

While some rail transit lines (notably the New York subway) used less energy than cars, calculations based on the National Transit Database reveal that, on average, transit used 3,141 BTUs per passenger mile in 2014. Moreover, of the 50 largest urban areas, just five have transit systems that use less energy per passenger mile than driving. Most transit also produces more greenhouse gases per passenger mile than the average car.

Fake News Item #4: Millennials want to live in dense urban neighborhoods, not low-density suburbs

This fake news story is based entirely on anecdotal evidence. In fact, a recent report from the Urban Land Institute (which itself favors more dense development) found that 74 percent of Millennials in the nation’s 50 largest metropolitan areas live in low-density suburbs, which is not much different from the 79 percent of the population as a whole. The difference is easily attributable to the reality that many Millennials haven’t yet earned enough income to buy their own home.

Fake News Item #5: Light rail relieves congestion

This fake-news story helped persuade voters in Los Angeles and Seattle to approve tens of billions of dollars worth of new rail construction last month. In fact, a recent study found that no correlation between transit usage and congestion. On the other hand, light rail often increases congestion because it either operates in streets, taking up space that could be used by cars, or crosses streets, delaying cars at intersections, and the delays are greater than the savings from the few cars that light rail takes off the roads.

There are many related fake-news stories, all of which are designed to lead to the same conclusions: government must control private land use to keep cities compact and must also heavily subsidize transit to provide mobility in those compact cities. This was the message of The Ideal Communist City, a book written by planners at the University of Moscow in 1965. An English version was published by George Braziller in 1971.

Just three years later, American urban planners published a book titled Compact City that presented the same messages and cited The Ideal Communist City as one of its influences. The Compact City book persuaded Congress to hold hearings in 1979 on how compact cities could save energy. Although the compact-city ideal has been thoroughly debunked, its advocates merely changed the name to “smart growth.”

Above is a three-dimensional density chart made by demographer Alain Bertaud showing a typical American urban area. Note that it has a high-density core surrounded by low-density suburbs, some of which have their own little high-density cores. In fact, the area shown is New York, which is atypical in many ways but in this way is typical.

Above is Bertaud’s three-dimensional version of an ideal compact or smart-growth city at the same scale as the previous chart. Note that it is of approximately equal density in both the core and its suburbs, and that outside of the urban area there is virtually no density. In fact, the urban area shown is Moscow, showing that the Soviet Union achieved its goal of making an ideal communist city.

Russia would clearly like to hamper our economy in the same way it hampered its own: with central planning, strict land-use controls prescribing how everyone can or cannot use their land, and mobility limited to where you can get to by mass transit. Numerous American groups have eagerly joined this effort by spreading fake news stories about the evils of sprawl and automobiles and why government should promote high-density cities and mass transit. Those who are upset about the influence of fake news on the recent election must expand their concern to the much deeper problem of the influence of fake news on the economy.

Over the summer, The New York Times published an error-ridden piece on Michigan’s charter schools that it has yet to retract. Now, the NYT is doubling down with another piece adding new errors to old ones. The errors begin in the opening sentence:

Few disagreed that schools in Detroit were a mess: a chaotic mix of charters and traditional public schools, the worst-performing in the nation.

This is editorializing thinly veiled as “news.” In fact, lots of experts disagreed with that statement. The original NYT piece received a wave of criticism from national and local education policy experts, charter school organizations, and other journalists. As I explained at the time, the central premise of the NYT’s takedown on Detroit’s charter schools was an utter distortion of the research:

The piece claims that “half the charters perform only as well, or worse than, Detroit’s traditional public schools.” This is a distortion of the research from Stanford University’s Center for Research on Education Outcomes (CREDO). Although the article actually cites this research – noting that it is “considered the gold standard of measurement by charter school supporters across the country” – it only does so to show that one particular charter chain in Detroit is low performing. (For the record, the “gold standard” is actually a random-assignment study. CREDO used a matching approach, which is more like a silver standard. But I digress.) The NYT article fails to mention that the same study found that “on average, charter students in Michigan gain an additional two months of learning in reading and math over their [traditional public school] counterparts. The charter students in Detroit gain over three months per year more than their counterparts at traditional public schools.”

As shown in this table from page 44 of the CREDO report, nearly half of Detroit’s charter schools outperformed the city’s traditional district schools in reading and math scores, while only one percent of charter schools performed worse in reading and only seven percent performed worse in math.

Grouping the very few underperforming charters with the approximately half of schools that perform at roughly the same level as the district schools distorts the picture. It’s just as fair to say that more than nine out of ten Detroit charters performed as well or better than their district school counterparts. The most accurate description would note that about half of Detroit’s charters outperform their district school counterparts, about half perform roughly the same, and a very small number underperform. […]

[NYT reporter Kate] Zernike is still claiming that the CREDO study “does not consider Detroit[’s charter sector] stellar,” even though both the 2013 CREDO study of Michigan’s charter sector and the 2015 CREDO study of charters nationwide found that, on average, Detroit’s charter schools outperformed the district schools that their students would otherwise have attended. Indeed, one even called Detroit’s charter sector “a model to other communities.”

Nevertheless the NYT has resurrected its spurious claims to attack Betsy DeVos, the president-elect’s pick for Secretary of Education. In the NYT’s telling, DeVos was responsible for killing a bill that would have imposed some sort of regulations on Michigan’s charter schools that supposedly would have improved the system:

So city leaders across the political spectrum agreed on a fix, with legislation to provide oversight and set standards on how to open schools and close bad ones.

But the bill died without even getting a final vote. And the person most influential in killing it is now President-elect Donald J. Trump’s nominee to oversee the nation’s public schools, Betsy DeVos.

Her resistance to the legislation last spring is a window into Ms. DeVos’s philosophy and what she might bring to the fierce and often partisan debate about public education across the country, and in particular, the roles of choice and charter schools.

The bill’s proposals are common in many states and accepted by many supporters of school choice, like a provision to stop failing charter operators from creating new schools. But Ms. DeVos argued that this kind of oversight would create too much bureaucracy and limit choice. A believer in a freer market than even some free market economists would endorse, Ms. DeVos pushed back on any regulation as too much regulation. Charter schools should be allowed to operate as they wish; parents would judge with their feet.

The idea that DeVos thinks “any regulation” is “too much regulation” is sheer nonsense. As I’ve detailed before, regulations in Michigan limit the ability of charter schools to set their own mission (e.g., they must be secular), mandate that they administer the state standardized test, forbid them from setting their own admissions standards, forbid them from charging tuition, limit who can teach in the schools, limit the growth of the number of schools, and so on. Calling this regulatory environment the “Wild West” is downright Orwellian.

The NYT piece never once lists any of the regulations to which Michigan’s charter schools are already subject, nor does it cite any education policy analysts who disagree with the reporter’s spin regarding Michigan’s charter sector. (The one dissenting voice was only quoted saying that DeVos “never said choice and choice alone is a panacea.”)

And what exactly did DeVos object to? More than 20 paragraphs into the article, the NYT finally explains:

But the provision that proved most controversial to the DeVoses would have established a Detroit Education Commission, appointed by the mayor. With three members from charter schools, three from the traditional public schools and one an expert in educational accountability, the commission was to come up with an A-to-F grading system for all schools, and evaluate which neighborhoods in the city most needed schools.

In other words, DeVos objected to giving district school officials and their political allies the power to regulate and even close down their competition. Why, she’s a veritable Ayn Rand!

Yet again, The Times fails to cite any education policy experts who were skeptical of the proposal or sympathetic to DeVos’s position. Moreover, in the antepenultimate paragraph, someone working for a DeVos-funded education advocacy organization in Michigan explained that DeVos supported the final version of the bill, which did not contain the commission but did “allow the state to close the [charter] schools at the bottom of existing state rankings,” putting lie to the reporter’s spin that DeVos thinks “any regulation is too much regulation.”

New York Times readers deserve better. 

Eighty-four percent (84%) of Americans oppose civil asset forfeiture–police “taking a person’s money or property that is suspected to have been involved in a drug crime before the person is convicted of a crime,” according to a new Cato Institute/YouGov survey of 2,000 Americans. Only 16% think police ought to be allowed to seize property before a person is convicted.

Civil asset forfeiture is a process by which police officers seize a person’s property (e.g. their car, home, or cash) if they suspect the individual or property is involved with criminal activity. The individual does not need to be charged with, or convicted of, any crime for police to seize assets.[1] In most jurisdictions police departments may keep the property they seize or the proceeds from its sale. However, as these survey results demonstrate, most Americans oppose this practice.

Find the full public opinion report here

In instances when police departments seize people’s cars, houses, or cash, 76% of Americans say local departments should not be allowed to keep the assets. Instead, 48% say seized assets should go into the state general fund, while another 28% say assets should go into a dedicated state-level general law enforcement fund. 

Although Americans prefer policing be done by local (not state or federal) authorities, only 24% think local police departments should keep the assets they seize. [2] Americans may believe transferring seized assets to a state-level fund will reduce local departments’ material incentive to seize people’s property.

Opposition to civil asset forfeiture cuts across demographics and partisanship. Strong majorities of whites (84%), blacks (86%), Hispanics (80%), Democrats (86%), independents (87%), and Republicans (76%) all oppose. In fact, virtually every major group surveyed solidly rejects the practice and prefers property only be seized after a person is convicted of a crime. Even those highly favorable toward the police staunchly oppose (78%) civil asset forfeiture.

Few understand the concept of civil asset forfeiture. Yet, once the concept is explained to them in concrete terms the public overwhelmingly rejects the practice. Thus, reformers’ primary challenge is informing the public that this practice occurs. Policy reforms may follow broader public knowledge of civil forfeiture.

 

For public opinion analysis sign up here to receive Cato’s upcoming digest of Public Opinion Insights and public opinion studies.

The Cato Institute/YouGov national survey of 2000 adults was conducted June 6-22, 2016 using a sample drawn from YouGov’s online panel, which is designed to be representative of the US population. YouGov uses a method called sample matching, and restrictions are put in place to ensure that only the people selected and contacted by YouGov are allowed to participate. The margin of sampling error for all respondents is +/-3.19 percentage points. The full report can be found here,  toplines results can be found here, full methodological details can be found here.

  

[1] The legal rationale is that the property itself may be involved in a crime, and thus must be seized. However in practice, since property can be seized without charging a person with a crime or convicting them, many innocent people have had their property taken from them without due process. See Marian R. Williams et al, “Policing for Profit: The Abuse of Civil Asset Forfeiture,” Institute for Justice, March 2010, http://www.ij.org/images/pdf_folder/other_pubs/ assetforfeituretoemail.pdf; “Civil Asset Forfeiture: 7 Things You Should Know,” Heritage Foundation Factsheet no. 141, March 26, 2014, http://thf_media.s3.amazonaws.com/2014/pdf/FS_141.pdf.

[2] John Samples and Emily Ekins, “Public Attitudes toward Federalism: The Public’s Preference for Renewed Federalism,” Cato Institute Policy Analysis no. 759, September 23, 2014, http://www.cato.org/publications/policy-analysis/public-attitudes-toward….

In 2011, federal authorities charged Calvin Walker, a Texas electrician, with 37 counts of fraud. Eighteen months later, Walker accepted a plea deal in exchange for all charges being dropped. That should have been the end of his legal saga. Yet two years later, Walker was again indicted for exactly the same alleged fraud, only this time by state authorities. He challenged this second prosecution as a violation of the Fifth Amendment, which guarantees that no person shall “be twice put in jeopardy of life or limb” for the same offense. But under a strange exception to the Double Jeopardy Clause created by the Supreme Court 60 years ago, both the state and federal governments are allowed to prosecute someone for the same act.

Cato has joined the Constitutional Accountability Center in filing a brief urging the Supreme Court to review of Walker’s case and overturn this misguided “dual sovereignty” exception. We make three principal arguments. First, none of the Framers would have contemplated such a large exception to Double Jeopardy protection. Even before the Founding, English jurist and legal theorist William Blackstone wrote that it was considered a “universal maxim of the common law of England, that no man is to be brought into jeopardy of his life, more than once, for the same offence.” And in congressional debates before the enactment of the Fifth Amendment, Rep. Roger Sherman observed that “the courts of justice would never think of trying and punishing twice for the same offence.”

Second, the practical magnitude of the dual-sovereignty exception is much greater today than it was 60 years ago. For most of our nation’s history, the federal government left most criminal matters to be handled by the states; there were relatively few offenses punishable by both authorities. But in recent decades, there has been “a stunning expansion of federal criminal jurisdiction into a field traditionally policed by state and local laws,” as Justice Clarence Thomas wrote in dissent in Evans v. United States (1992). Now that nearly every state crime has a federal analog, the dual-sovereignty exception risks entirely swallowing the Double Jeopardy rule.

Finally, the Supreme Court created the dual-sovereignty exception a decade before it held that the Double Jeopardy Clause fully applies to the states. Now that we know that it does, there’s no reason why a state prosecution shouldn’t “count” when a defendant objects to having been prosecuted twice. As Justice Hugo Black once put it, also in dissent, “If double punishment is what is feared, it hurts no less for two ‘Sovereigns’ to inflict it than for one.” Bartkus v. Illinois (1959). The Court should take this common-sense advice and put an end to the misguided dual-sovereignty exception, at least as it works in practice in modern times.

The Court will decide whether to take up Walker v. Texas early in the new year.

Kratom is a plant indigineous to Southeast Asia that, according to users, relieves pain more effectively—and with fewer side effects—than opioids. The FDA and the DEA have nevertheless proposed banning Kratom; see here for excellent background and discussion. One fact in particular caught my attention:

The U.S. government didn’t pay much attention to kratom until July 2013. That month, three advocacy groups sent a one-page letter to Daniel Fabricant, who was then the director of the FDA division that oversees the dietary supplement industry, which has annual revenues of $30 billion or more. The letter was co-signed by the heads of the United Natural Products Alliance, the Council for Responsible Nutrition, and the Consumer Healthcare Products Association, organizations representing dietary supplement producers and marketers such as Herbalife, Bayer, and Pfizer—but not, notably, any kratom vendors. “Given the widespread availability of kratom,” the letter said, “the dietary supplement industry is concerned about the potential dangers to consumers who may believe that they are consuming a safe, regulated product when they are not.” The organizations asked the FDA to “deter further marketing of kratom under the mistaken belief that it is a legitimate product.”

In other words, the U.S. government responded to complaints from competitors—not from consumers—in initiating its investigation of kratom.

Venezuela’s inflation has officially become the 57th official, verified episode of hyperinflation and been added to the Hanke-Krus World Hyperinflation Table, which is printed in the authoritative Routledge Handbook of Major Events in Economic History (2013). An episode of hyperinflation occurs when the monthly inflation rate exceeds 50 percent for 30 consecutive days. Venezuela’s monthly inflation rate first exceeded 50 percent on November 3rd and continues to do so, sitting at 131 percent as of December 11, 2016. The peak monthly inflation rate thus far was 221 percent, which is relatively low in the context of hyperinflations. This and more is documented in detail in the linked paper, which I co-authored with Charles Bushnell, titled “Venezuela Enters the Record Book: The 57th Entry in the Hanke-Krus World Hyperinflation Table,” newly published in the Johns Hopkins Institute for Applied Economics, Global Health, and the Study of Business Enterprise Studies in Applied Economics working paper series.

The Hanke-Krus World Hyperinflation Table and a chart of Venezuela’s monthly inflation rate are reproduced below. Sources for the Hanke-Krus World Hyperinflation Table are at the bottom.

 

 

 

 

Hanke-Krus World Hyperinflation Table Notes and Sources

- When a country experiences periods of hyperinflation that are broken up by 12 or more consecutive months with a monthly inflation rate below 50%, the periods are defined as separate episodes of hyperinflation.

- The currency listed in the chart is the one that, in a particular location, is associated with the highest monthly rate of inflation. The currency may not have been the only one that was in circulation, in that location, during the episode.

- We are aware of one other likely case of hyperinflation: North Korea. We reached this conclusion after calculating inflation rates using data from the foreign exchange black market, and also by observing changes in the price of rice. Based on our estimates, this episode of hyperinflation most likely occurred from December 2009 to mid- January 2011. Using black-market exchange-rate data, and calculations based on purchasing power parity, we determined that the North Korean hyperinflation peaked in early March 2010, with a monthly rate of 496% (implying a 6.13% daily inflation rate and a price-doubling time of 11.8 days). When we used rice price data, we calculated the peak month to be mid-January 2010, with a monthly rate of 348% (implying a 5.12% daily inflation rate and a price-doubling time of 14.1 days). All of these data were obtained August 13, 2012 from Daily NK, an online newspaper that focuses on issues relating to North Korea (http://www.dailynk.com/english/market.php). We also acknowledge that our investigation was aided by reports from Good Friends USA, a Korean-American advocacy and research organization, as well as from Marcus Noland at the Peterson Institute for International Economics. 

(*) The authors calculated Zimbabwe’s inflation rate, from August to November 2008, using changes in the price of the stock, Old Mutual, which was traded both on the Harare and London stock exchanges. The stock prices yielded an implied exchange rate for Zimbabwe dollars, under purchasing power parity.

(†) The Republika Srpska is a Serb-majority, semi-autonomous entity within Bosnia and Herzegovina. From 1992 until early 1994, the National Bank of Republika Srpska issued its own unique currency, the Republika Srpska dinar.

(‡) Greece’s inflation rate was estimated by calculating the drachma / gold sovereign exchange rate.

(§) The peak monthly inflation rate listed for China in the table differs from that presented in one of the authors’ previous pieces on hyperinflation (Hanke and Kwok, 2009). This revision is based on new data from a number of sources, which were recently obtained from the Library of Congress in Washington, D.C.

(**) We calculated the Free City of Danzig’s inflation rate using German inflation data, since the German papiermark was in circulation in Danzig during this time. It is worth noting that Germany and Danzig experienced different peak months of hyperinflation. This is case because the last full month in which the German papiermark circulated in the Free City of Danzig was September 1923. Germany continued to circulate the papiermark beyond this point, and subsequently experienced its peak month of hyperinflation (October 1923).

(††) The data for many of the post-Soviet countries were only available in the World Bank’s Statistical Handbook: States of the Former USSR. In this publication, the authors stated that the data should be viewed with an extra degree of caution because the statistics were taken from the corresponding official internal government source and not independently reviewed by the World Bank. However, these statistics are official and are the only source of data available for the corresponding time periods for each country.

(***) We calculated PPP implied inflation for Venezuela using black-market exchange rate data from dolartoday.com.

1. Nogaro, B. (1948) ‘Hungary’s Recent Monetary Crisis and Its Theoretical Meaning’, American Economic Review, 38 (4): 526–42.

2. Hanke, S. H. and Kwok, A. K. F. (2009) ‘On the Measurement of Zimbabwe’s Hyperinflation’, Cato Journal, 29 (2): 353-64.

3. a) Hanke, S. H. (1999) ‘Yugoslavia Destroyed Its Own Economy’, Wall Street Journal, April 28, p. A18.

b) Petrovic ?, P., Bogetic ?, Z. and Vujoševic ?, Z. (1999) ‘The Yugoslav Hyperinflation of 1992–1994: Causes, Dynamics, and Money Supply Process’, Journal of Comparative Economics, 27 (2): 335–53.

b) Rostowski, J. (1998) Macroeconomics Instability in Post-Communist Countries, New York: Carendon Press.

4. a) Republika Srpska Institute of Statistics, Announcements 19/92 (pg. 801), 20/92 (pg. 825), 1/93 (pg. 31), 2/93 (pg. 54), 3/93 (pg. 83), 4/93 (pg. 155), 7/93 (pg. 299), 16/93 (pg. 848), 19/93 (pg. 790), 20/93 (pg. 808), 23/93 (pg. 948), 1/94 (pg. 29), 9/94 (pg. 345), 17/94 (pg. 608), 22/94 (pg. 710), 23/94 (pg. 717), 26/94 (pg. 768), 27/94 (pg. 784), 30/94 (pg. 840), 1/95 (pg. 7), Banja Luka: Official Gazzette.

b) Vilendecic, S. (2008) Banking in Republika Srpska in the late XX and early XXI century, Banja Luka: Besjeda.

5. Sargent, T. J. (1986) Rational Expectations and Inflation, New York: Harper & Row.

6. Makinen, G. E. (1986) ‘The Greek Hyperinflation and Stabilization of 1943–1946’, Journal of Economic History, 46 (3): 795–805.

7. Chang, K. (1958) The Inflationary Spiral, The Experience in China, 1939-1950, New York: The Technology Press of Massachusetts Institute of Technology and John Wiley and Sons.

8. Sargent, T. J. (1986) Rational Expectations and Inflation, New York: Harper & Row.

9. IMF. ‘International Financial Statistics (IFS)’, Washington, D.C.: International Monetary Fund, accessed October 2009. http://elibrary-data.imf.org/.

10. World Bank. (1996) Statistical Handbook: States of the Former USSR, Washington, D.C.: World Bank.

11. Liu, F.C. (1970) Essays on Monetary Development in Taiwan, Taipei, Taiwan: China Committee for Publication Aid and Prize Awards.

12. IMF. ‘International Financial Statistics (IFS)’, Washington, D.C.: International Monetary Fund, accessed October 2009. http://elibrary-data.imf.org/.

13. Kreso, S. (1997) Novac Bosne i Hercegovine: Od BHD do Novog Novca BiH, Sarajevo: Jez.

14. White, E.N. (1991) ‘Measuring the French Revolution’s Inflation: the Tableaux de depreciation,’ Histoire & Mesure, 6 (3): 245 – 274.

15. Young, A. (1965) China’s Wartime Finance and Inflation, 1937-1945, Cambridge, Mass.: Harvard University Press.

16. State Statistics Committee of Ukraine. ‘Consumer Price Indices’, accessed May 2012. http://www.ukrstat.gov.ua/.

17. Sargent, T.J. (1981) ‘The Ends of Four Big Inflations’, working paper, Federal Reserve Bank of Minneapolis, 158.

18. IMF. ‘International Financial Statistics (IFS)’, Washington, D.C.: International Monetary Fund, accessed October 2009. http://elibrary-data.imf.org/.

19. Beaugrand, P. (1997) ‘Zaïre’s Hyperinflation, 1990-96’, working paper, International Monetary Fund, April, 97/50.

20. World Bank. (1993) Statistical Handbook: States of the Former USSR, Washington, D.C.: World Bank.

21. IMF. ‘International Financial Statistics (IFS)’, Washington, D.C.: International Monetary Fund, accessed October 2009. http://elibrary-data.imf.org/.

22. National Bureau of Statistics of the Republic of Moldova. ‘Consumer Price Indices’, accessed May 2012. http://www.statistica.md.

23. Dolartoday.com; US. Bureau of Labor Statistics, Consumer Price Index for All Urban Consumers: All Items [CPIAUCSL], retrieved from FRED, Federal Reserve Bank of St. Louis; https://fred.stlouisfed.org/series/CPIAUCSL, December 5, 2016; Johns-Hopkins-Cato Institute Troubled Currencies Project, https://www.cato.org/research/troubled-currencies.

24. Bernholz, P. (1996) ‘Currency Substitution during Hyperinflation in the Soviet Union 1922-1924’, Journal of European Economic History, 25 (2): 297-323.

25. IMF. ‘International Financial Statistics (IFS)’, Washington, D.C.: International Monetary Fund, accessed November 2011. http://elibrary-data.imf.org/.

26. World Bank. (1993) Statistical Handbook: States of the Former USSR, Washington, D.C.: World Bank.

27. Wang, J.Y. (1999) ‘The Georgian Hyperinflation and Stabilization’, working paper, International Monetary Fund, May, 99/65.

28. IMF. ‘International Financial Statistics (IFS)’, Washington, D.C.: International Monetary Fund, accessed October 2009. http://elibrary-data.imf.org/.

29. IMF. ‘International Financial Statistics (IFS)’, Washington, D.C.: International Monetary Fund, accessed October 2009. http://elibrary-data.imf.org/.

30. World Bank. (1994) Statistical Handbook: States of the Former USSR, Washington, D.C.: World Bank.

31. World Bank. (1994) Statistical Handbook: States of the Former USSR, Washington, D.C.: World Bank.

32. World Bank. (1994) Statistical Handbook: States of the Former USSR, Washington, D.C.: World Bank.

33. Sargent, T.J. (1981) ‘The Ends of Four Big Inflations’, working paper, Federal Reserve Bank of Minneapolis, 158.

34. IMF. ‘International Financial Statistics (IFS)’, Washington, D.C.: International Monetary Fund, accessed October 2009. http://elibrary-data.imf.org/.

35. World Bank. (1993) Statistical Handbook: States of the Former USSR, Washington, D.C.: World Bank.

36. IMF. ‘International Financial Statistics (IFS)’, Washington, D.C.: International Monetary Fund, accessed April 2012. http://elibrary-data.imf.org/.

37. IMF. ‘International Financial Statistics (IFS)’, Washington, D.C.: International Monetary Fund, accessed October 2009. http://elibrary-data.imf.org/.

38. IMF. ‘International Financial Statistics (IFS)’, Washington, D.C.: International Monetary Fund, accessed November 2009. http://elibrary-data.imf.org/.

39. Liu, F.C. (1970) Essays on Monetary Development in Taiwan, Taipei, Taiwan: China Committee for Publication Aid and Prize Awards.

40. Sargent, T.J. (1981) ‘The Ends of Four Big Inflations’, working paper, Federal Reserve Bank of Minneapolis, 158.

41. IMF. (1973-1974) ‘International Financial Statistics (IFS’), Washington, D.C.: International Monetary Fund.

42. World Bank. (1993) Statistical Handbook: States of the Former USSR, Washington, D.C.: World Bank.

43. IMF. ‘International Financial Statistics (IFS)’, Washington, D.C.: International Monetary Fund, accessed November 2009. http://elibrary-data.imf.org/.

44. IMF. ‘International Financial Statistics (IFS)’, Washington, D.C.: International Monetary Fund, accessed October 2009. http://elibrary-data.imf.org/.

45. IMF. ‘International Financial Statistics (IFS)’, Washington, D.C.: International Monetary Fund, accessed November 2011. http://elibrary-data.imf.org/.

46. IMF. ‘International Financial Statistics (IFS)’, Washington, D.C.: International Monetary Fund, accessed October 2009. http://elibrary-data.imf.org/.

47. World Bank. (1996) Statistical Handbook: States of the Former USSR, Washington, D.C.: World Bank.

48. IMF. ‘International Financial Statistics (IFS)’, Washington, D.C.: International Monetary Fund, accessed October 2009. http://elibrary-data.imf.org/.

49. Central Statistical Bureau of Latvia. ‘Consumer Price Indices’, accessed May 2012. http://data.csb.gov.lv/.

50. World Bank. (1996) Statistical Handbook: States of the Former USSR, Washington, D.C.: World Bank.

51. a) Hartendorp, A. (1958) History of Industry and Trade of the Philippines, Manila: American Chamber of Commerce on the Philippines, Inc.

b) Sicat, G. (2003) ‘The Philippine Economy During the Japanese Occupation, 1941-1945’, discussion paper, University of the Philippines School of Economics, 0307, November.

52. IMF. (1990-1992) ‘International Financial Statistics (IFS)’, Washington, D.C.: International Monetary Fund.

53. Sargent, T. J. (1986) Rational Expectations and Inflation, New York: Harper & Row.

54. IMF. ‘International Financial Statistics (IFS)’, Washington, D.C.: International Monetary Fund, accessed October 2009. http://elibrary-data.imf.org/.

55. Lithuania Department of Statistics. ‘Consumer Price Index (CPI) and Price Changes’, accessed May 2012. http://www.stat.gov.lt.

56. IMF. ‘International Financial Statistics (IFS)’, Washington, D.C.: International Monetary Fund, accessed November 2011. http://elibrary-data.imf.org/.

57. Liu, F.C. (1970) Essays on Monetary Development in Taiwan, Taipei, Taiwan: China Committee for Publication Aid and Prize Awards.

 

There are probably a wide range of reasons to object to Senator Jeff Sessions as President-elect Trump’s choice for Attorney-General. I’ll leave it to others to explain the concerns with Sessions in that role, but there is an issue with his understanding of trade agreements that I think is worth highlighting. Sessions has been repeating an objection to the Trans Pacific Partnership (TPP) that completely misunderstands the text of that agreement, and it is worth correcting the record.

The issue relates to the governance of the TPP. Sessions believes there will be a TPP Commission that acts as a supra-national governing entity and can override domestic laws. Here’s something he said last year: 

Among the TPP’s endless pages are rules for labor, environment, immigration and every aspect of global commerce – and a new international regulatory structure to promulgate, implement, and enforce these rules.  This new structure is known as the Trans-Pacific Partnership Commission – a Pacific Union – which meets, appoints unelected bureaucrats, adopts rules, and changes the agreement after adoption.

The text of the TPP confirms our fears, plainly asserting: ‘The Parties hereby establish a Trans-Pacific Partnership Commission which shall meet at the level of Ministers or senior officials, as mutually determined by the Parties,’ and that ‘the Commission shall’:

  • ‘consider any matter relating to the implementation or operation of this Agreement’;
  • ‘consider any proposal to amend or modify this Agreement’;
  • ‘supervise the work of all committees and working groups established under this Agreement’;
  • ‘merge or dissolve any subsidiary bodies established under this Agreement in order to improve the functioning of this Agreement’;
  • ‘seek the advice of non-governmental persons or groups on any matter falling within the Commission’s functions’; and
  • ‘take such other action as the Parties may agree’.

Further, the text explains that ‘the Commission shall take into account’:

  • ‘the work of all committees, working groups and any other subsidiary bodies established under this Agreement’;
  • ‘relevant developments in international fora’; and
  • ‘input from non-governmental persons or groups of the Parties’.

This global governance authority is open-ended: ‘The Commission and any subsidiary body established under this Agreement may establish rules of procedures for the conduct of its work.’  It covers everything from the movement of foreign nationals: ‘No Party shall adopt or maintain…measures that impose limitations on the total number of natural persons that may be employed in a particular service sector… in the form of numerical quotas or the requirement of an economic needs test’; to climate regulation: ‘The Parties acknowledge that transition to a low emissions economy requires collective action.’

These 5,554 pages are like the Lilliputians binding down Gulliver.  They will enmesh our great country, and economy, in a global commission where bureaucrats from Brunei have the same vote as the United States.

At bottom, this is not a mere trade agreement.  It bears the hallmarks of a nascent European Union. … 

In August of this year, he said something similar:  

The TPP permanently alters the landscape. The 5,554-page accord, disguised as a simple trade agreement, commits the American people to an international commission with the power to act around Congress. It allows 12 nations, some with less than 1 percent of the GDP of the United States, an equal vote in the TPP Commission. Actions by this commission separate the American people from the policy decisions that affect their lives. The TPP Commission is a direct threat to representative democracy and accountability. 

The reality is very different. To be clear, there is in fact something called a TPP Commission, established in Chapter 27 of the agreement, which is titled Administrative and Institutional Provisions. Article 27.1 says: “The Parties hereby establish a Trans-Pacific Partnership Commission (Commission), composed of government representatives of each Party at the level of Ministers or senior officials. Each Party shall be responsible for the composition of its delegation.” And it does have the tasks he mentions, as set out in Article 27.2.

But if you just read down one more provision, to Article 27.3, you can see why this Commission is no threat to anyone’s sovereignty or democracy:

Article 27.3: Decision-Making

1. The Commission and all subsidiary bodies established under this Agreement shall take all decisions by consensus, except as otherwise provided in this Agreement, or as otherwise decided by the Parties.2  Except as otherwise provided in this Agreement, the Commission or any subsidiary body shall be deemed to have taken a decision by consensus if no Party present at any meeting when a decision is taken objects to the proposed decision.

——————–

FN. 2 For greater certainty, any such decision on alternative decision-making by the Parties shall itself be taken by consensus.

2. For the purposes of Article 27.2.2(f) (Functions of the Commission), a decision of the Commission shall be taken by agreement of all Parties. A decision shall be deemed to be reached if a Party which does not indicate agreement when the Commission considers the issue does not object in writing to the interpretation considered by the Commission within five days of that consideration. 

Basically, this provision says that all decisions of the Commission have to be by consensus of all the governments who are parties to the TPP, one of which is the United States. In other words, no decision can be made unless the U.S. government agrees to it. And while the provision mentions that the parties can decide to take decisions in a manner other than consensus, note that footnote 2 says that the decision to do so must itself be taken by consensus, so the U.S. would have a veto here as well. (There is also a clause that says “except as otherwise provided in this Agreement,” but that applies to a very limited number of situations, such as the special decision-making procedures for accession of new countries to the agreement.) 

Furthermore, when it comes to the only provision that envisions the Commission actually modifying the TPP, Article 27.2.2(c), the provision requires both consensus among parties and the “completion of any necessary legal procedures by each Party.” In the United States, this would mean implementation of the relevant TPP modification pursuant to the TPP Implementation Act passed by the U.S. Congress or new congressional legislation. This provision thus underscores the Commission’s—and the TPP’s more broadly—deference to the sovereignty of each TPP party, including the United States.

What this all means is that there will be no “Pacific Union,” no “nascent European Union,” and no “unelected bureaucrats” adopting rules and changing the agreement after it has been concluded. 

And just to be clear, this Commission is not some nefarious innovation created by the Obama administration as part of the TPP negotiations. Rather, similar bodies have been part of U.S. free trade agreements for a long time. (Examples from Bush-era trade agreements are here and here.) Practically speaking, based on how the same thing works in other trade agreements, what the Commission means is this: if the TPP comes into force, the governments would meet occassionally and talk about how the agreement is working. They will offer diplomatic statements, express concerns, and have long discussions. Every now and then they will actually have to make a decision. But again, unless all the governments—including the U.S.—agree, no decision will be made. 

There may be other reasons Sessions opposes free trade or trade agreements, but we should not let the real debate get thrown off course by misconceptions about how these agreements operate.

Sixty-five percent (65%) of Americans believe police regularly “stop motorists and pedestrians of certain racial or ethnic backgrounds because the officer believes that these groups are more likely than others to commit certain types of crimes.” However, 63% of Americans oppose police using racial profiling for traffic and pedestrian stops, according to a new Cato Institute/YouGov national survey of 2,000 Americans.

Find the full public opinion report here.

An overwhelming majority of African Americans (81%) believe the police regularly racially profile, as do a majority of Hispanics (70%) and Caucasians (62%). Democrats (80%) are considerably more likely than Republicans (53%) and independents (61%) to believe the police engage in racial profiling. Only respondents identified as ideologically conservative, according to our ideological typology, reach a majority (54%) who believe racial profiling does not commonly occur. In contrast, majorities of Liberals (87%), Communitarians (67%), and Libertarians (63%) think police routinely racially profile.

Most Americans Solidly Oppose Racial Profiling, but Slim Majority of Republicans Favor

Two-thirds (63%) of Americans oppose police officers “stopping motorists or pedestrians of certain racial or ethnic groups because the officer believes that these groups are more likely than others to commit certain types of crimes.” This percentage includes 34% who “strongly oppose” and 29% who “somewhat oppose” this practice. The remaining third (37%) support racial profiling, including 10% who “strongly support” and 26% who “somewhat support” it. 

Partisans see profiling differently. A slim majority (51%) of Republicans support racial profiling while nearly as many (49%) oppose. However, Black Republicans differ from their fellow partisans: 65% oppose racial profiling and 35% support it.[1] Hispanic Republicans also oppose by a margin of 57% to 43%. A strong majority (73%) of Democrats and independents (64%) oppose it while roughly 3 in 10 support its use.

Conservatives Support Racial Profiling While Libertarians Strongly Oppose

A majority (60%) of Conservative respondents (identified according to our ideological typology) support racial profiling. In stark contrast, Libertarian respondents solidly oppose (71%) racial profiling, as do a majority of Communitarians (68%), Moderates (61%), and Liberals (87%).

 

African Americans are the most opposed to racial profiling (77%), although majorities of both Latinos (62%) and whites (62%) also oppose. Black Americans are also nearly twice as likely to “strongly oppose” (56%) profiling as Latinos and whites (31%). Latinos and Caucasians are not significantly different in their support for racial profiling.

Opposition to racial profiling is near universal across other demographic groups with strong majorities of men (61%), women (65%), evangelicals (60%), urban residents (65%), suburban residents (62%), high school grads (61%), college grads (64%), households earning less than $30,000 (66%), and households earning above $60,000 (64%) all solidly opposed to racial profiling. Millennials (70%) are more opposed than seniors (54%), but still majorities of both oppose. Overall, conservative Republicans stand out as uniquely supportive of police using racial profiling when deciding whom to stop.

Are Americans being honest about their feelings when it comes to racial profiling? Social scientists have developed a unique test called the “list experiment” to measure attitudes on sensitive topics. We included a list experiment on our survey and split survey respondents into two groups. The first group was asked “If you were a police officer, how many of these five factors do you think would be relevant when deciding who to stop and search for criminal activity? You don’t need to identify which ones, just HOW MANY:”

  • Is acting strangely (fearful, agitated)
  • Is making quick and secretive movements
  • Is present in a high crime area
  • Is male
  • Is young

We offered the second group (the treatment group) the same list plus one addition item:

  • Is black

When we compare the average number of items selected in the first group (Mean: 3.87 number of items) to the average number of items selected in the second group: (Mean: 4.29 number of items), the difference is .42. This indicates that 42% of Americans think that race should be a factor when police decide whom to stop and search and 58% think it should not be a factor . This is remarkably similar to the 37% who supported racial profiling and 63% who opposed when asked directly. The list experiment method found that 53% of Republicans felt that race should be a factor when police decide who to stop, as did 40% of independents, and 34% of Democrats. These numbers are very similar when partisans were asked about racial profiling directly.

In sum, these results indicate that when Americans say they oppose racial profiling, they seem to mean it.

For public opinion analysis sign up here to receive Cato’s upcoming digest of Public Opinion Insights and public opinion studies.

The Cato Institute/YouGov national survey of 2000 adults was conducted June 6-22, 2016 using a sample drawn from YouGov’s online panel, which is designed to be representative of the US population. YouGov uses a method called sample matching, and restrictions are put in place to ensure that only the people selected and contacted by YouGov are allowed to participate. The margin of sampling error for all respondents is +/-3.19 percentage points. The full report can be found here,  toplines results can be found here, full methodological details can be found here.

[1] Data about support for racial profiling by race and partisanship come from the combined June 2016 and November 2015 national surveys (N=4000), which offer greater precision and smaller margins of error for subgroups. (Unweighted: Black Republicans=45.)

Seven years ago tonight John Stossel’s show debuted on Fox Business. This week he announced that the show will end next week.    Some years ago – I’m not sure whether he was still on ABC’s “20/20” then or had moved to Fox – I introduced John at a Cato event as “the most visible, most valuable libertarian in America.” That’s still an accurate assessment.   I first noticed John’s interest in freedom at the end of 1989 when he did a “20/20” piece on “The Positives of Deregulation,” reporting on the new and improved products and services that deregulation had delivered during the 1980s. I remember especially the afterword, when John sat at the anchor desk with Barbara Walters and Hugh Downs, and Downs said, “That was very interesting. It had never occurred to me that there was anything good about deregulation.” I thought to myself, “Really? I understand why some people favor regulation. You just thought deregulation was delivered by space aliens or Mr. Potter of Potterville?”   Then in 1994 John got to do his first hour-long special on ABC, “Are We Scaring Ourselves to Death?” I had the good fortune to attend a taping of a late-night followup where people with varying views watched the show and then discussed it with John. As the segments were shown, I could hear the gasps in the audience around me. Environmentalists and others had never seen a major network program question their claims. But on ABC and later on Fox, he went on doing hour-long investigations of such topics as “Freeloaders,” “Greed,” “Stupid in America,” “Whose Body Is It Anyway?” and “Is America Number 1?” (featuring Cato senior fellow Tom G. Palmer).   I was proud to appear on his shows many times, including this 2015 special on spontaneous order.    John Stossel isn’t retiring. Reportedly, he’ll continue appearing on Fox shows and will also work with Reason.tv and other libertarian organizations on video projects. Meanwhile, much of his work is made available to teachers and students by Stossel in the Classroom, and lots of his specials and regular shows can be found online.   From “The Positives on Deregulation” in 1989 through last night’s “Death by Socialism” and no doubt next Friday’s final show, John Stossel has been bringing a needed dose of reality – and a lot of libertarian scholars and activists – to network television.

Of all those whose predictions were dashed by this year’s presidential outcome (“Trump is headed toward a major loss” his Oct. 19 headline blared), few have been more exercised than the Washington Post’s E.J. Dionne (“white identity politics and male self-assertion triumphed” he railed the day after). Yesterday, in a piece titled “America will soon be ruled by a minority,” he joined the chorus now condemning the “undemocratic” Electoral College—in the name of the Founders, no less, the very men who created it. Ever the good progressive, he fails to appreciate the role states were meant to play in ordering our public affairs.

This round, of course, it’s the disparity between the Electoral College vote and the popular vote that animates Dionne: “For the next two and probably four years,” he writes, “a majority of Americans will be governed by politicians largely elected by a minority of us.”

The inherent illogic of our practices, and the fact that they have nothing to do with the founders’ intentions, is underscored by this contradiction: We are supposed to ignore the national popular vote but deeply respect Trump’s narrow 77,000 popular-vote advantage in the three states that will tip the electoral college his way. (original emphasis)

Having thus implied that the Founders intended us to be ruled by popular majorities, Dionne writes next, curiously, that the Constitution itself “makes no mention of popular votes because the framers never expected there to be any. They saw the electoral college as a deliberative body chosen by state legislatures.” Well, which is it? Did the Founders intend the president to be elected by national popular vote or by the Electoral College?

What the Constitution does say in relevant part is that “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.” (emphasis added) At the nation’s outset, to be sure, more state legislatures than not appointed electors; but early on that balance began shifting toward selection of electors by popular vote. Moreover, if Dionne’s touchstone is the “founders’ intentions,” what better evidence than in Hamilton’s Federalist 68, “The Mode of Electing the President”: “A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated [tasks].” (emphasis added)

So that tips the balance toward popular election of electors, by state, not nationally. And therein lies the genius of the Framers. They were no friends of direct democracy. Indeed, they feared undiluted majoritarian rule almost as much as royal rule. They put liberty first, with democracy as one, but only one, means toward securing it.

At the end of the day, however, it is those countermajoritarian provisions that most exercise Dionne. Thus, he goes next after the Senate, which “compounds the minority government problem,” and then after Article V’s amendment procedures, which enable small states, he says, to block electoral college reform.

In so arguing, Dionne stands in the long tradition of his progressive forebears who sought to reduce the role of the states, thereby to enhance centralized national power. Thus in 1913, at the height of the Progressive Era, they pushed through both the Sixteenth Amendment’s income tax, which vastly expanded federal power, and the Seventeenth Amendment’s direct election of Senators, which reduced the power of state legislatures.

The direct election of the president by a national popular vote would have similar effects by vastly increasing the power of a few large states—Democratic Party bastions, Dionne frankly admits—at the expense of the rest of the country. It would be one more step toward the direct democracy progressives have always sought, which the Founders meant to check, through federalism, in the name of individual liberty.

Imagine that you’re a small business owner getting ready to go into your busy season, when several protestors come onto your property and begin disrupting your workers. Ordinarily, you would call the police and have the trespassers removed so that you could continue with your operations. But in California, that’s not an option for some property owners.

Cedar Point Nursery—a strawberry farm near the Oregon border—didn’t have to imagine that scenario. In fall 2015, union protesters entered Cedar Point’s property at five o’clock in the morning, moving through trim sheds—where hundreds of employees were preparing strawberry plants during the final stage of the six-week harvesting season—with bullhorns, distracting and intimidating its workers.

This is where you would think you could appeal to the authorities to have unwanted visitors removed, but in 1975, California’s Agricultural Relations Board (ALRB) promulgated a regulation that promotes trespassing! This law—known as the “Access Regulation”—grants a right of access by union organizers to the premises of an agricultural employer for up to three hours a day and 120 days a year. In other words, California has granted an easement for unions to enter onto private property, extinguishing the owner’s right to exclude others.

The Fourth Amendment, however, protects private businesses (and everyone else) from such an invasion of their property rights. Indeed, the Fourth Amendment was drafted as a bulwark against the rampant government oppressions—invasions of people’s houses and businesses without a warrant—that existed before the Founding. The right to exclude was a fundamental aspect of the protection of property at common law, and has continued to be recognized as such throughout our nation’s history. Yet the Access Regulation essentially deputizes trespassers who, through their disruptive presence, are allowed to seize private property.

Cedar Point brought a civil rights suit against the ALRB and United Farm Workers, but the district court ignored the importance of property rights in determining whether the Fourth Amendment was implicated and upheld the law. Cato has now filed an amicus brief in the U.S. Court of Appeals for the Ninth Circuit, supporting Cedar Point and other property owners and asking that the district court be reversed.

California’s Access Regulation granted outsiders a gratuitous easement and extinguished the important right to exclude others, thus creating a classic seizure of property that violates the Fourth Amendment. 

President-elect Donald Trump says that he will cut wasteful spending and “drain the swamp” in Washington. The first thing he should target is business subsidies in the federal budget. Such “corporate welfare” spending attracts corruption like garbage dumps attract rats.

A Cato study estimated that there is $100 billion of corporate welfare in the budget. That spending harms the economy, but the incoming administration should be aware that such spending also spawns damaging scandals. That pattern goes all the way back to the 19th century. Federal subsidies for the first transcontinental railroad led to the Credit Mobilier scandal of the 1870s, which involved dozens of members of Congress.

More recently, corporate welfare has spawned these scandals: 

  • HUD Subsidies under Reagan. President Ronald Reagan’s Department of Housing and Urban Development overflowed with corruption in the 1980s under Secretary Sam Pierce. Pierce routinely dished out grants, loans, and other subsidies to friends, business associates, and Republican Party contributors.
  • Commerce Subsidies under Clinton. President Bill Clinton’s Commerce Secretary, Ron Brown, used business subsidies as a fund-raising tool for the Democratic Party in the 1990s. Corporate executives who played the game were given access to export promotion trips and federal export loans. In his investigations, U.S. District Judge Royce Lamberth determined that Commerce officials concealed and destroyed documents relating to the trade mission scandal, and he compared officials to “con artists.”
  • Enron Subsidies under Clinton and Bush. Enron Corporation lobbied federal officials to expand export subsidy programs, and it received billions of dollars in aid for its risky foreign schemes. During the Clinton and Bush administrations, high-level officials went to great lengths to aid Enron on an Indian power plant deal. Federal aid induced Enron to make misguided foreign investments, and the resulting losses helped cause the company’s implosion.
  • Green Subsidies under Obama. The Washington Post found that “Obama’s green-technology program was infused with politics at every level.” The $535 million loan guarantee for the failed Solyndra is a prime example. The Department of Energy approved the loan after pressure from the White House. A main Solyndra investor was a billionaire Obama fundraiser. The New York Times found that Solyndra “spent nearly $1.8 million on Washington lobbyists, employing six firms with ties to members of Congress and officials of the Obama White House.”

American businesses have a right to lobby the federal government. But Congress throws fuel onto the corruption fire by funding business subsidy programs. The Trump administration should work to eliminate corporate welfare, including green subsidies, export subsidies, and housing subsidies. Corporate welfare undermines honest governance, and one message of the election is that Americans are sick and tired of the resulting scandals. 

Ben Carson was nominated secretary of the Housing and Urban Development Department (HUD) on Monday and his appointment will be debated endlessly over the coming months, with critics quickly honing in on his lack of housing policy and government experience. No matter, though; the naysayers need not stop him from doing an excellent job as HUD’s top administrator. The job can be done well if the following ideas remain front and center.

High-cost housing is a product of government regulation

Carson would be wise to remind everyone that cities do have control over sky-high housing prices: in fact, if cities relax zoning and land use regulations and simplify developer approval processes they can decrease the cost of housing across the board, no exceptions. Zoning regulations are the real culprit in places like Manhattan, where research demonstrates that regulations price the poor, the young, and the unestablished out of high opportunity areas. Local regulation also hampers innovation in the housing market, just look at the sad demise of low-cost micro-housing in Seattle.

HUD is not the nation’s urban planner

We can be quite certain that Carson will move away from the social-engineering-of-cities model advanced under HUD Secretary Julian Castro. Specifically, Carson should dig his heels in on the Affirmatively Furthering Fair Housing rule promulgated last year, a rule that allows HUD to oversee where people live locally based on their race. Fortunately, Carson has voiced opposition to the rule, and President-Elect Trump agrees, so it seems that Carson may have the support that he needs to remind the agency that not every local municipality’s land use and zoning regulations are under HUD’s jurisdiction.

Cities are unique, so housing solutions should be, too

Carson should keep in mind that what works in one city is not likely to work in all of the other ones. Past HUD Secretaries, like Shaun Donovan, made the mistake of thinking about HUD policy as urban policy, and operated under the belief that the lessons of his native – and hyper-urban – New York City could be applied everywhere. A better idea is to remember that the diverse United States includes small towns, rural America, and suburbs where a cookie-cutter approach won’t be successful. HUD policies should reflect a high degree of latitude for cities so that local governments can sort out their problems on their own.

Social justice doesn’t mean preferential treatment

Likewise, Carson should eliminate small area fair market rents, a social engineering tack used to push low-income individuals to locate in wealthy neighborhoods. Housing policy should remain neutral toward where people decide to live. From a political angle, Carson would do well to remember that small area fair market rents are exactly the type of policy that treat low income individuals preferentially as compared with lower-middle income individuals, and therefore, the kind of policy that Trump voters resent most.

HUD money is taxpayer money

Speaking of which, Carson must remember that HUD money is simply taxpayer money. This isn’t difficult to understand in the abstract, but the practical implications for HUD policy are more challenging to grasp. Carson should work to eliminate rules that require local communities to comply with federal checkboxes in order to obtain agency block grants. Citizens are entitled to sharing the benefits of their own tax money, independent of whether state administrators fill out the forms on time.

HUD does not know better than individuals and private businesses

Although apparently tempting for both democrat and republican administrations, Carson should eschew policies that prioritize homeownership over renting, and vice-versa. Each of Clinton, Bush, and Obama administrations have promoted their personal housing predilections, in spite of the fact that history indicates that government does not know better than individuals what sort of homes they should live in, and housing policy should be neutral rather than preferential in that regard. Consider the housing market fallout of the financial crisis – a result of government policies that promoted the irrational belief that everyone should be a homeowner – a cautionary tale.

Housing technocrat or not, with these ideas in mind, Carson will be well on his way to success.

Angelo A. Paparelli contributed to this post. 

This week last year, Donald Trump proposed prohibiting all Muslim immigration to the United States. He altered the proposal this year to specify “suspending immigration from nations tied to Islamic terror.” He told CNN that this was actually intended as an expansion of the Muslim ban. Last week, he said, “People are pouring in from regions of the Middle East,” but that he would “stop that dead, cold flat.” He has also made clear that this would be one of the actions that he takes as president during his first day in office. This promise implies that he has the power to do so under current law, but that is not the case. It is illegal to discriminate against immigrants based on their national origin.  

Even while delegating to the president broad powers to exclude immigrants, Congress also expressly forbade banning immigrants based on their race or national origin. President Trump will almost certainly run into legal difficulties if he attempts to carry out his promise.

Text of the law bans discrimination based on national origin

At first blush, it would seem that the president can ban people based on their nationality or country of residence. The Supreme Court has granted Congress extensive leeway under the plenary power doctrine to limit immigration based on criteria—such as race or national origin—that would be considered unconstitutional in other contexts, and proponents of Trump’s plan claim that Congress authorized such bans by pointing to a provision of section 212(f) of the Immigration and Nationality Act (INA), the law that controls most U.S. immigration policies:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

This seems to hand unequivocal authority to the executive branch to determine who it may admit to the United States. However, another section of the law clearly bans discrimination against certain classes. Section 202(a)(1)(A) of the INA states that except in cases specified by Congress in section 101(a)(27):

…no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.

While section 212 grants the president a general power to exclude certain immigrants, section 202 limits this power. Note that this section does not prevent discrimination based on religious affiliation, political belief, or ideology, but Trump’s new policy would run afoul of at least one if not all three of those last three restrictions—nationality, place of birth, or place of residence—depending on how it was applied. “Place” of birth is actually a broader restriction than nationality, meaning that even if Trump’s ban applied to subnational or regional levels, it would still be illegal.

Section 202 does not protect all types of people who wish to come here from discrimination based on national origin. It is limited only to immigrants or so-called green card holders. Legally, immigrants are foreigners who enter on visas granting legal permanent residency in the United States as well as noncitizens whom the U.S. Citizenship and Immigration Services has adjusted their status to that of a permanent resident. The most common types of immigrants are immediate relatives of U.S. citizens—parents, spouses, and their minor children—who have no numerical limit. Other types include employees sponsored by U.S. businesses, adult children of U.S. citizens, their siblings, and immediate relatives of legal permanent residents. Refugees and asylees who have already entered the United States and held status for a year are eligible for immigrant visas, making discrimination against them at that stage also illegal.

Refugees outside of the United States, however, could still be excluded based on nationality before they enter as they do not enter on an immigrant visa. Obviously all nonimmigrants—guest workers, tourists, and other temporary visitors—could conceivably be subject to this discriminatory policy. It could also apply to those who are claiming asylum in the United States, but at the same time, the law prohibits deporting people who face a likelihood of persecution in their home country, which could leave such people in limbo.

Finally, because section 202 applies only to the issuance of the visa, it would not necessarily bar other types of discrimination, such as reporting or registration requirements. This type of discrimination was also upheld in a federal circuit court case involving Iranian nonimmigrant students in the United States who were required in 1979 to report to an immigration service office for interview and registration.

Section 202 also does not prohibit discrimination based on religious affiliation, but recently Trump has been adamant that his proposed ban would apply to countries rather than religions. “I’m looking now at territory. People were so upset when I used the word Muslim,” he told NBC. “I’m okay with that because I’m talking about territory instead of Muslim.” If he maintains this position, he will clearly be in violation of the law.

Trump’s plan is a more extreme overreach than anything President Obama tried

Proponents of the Trump plan could argue that section 202 does not directly state that its restriction applies to section 212. But reading section 202 as having no impact on section 212 would mean that section 202 was intended as no restriction at all—something that the president could waive at any time for any reason. By contrast, section 212 would not be rendered pointless if section 202 limits its authority. The president could still bar certain classes of aliens from the United States. He just could not do so based on race, gender, nationality, or place of birth or residence. This interpretation makes sense of both laws in a way in which both serve a purpose.

Any other reading would grant the president power to use his general section 212 authority even in situations in which Congress has said he cannot use it. In other words, it would write section 202 out of the law. To be sure, there is an interesting parallel here between the Trump plan and President Obama’s attempted executive action on immigration, which was criticized—including by the Cato Institute and by candidate Trump—as executive overreach.

President Obama proposed using his general authority in section 274A(g), which recognizes his authority to issue employment authorization to whomever he wants, to grant work permits to unauthorized aliens with U.S. citizen children.  Since it was first enacted in 1986, Congress had enacted provisions limiting the use of or requiring the use of executive power to authorize employment of certain individuals, but none of these provisions applied specifically to the class of noncitizens to whom he wanted to grant employment authorization. President Obama argued that he could use his general authority to issue work permits to anyone so long as the law did not specifically prohibit him from doing so.

Donald Trump’s plan by contrast is a much more extreme overreach. He would be forced to argue that not only could he use his general authority to ban immigrants in any way that he chooses, he could do so even in situations in which the law specifically prohibits him from doing so. This power grab is so much more far-reaching than President Obama’s that virtually any court will likely view it with great skepticism.

It is out of the question to claim that section 202 prohibits discrimination only in the issuance of the physical visa document that allows foreigners to request admission as an immigrant. Sections 201, 202, and 203 of the INA, which are entirely devoted to limiting the number of visas for immigrants, are discussing actual persons who can come and live permanently as a result of receiving a visa, not just about limiting the issuance of the physical documents allowing people to travel to a port of entry and request entry. If it were only referencing visa documents, the president could grant immigrant status to an uncapped number of people without issuing visas to them—which is clearly unjustified.

Legislative history supports a ban on discriminating by national origin

The historical background for the enactment of section 202 supports the interpretation that it was intended to bar all national origin discrimination against immigrants. During the late 19th and early 20th centuries, Congress passed several laws barring the immigration of immigrants based on where they were born or resided. In 1882, it banned “the coming of Chinese laborers to this country.” In 1917, it “excluded from admission” all “persons who are natives… of any country… on the Continent of Asia” from India and eastward—the so-called Asiatic Bar Zone—and in 1924, it implemented the national origins quota system, which skewed the quotas to the benefit of immigrants from Western Europe.

In 1952, Congress debated repealing this prejudicial system, but ultimately refused to do so. Instead, it passed a bill that contained only minor revisions. It was in this law that Congress introduced the section 212 authority to ban immigrants based on nationality. President Truman vetoed the bill, inveighing against it as a violation of the “great political doctrine of the Declaration Independence.” He specifically objected to “powers so sweeping” that they could be used to exclude or deport aliens based on such vague and potentially discriminatory grounds such as “public interest” (powers first included in a bill in 1950 that he had also vetoed). Congress overrode the veto and the legislation became the Immigration and Nationality Act of 1952.

All of this history is important because section 202 was enacted as part of the Immigration Act of 1965, which was intended as a repudiation of the discriminatory system of 1952. The very first paragraph in section 202 (quoted above) banned any attempt to resurrect the old prejudicial system. The rest of section 202 details the new per-country limits, which provide that each country receives an equal share of the annual limits. Senator Ted Kennedy, the congressional architect of the 1965 law, said that it was intended to “eliminate the national-origins system, which was conceived in a period of bigotry and reaffirmed in the McCarthy era.” In other words, the law was intended to repudiate the 1952 act and all that came before it. The Judiciary Committee Report on the bill stated in its first line: “The principal purpose of the bill, as amended, is to repeal the national origin quota provisions of the Immigration and Nationality Act.”

President Lyndon Johnson summed up the law best in his signing statement:

This bill says simply that from this day forth those wishing to immigrate to America shall be admitted on the basis of their skills and their close relationship to those already here. … The fairness of this standard is so self-evident that we may well wonder that it has not always been applied. Yet the fact is that for over four decades the immigration policy of the United States has been twisted and has been distorted by the harsh injustice of the national origins quota system.

Under that system the ability of new immigrants to come to America depended upon the country of their birth. Only 3 countries were allowed to supply 70 percent of all the immigrants. Families were kept apart because a husband or a wife or a child had been born in the wrong place. Men of needed skill and talent were denied entrance because they came from southern or eastern Europe or from one of the developing continents. This system violated the basic principle of American democracy—the principle that values and rewards each man on the basis of his merit as a man. Today, with my signature, this system is abolished.

In other words, the explicit intent of the 1965 law was to “abolish” the very kind of discrimination that Donald Trump is proposing to create by executive fiat. On section 202 in particular, Senator James Easterland, an opponent of the bill, commented:

the President said: ‘The principal reform called for is the elimination of the national origins quota system.’ … In an attempt to carry out the request of the President, we find that section 2 of the bill has amended section 202 of the Immigration and Nationality Act to provide as follows: (a) No person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of his race, sex, nationality, place of birth, or place of residence…

The goals could not have been clearer to anyone—opponent or proponent—and there is simply no way to slip national origin discrimination back into the 1965 act with section 212 of the 1952 act. Senator Bobby Kennedy stated forcefully on the floor of the Senate that he believed that the law would “eliminate from the statute books a form of discrimination totally alien to the spirit of the Constitution.” In the congressional debate over the bill, senators constantly argued that the bill would end, as Senator Jacob Javitas put it, “the basic discrimination” of the 1952 act. To claim that in 1965 Congress did not in fact eliminate the discrimination of the 1952 act but instead continued to allow it under section 212 of that very act flies in the face of not only the explicit text of the law, but pages upon pages of the congressional record.

Court precedent backs a ban on national origin discrimination

The D.C. circuit court of appeals has also found that the president cannot discriminate against immigrants based on nationality. The case involved whether certain asylum seekers could apply for immigrant visas at U.S. consulates outside of their country of origin. The Department of State created new rules making it more difficult to do so only for Vietnamese asylum seekers in Hong Kong, and the asylum seekers sued. The government did not even attempt to argue that section 212 would allow discrimination, but rather that they had changed the rules for reasons unrelated to nationality.

In Legal Assistance for Vietnamese Asylum Seekers v. Department of State, the D.C. circuit granted standing to a U.S. citizen who was attempting to sponsor his Vietnamese spouse in Hong Kong. The court found that discrimination had taken place under section 202. It stated that the policy drew “an explicit distinction between Vietnamese nationals and nationals of other countries.” It wrote:

Where Congress has unambiguously expressed its intent, we need go no further. Here, Congress has unambiguously directed that no nationality-based discrimination shall occur. There is no room for the Service’s interpretation proffered by the Department.

The court stated that the government’s “proffered statutory interpretation, leaving it fully possessed of all its constitutional power to make nationality-based distinctions, would render section 202(a) a virtual nullity.” The court also disregarded the administration’s argument that “it retains discretion under § 1152(a)(1) to discriminate on the basis of nationality so long as its policies are rationally related to U.S. foreign policy interests.” It stated:

Congress could hardly have chosen more explicit language. While we need not decide in the case before us whether the State Department could never justify an exception under the provision, such a justification, if possible at all, must be most compelling—perhaps a national emergency. We cannot rewrite a statutory provision which by its own terms provides no exceptions or qualifications simply on a preferred “rational basis.”…

The court also rejected the idea that the policy was not based on nationality because the administration was doing the same thing to Laotians detained in Thailand. The court also cited this passage from Haitian Refugee Center v. Civiletti, a district court case from Florida in 1980,that concluded:

In 1965, Congress abandoned the national quota system of immigration and added a provision prohibiting discrimination in the granting of visas on the basis of “race, sex, nationality, place of birth, or place of residence.” This provision manifested Congressional recognition that the maturing attitudes of our nation made discrimination on these bases improper.

Congress responded to the decision in the Vietnamese case by amending section 202 to state that the limit on discrimination should not apply to “procedures for the processing of immigrant visa applications or the locations where such applications will be processed.” When the Supreme Court remanded the case in light of this change, the appeals court reversed its earlier decision in 1997. Nonetheless, the amendment clearly shows that Congress did want this anti-discrimination provision to have some effect or it would have just deleted it entirely.

Past presidential actions do not support the legality of Trump’s policy

Proponents of the Trump plan can also point to specific cases in which presidents have used the authority in section 212 to ban certain classes of foreigners. But in almost all of the cases, these actions barred individuals based on their actions rather than their nationality. President George W. Bush, for example, barred the entry of participants in the Mugabe government in Zimbabwe, but not all Zimbabweans. President Obama has exercised the authority under section 212 several times, but has never imposed a ban against an entire nationality.  As a typical example, he prohibited the entry of anyone under a United Nations travel ban in 2011.

No president has ever banned all immigrants from a certain country without any exceptions, as Trump is proposing, and in only a couple of instances out of dozens have presidents exercised the authority in section 212 against a particular nationality at all.

In 1980, President Carter suspended issuances of visas to all Iranian citizens. From the text of his proclamation, it is unclear whether this applied to only nonimmigrant (temporary) visas—which would have been legal—or also to immigrant visas, but news reports imply that it applied only to temporary visitors. A Washington Post report from 1980 discussed the ban applying only to “students, tourists and businessmen”—the main categories of nonimmigrants—and multiple articles from the New York Times framed the issue as only impacting “foreign visitors.” Moreover, government statistics show that thousands of Iranians continued to receive immigrant visas in 1980.

Either way, President Carter only took this action because Iranian rebels seized control of the U.S. embassy and began using the U.S. visa machine to print fraudulent visas, making it impossible to determine who had a bona fide visa. It is also unclear if the ban applied to Iranian nationals whose visas were not issued in Iran. For these reasons, the Carter case is a poor parallel for Trump’s blanket ban.

In 1986, President Reagan suspended entry of all Cubans—immigrants and nonimmigrants—but this bar had a major exception for those who were immediate relatives of U.S. citizens, which is the main category of legal immigration. Cubans are also unlike other immigrants because Cuban immigration is partially governed under the Cuban Adjustment Act of 1966, which does in fact preference the issuance of visas to Cubans by granting visas to almost all Cubans who have been in the United States for a year. In any case, neither president’s actions were challenged in the courts, so their legality remains untested.

The breadth of the Trump plan is unprecedented

These past actions are particularly unconvincing when considering the breadth of the Trump plan. According to Trump, the immigration ban would apply to an entire region of the world. He has even refused to rule out banning immigration from France because “they have totally been” compromised by terrorism. CNN has estimated that a ban broad enough to include France would comprise at least 40 countries, but even the least broad restriction against immigration from countries with “terrorist safe havens” would eliminate all immigration from a dozen nations.

President Obama’s attempted executive actions on immigration were partially struck down in part due to their breadth. The courts conceded the president’s power to authorize immigrants to work and to suspend deportations, but not when it amounted to a wholesale abandonment of the law. This point is even much clearer in this case.

For almost a decade, Congress debated creating an immigration system free from discrimination by nationality, country of birth, or country of residence. President-elect Trump, however, now proposes to discriminate unlawfully against certain foreign nationals on the basis of the same protected grounds without any legislation from Congress.

An important part of Donald Trump’s health care agenda is his pledge to let consumers and employers avoid unwanted regulatory costs by purchasing insurance licensed by states other than their own, a change that would make health insurance both more affordable and more secure. The Congressional Budget Office has estimated that allowing employers to avoid these unwanted regulatory costs would reduce premiums an average of 13 percent. That’s a nice contrast to what Bill Clinton calls ObamaCare’s “crazy system where…people [who] are out there busting it, sometimes 60 hours a week, wind up with their premiums doubled and their coverage cut in half.”

A reporter recently wrote to me: “I’ve talked to many people – health policy experts, regulators, industry leaders – and none of them think it is a good idea. They worry that the policy would promote a race to the bottom, with insurers consolidating in states with the most lenient regulations. They say state regulators would lose their power to protect consumers. They argue that healthy people may save money by selecting cheaper plans, but sick people would end up paying more and/or have trouble accessing care.” Below is my response.

—–

What you have stumbled across is a grand conspiracy against consumers by industry, regulators, and left-wing ideologues.

The big, incumbent insurers like banning out-of-state purchases, because that protects them from competition.

Providers and patient groups like government mandates that force consumers to buy coverage for their products (mental health coverage, contraceptives coverage, acupuncture coverage, etc.). The freedom to purchase insurance licensed by other states would allow consumers to avoid those unwanted costs.

State insurance regulators like banning out-of-state purchases, because they are in the business of providing consumer protections, and the ban gives them a monopoly. Little wonder they produce what monopolies always produce: a high-cost, low-quality product.

The ideologues want to impose Gruber-style hidden taxes on consumers. The freedom to purchase insurance licensed by other states would allow consumers to avoid those hidden taxes.

It would be embarrassing if these groups said any of this explicitly, so they describe the prospect of losing their privilege as a “race to the bottom.”

Nonsense. There would be no race to the bottom. It would be a race to what consumers want: affordable, secure health coverage.

If letting people purchase insurance licensed by other states would lead to a vastly different health-insurance market than we have right now, it merely illustrates how far astray these groups have led us from the sort of health insurance consumers want.

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