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With Republicans retaining control of the House and Senate, President-elect Donald Trump might think it will be easy to push through his plans for “peace through strength” but he’s offered dubious rationales for why we need a much larger military. And his proposals for how he would pay for the additional spending are incomplete and inadequate.

He outlined his plans in a speech in early September. The high points include:

  • Active-duty Army: 540,000, up from 491,365 today, and currently projected to hit 450,000 in 2018, and stay there through 2020;
  • Marine Corps: 36 battalions, up from 23 now;
  • Navy: 350 surface ships and submarines, up from 276 today (the Navy’s current plans call for 308 ships by 2021, peaking at 313 in 2025);
  • Air Force: 1,200+ fighter aircraft; which is close to today’s inventory of 1,113;
  • A “State of the art missile defense system”; and
  • Major investments in cybertechnology, both offensive and defensive.

Estimates for what it would cost to implement these changes vary, but most experts doubt that Trump can make up the difference without raising taxes or adding to the deficit. His call for “common sense reforms that eliminate government waste and budget gimmicks,” is extremely vague, and it seems unlikely that Democrats will agree to relax the Budget Control Act caps on defense spending while leaving non-defense caps in place.

The bigger question is what Trump plans to do with this much-larger military. He is right to be skeptical of nation-building in foreign lands. He scorned Hillary Clinton’s support for the regime-change wars in Iraq and Libya. Those types of missions often require vast forces, especially ground troops, willing to remain in those countries for decades, or longer. But if he doubts that such missions are needed or wise, why does he call for increasing the active duty Army and Marine Corps? What does he expect them to be doing that they aren’t already?

Fighting terrorists doesn’t require a massive military, either. The hard part is finding terrorists, not killing them once found. Thus, the most effective operations against groups like al Qaeda involve timely intelligence, active cooperation with local actors, and occasionally the precise application of force.

ISIS is different, because it, unlike al Qaeda, chose to occupy territory that can be targeted by traditional military force. But if Trump follows through on his plans to “bomb the hell out of ISIS,” that doesn’t require massive U.S. ground forces either.

Lastly, Trump hasn’t adequately explained how he would ensure that the military spends the money that it has wisely and efficiently. In inflation-adjusted dollars, American taxpayers spend more on our military today than we did during most of the Cold War, and yet we appear to be spending more, and getting less. Increasing the military budget by 10 percent or more won’t make it easier to control rising costs; if anything, it will allow the Pentagon to forego difficult but necessary reforms.

I hope to hear more in the coming weeks about what President-elect Trump will do to rein in the Pentagon’s civilian work force, eliminate excess overhead, including unneeded bases, and modernize military compensation. Members of Congress have either failed to address, or actively blocked, reform proposals thus far. Time will tell whether having Trump in the White House will stiffen their spine.

Donald Trump has been touting staunchly protectionist and isolationist rhetoric on trade policy throughout his campaign. Whether this was merely campaign-talk is still to be seen.

However, at his core, Trump is a businessman. In the business world, isolationism is synonymous with self-destruction.

So when Trump brandishes protectionist rhetoric and sullies the role of international trade, he’s ignoring the fact that, in international relations, trade also serves as an expression of diplomatic goodwill and a means for constructive connectivity. Trade could also promote and advance free market principles abroad.

Take China, for instance. Beijing is embarking on a new era of “economic diplomacy”: trade and foreign investment have become the preferred tools for engaging with the international community, as well as for boosting domestic economic growth. China’s relatively new $1 trillion New Silk Road trade and investment initiative spanning several countries and continents attests to just that.

Instead of taking the opportunity to forge beneficial economic and trade ties with Beijing, Trump is instead threatening to impose high tariffs on China and declaring it a currency manipulator. However, doing so would actually isolate the United States’ economic interests rather than “protect” them, especially in the long run.

Trump will now have to quickly transition from a businessman into a statesman. In the business world, there is something to be said for taking a tough, zero-sum approach to negotiations. But in international relations, flippant threats and tough-talk—especially when it comes to the world’s second largest economy, as well as a nuclear power—is tantamount to recklessness, and likely to cause more harm than good.

Lastly, there are reasons to doubt whether Congress will comply with Trump’s trade and foreign policy stance. Members may instead insist that trade within a mutually beneficial arrangement, and not economic isolationism, will lead to more U.S. jobs and overall economic growth.

Donald Trump’s upset victory over Hillary Clinton last night is bound to stir up fears of instability and uncertainty in East Asia, a region that was almost entirely ignored during the campaign. Commentators have rushed to predict that Trump’s campaign rhetoric will turn into reality: the United States will pull back from East Asia, and China will take advantage of the ensuing chaos to seize geopolitical dominance of the region. This morning James Palmer at Foreign Policy writes, “Chinese leaders near me in the palatial complex of Zhongnanhai are surely cracking open the drinks.” This is a pretty scary vision of the future. However, such assessments, which focus solely on Chinese benefits, don’t take into account the complex nature of U.S.-China relations.

President Trump is by no means a clear victory for China. The uncertainty created by his victory could easily produce an economic and geopolitical climate that damages Chinese interests. For example, three of the seven points in Trump’s Plan to Rebuild the American Economy mention policies that would hurt the U.S.-China economic relationship: labeling China a currency manipulator; bringing trade cases against China in the World Trade Organization; and imposing tariffs in response to “illegal activities.” Igniting a trade war with China would pose a severe risk to China’s economy, which is already slowing down. Trump’s stated policies would likely deepen China’s economic woes, thereby increasing the domestic instability that Beijing is obsessed with avoiding, especially in the lead-up to the 19th Party Congress in late 2017.

In the realm of geopolitics, Chinese gains in the conventional balance of power resulting from a reduced U.S. commitment to traditional allies could be offset if other regional states turn to nuclear weapons. America’s regional partners have started to improve their conventional self-defense capabilities, but it will take a good deal of time and money to get their militaries to the point where they can resist Chinese coercion without U.S. help. With this in mind, and given the recent nuclear saber rattling by North Korea, if Trump starts shedding U.S. alliance commitments then partners may turn to nuclear weapons to defend themselves.

Japan would likely be the first country to develop a nuclear weapon in such a scenario. Its limited conventional capabilities create a pressing need for a deterrent if the United States would not come to its rescue, and its highly-developed nuclear energy program makes it relatively easy for Japan to acquire the materials it would need. It would still take a good amount of time for Japan to develop such weapons. For example, a 2006 article by Jeffrey Lewis at the Arms Control Wonk blog suggested a timeframe of 3–5 years. If Japan goes down this road, there is a chance that neighboring countries, such as South Korea, would also push for their own nuclear weapons. While Japan would face enormous resistance to nuclear weapons development, support for having nuclear weapons among lawmakers has increased in recent years in response to growing tension in East Asia. A nuclear-armed Japan is completely anathema to Chinese security interests, and would be a serious setback for China’s geopolitical position in East Asia.

While this analysis is almost purely speculative at this point, there is a case to be made that the Trump administration will not be as good for China as many commentators have suggested. China could reap some benefits from a United States occupied with domestic political turmoil and a president that disdains alliance commitments. However, the economic and geopolitical uncertainty that could be unleased by his victory should curb Beijing’s enthusiasm. As Isaac Stone Fish recently stated in Foreign Policy, “the Chinese elite seem to prefer Trump’s opponent because they feel she would be better … [for] global stability, which remains of great importance to Beijing.” The officials in Zhongnanhai should save those drinks for another day. 

Please excuse the haste, as I’ve spent the last week ignoring the “impossible,” focused instead on writing about the likely direction—including the copious double-talk and rhetorical pirouettes—of President Clinton’s trade policy. If you’re a sucker for transparency, congratulations! You’ll get that in spades from President Trump’s trade policy. It will be transparently awful—for a while, at least.

Having a Republican president and GOP control of both chambers of Congress was once the ideal formulation for successfully negotiating and ratifying trade agreements. That all changed when Donald Trump, an avowed critic of U.S. trade agreements, rose to the top of the party’s ticket. As of last night, there is no longer any realistic chance that the Trans-Pacific Partnership agreement will be ratified in the Lame Duck session of Congress; there is no chance that the TPP will be implemented over the next four years without the deal first being reopened and revised to reflect terms desired by President Trump; there is much greater scope for trade frictions, especially with China, to erupt into deleterious rounds of tit for tat protectionism; and there is the distinct risk that policies intended to punish U.S. companies for outsourcing will slow inward foreign direct investment (insourcing) and chase U.S. companies off-shore, altogether, depleting capital, driving up interest rates, and hamstringing prospects for growth.

But there is a silver lining, which is that the worldviews of presidents tend to be more outward, engaging, and accommodating than the worldviews of presidential candidates. After repeatedly pledging to force Canada and Mexico back to the table to renegotiate the North American Free Trade Agreement during his bid for the White House, President Obama phoned the Canadian prime minister and Mexican president within one week of his 2009 inauguration to reassure them that he had had a change of heart. 

President-elect Trump’s hardline, isolationist, nationalistic, protectionist proposals may be more difficult to walk back, especially if he fails to excommunicate some of his current advisors and branch out to obtain the counsel of economists and policy specialists who have a better understanding of international economics and the rules of global trade. If he is able to expand and diversify the pool of people advising him, there is a reasonable chance that President Trump’s actions will be less bellicose than his rhetoric has been. After all, as someone who wants to make America “great again,” President-elect Trump will want the policies implemented by his administration to help grow the economy. Trade agreements have succeeded in that regard and, in addition to the TPP, there are plenty of countries and regions willing to partner, including the European Union and the United Kingdom (separately), and plenty of alternative negotiating platforms for accomplishing trade and investment liberalization. 

In the short term, if President-elect Trump wants to encourage U.S. manufacturing to produce and hire more, he should ask Congress to eliminate tariffs on all imported intermediate goods – components and raw materials that go into U.S. production. That would immediately reduce U.S. manufacturing costs, which would give the sector a leg up in its competition for U.S. and foreign investment.

Trump might quickly grasp that removing tariffs—rather than imposing them—is the kind of protectionism we can afford.

Donald Trump’s signature policy issue during his campaign was forcing unauthorized immigrants out of the United States. But it would be a mistake for Republicans in Congress to fund any effort to make this dream a reality during his administration. Trump won the presidency, but he failed to convince anyone, including Republicans, on the issue that he spent the most time promoting, and history still shows that an anti-immigration agenda could become incredibly damaging to the GOP’s electoral prospects long-term.

Here are six reasons why congressional Republicans shouldn’t confuse a Hillary Clinton loss with a mandate to target immigrants.

1. The vast majority of voters still want to let the immigrants stay. A supermajority of Americans favors legalizing immigrants who are in the country illegally, according to exit polls from CNN (70%), Fox News (70%), the New York Times (70%), ABC News (71%), CBS News (70%), and the Wall Street Journal (71%). In fact, even more Trump voters favored legalization than favored deportation. This jives with Pew Research Center’s most recent poll that found that fully two-thirds of Republicans favored legal status for unauthorized immigrants. As the figure below shows, Trump failed to persuade Americans during his campaign despite making it his number one talking point. It would be foolish for the GOP to think that this will suddenly change.

Figure: Should undocumented immigrants be allowed to stay in the United States?

Sources: Pew (October 2014–March 2015); Wall Street Journal (November 2016)

2. GOP senators in close races who favored legalization performed better than Trump in their states. Trump’s immigration position did little, if anything, to advance his cause in the swing states. All of the incumbent Republicans who supported legalization in tight Senate races—Senators John McCain (AZ), Marco Rubio (FL), Mark Kirk (IL), Kelly Ayotte (NH), Rob Portman (OH), and Ron Johnson (WI)–outperformed Trump in their states. Sens. Richard Burr (NC) and Pat Toomey (PA) who tried their best to avoid discussing the subject while not supporting Trump’s deportation position netted the same share of the vote as Trump. Sen. Roy Blunt disavowed a path to legal status and did worse than Trump in Missouri.

3. Many Republicans in the House and Senate don’t agree with Trump. Well over a hundred GOP senators and congressmen have publicly backed legal status for unauthorized immigrants in the United States (here are some). Trump will need to lead a party that includes these members. Party leaders in Congress would be unwise to abandon such members now that they have helped the GOP achieve a majority. Ironically, the fact that Hillary Clinton did so poorly, with low voter turnout hurting Democrats in competitive races, actually helped to maintain this moderate wing of the Republican Party. The GOP would likely be in a worse position to support real immigration reform if the election had been a Democratic blowout.

4. California Republicans won on nativism in the 1990s—and it cost them everything. The Republicans made blaming unauthorized immigrants for crime and government deficits a major part of their campaign in 1994. Governor Pete Wilson championed a ballot measure, Prop. 187, intended to expel the state’s undocumented immigrants. The measure actually had the support of a majority of voters, but as my colleague Alex Nowrasteh has meticulously documented, the campaign turned California permanently blue. Wilson had an electoral mandate in 1994, and the Republicans still lost the state for a generation. Trump has no such mandate today.

5. Trump won a single election, but deportations could lose a generation of voters. One reason why misinterpreting Trump’s victory could be devastating for the GOP in the long-term is that barely any young people agree with him. Only 17 percent of Americans under 30 agree that unauthorized immigrants “should not be allowed to stay,” according to the latest survey from the Pew Research Center, and only 37 percent of these voters backed Trump. Republicans will still need a pro-immigrant strategy to address this issue.

6. Trump is the most unpopular president-elect ever. It is impossible to overstate the importance of this point. Americans have never elected a person that they find so disagreeable. Fully 61 percent of voters said yesterday that they had an unfavorable view of Trump. It makes little sense for Republicans to try to help the new president build goodwill by doing something that the vast majority of Americans do not want.

These political calculations all stand in addition to the multitude of economic and moral reasons to oppose removing from the country people who have built their lives in the United States.

Marijuana legalization keeps rolling. The legalization of recreational marijuana was on the ballot in five states yesterday. The people of California, Massachusetts, and Nevada voted to legalize.  As of this writing, legalization maintains a slim, too-close-to-call lead in Maine as well. Legalization failed in Arizona by a small margin.

Beyond legalizing marijuana in America’s most populous state, the vote in California also means the entire West Coast has now rejected marijuana prohibition. The vote in Massachusetts makes it the first state east of the Rocky Mountains to do the same.

In addition, medical marijuana was legalized in Arkansas, Florida, and North Dakota, while restrictions on medical marijuana were relaxed in Montana.  In Oklahoma, which prides itself on being “the reddest state in the nation” (Donald Trump won every single county last night), voters passed an amendment to state law that recategorizes a variety of drug offenses from felonies to misdemeanors.

All of these developments speak to a growing (and increasingly bipartisan) acknowledgment that Americans are tired of the failed drug war, and especially the government’s crusade against marijuana. More people are arrested for marijuana offenses than for all violent crimes combined in this country, and voters increasingly think it’s time to put a stop to it.

As my colleague Jeff Miron points out, marijuana prohibition is predicated on myths. The allegations that marijuana legalization leads to huge increases in use; causes increases in crime, traffic fatalities, and addiction; and leads to abuse of other, harder drugs simply do not comport with the data we’ve seen from legalization policies in the U.S. and around the world.

Despite this building momentum for reform, last night also injected a bit of uncertainty into the prohibition discussion. Marijuana remains illegal under federal law. The Supreme Court has already ruled that federal marijuana prohibition is constitutional, state-level legalization notwithstanding (although Congress has put temporary limits on federal funding for that purpose). As a result, the progress we’ve seen thus far has depended on President Obama’s commitment to respect the will of the states when it comes to marijuana enforcement. Essentially, President Obama has refused to enforce federal marijuana laws when those laws conflict with legalization bills passed by state voters.

President-elect Trump is not required to continue that commitment. He, along with his pick for Attorney General, could decide to begin enforcing federal marijuana laws in states that have voted to legalize (provided Congress provides funding), in which case the successful experiments in legalization would end virtually overnight. The more states legalize marijuana, however, the less likely it seems that the federal government will try to force the cat back into the bag.  

President-elect Trump should let the state experiments play out, and respect the will of the American voters who increasingly reject the failed policy of prohibition.

During the Republican primary season, most candidates railed against the Iranian nuclear deal promising to rip it up. Indeed, Donald Trump, our new President-elect, described the Joint Comprehensive Plan of Action (the JCPoA) as “one of the worst deals I’ve ever seen.” With Trump’s unexpected success in yesterday’s election, the future of the Iran deal—one of the major diplomatic successes of Barack Obama’s presidency—has become murky.

Over the last year, Trump’s campaign was impressively inconsistent on the question of the Iran deal. Various Trump surrogates—including Rudy Giuliani in his speech at the Republican National Convention—suggested that Trump would “rip up” the deal on day one in office. Trump himself strongly criticized the deal, promising in a speech to AIPAC in March that dismantling the deal would be his number one priority. Yet later statements focused instead on the idea that he would “fix” the deal, by going back to the negotiating table with Tehran, a line later adopted by many of his campaign advisors.

Unfortunately, though this might indicate that Trump’s stance was more rhetoric than reality, he is likely to face strong pressure from the GOP-dominated congress to upend the deal. The pressure is liable to come from inside his administration too: not only did Mike Pence, Trump’s VP pick, take a hard line on the Iran deal in debates, but several of Trump’s potential advisors have similarly argued that the deal should be destroyed. It’s hard to imagine an administration featuring Bob Corker, John Bolton or Michael Flynn taking a conciliatory approach to Iran on any issue.

So can Trump actually end the Iran deal? Perhaps more effectively than many have assumed, though it would be politically and diplomatically costly. In order to end the deal, the United States would have to assert to the UN Security Council that Iran is violating the agreement. Though such a violation would technically be confirmed by an external party like the IAEA, the fact is that the “snapback” provision of sanctions relief found in the JCPoA allows the United States to exercise its veto power, forcing the reintroduction of UN sanctions.

The United States cannot force the European Union to reintroduce all its sanctions, which include some of the harshest measures on Iran’s oil and banking sectors. Nor can it apply sanctions retroactively; any deals made by companies during the last six months—like the Total oil and gas deal—are grandfathered in. But if he wanted to, President Trump could issue executive orders reinstating or creating new sanctions on Iranian individuals or companies. He could also direct the Treasury to apply those sanctions extraterritorially, preventing European or Asian companies which do business with Tehran from accessing the U.S. financial system.

Yet the choice to end the Iranian nuclear deal would be extremely costly for the United States. It would alienate key allies in Europe and elsewhere, discouraging them from participation in future U.S. diplomatic endeavors. A better deal is pretty much impossible to achieve, thus we would substantially increase the likelihood that Iran will return to nuclear development, bringing them closer to the bomb, and the United States closer to military conflict. And it would be a black eye for the United States, implying that we cannot be trusted to abide by international agreements which we negotiate.

It’s certainly possible for President-elect Trump to dismantle the JCPoA. But as with all questions about Trump’s foreign policy, it remains unclear whether he will choose to do so or not. If he does, the repercussions for U.S. foreign policy would be unpleasant. Tearing up the Iran deal may look good to the Republican base, but it’s the diplomatic equivalent of shooting ourselves in the foot: it achieves no foreign policy goals, runs the risk of destabilizing the Middle East still further, and does grave harm to America’s diplomatic reputation.

Even if one had the stomach for more prognostication after last night, when it comes to Trump foreign policy looking ahead seems like a fool’s errand (see my last op-ed if you don’t believe me). As Max Fisher notes in the New York Times today, Donald Trump has been so inconsistent on foreign policy specifics that no one feels confident in making bold predictions. Uncertainty, at home and abroad, rules the day.

However, even though the election can’t tell us much about what might happen in the future, Trump’s victory does reveal a great deal about how Americans think about politics in general and foreign policy in particular.

One thing we have learned is that the divide in Americans’ foreign policy views now mirrors the broader political fault lines in the nation. As I wrote after the final presidential debate, in the absence of a compelling external threat, Americans have become more polarized as the “national interest” has devolved into an array of competing interests. The foreign policy debate is no longer about how to keep America safe; it’s a clash over competing conceptions of America and its role in the world.

In one corner are the previous champions, the liberal internationalists, who enjoyed a long, bipartisan run after the end of the Cold War. The liberal internationalists have seen globalization as a boon for the U.S. and the world. In this vein they have pursued free trade, an expansive network of alliances, and meddled a great deal in the affairs of other nations for a wide range of often dubious but usually well-intentioned reasons. In the other corner we have Trump’s surging nativists and nationalists—much more pessimistic about the benefits of globalization, much less supportive of free trade, far less interested in engaging the world, and far more concerned about what immigration might do to the United States.

Trump’s election last night might have been a shock, but the growing divide on foreign policy has been clear for some time. A great deal of polling data from the past several years has revealed that the public has lost much of its appetite for the liberal internationalist cause. Recent polling has discovered that record numbers of Americans think the United States should “mind its own business” internationally and fully 70% of Americans want the next president to focus on domestic policy.  When you add to that the widespread concerns about Obama’s trade deals and U.S. policies in the Middle East, it becomes clear that much of the nation is ready to rethink the Beltway Consensus on foreign policy.

The implications of this emerging foreign policy tribalism are profound. Without existential national security concerns to ground the debate, foreign policy has become just another arena for cultural and identity politics. Trump’s foreign policy, whatever it turns out to be, will not be constrained by broad-based public and elite support for a single strategic vision. Instead, Trump is free to pursue foreign policies that please his base.

Though I won’t dare to make predictions about which issues Trump will take up in earnest next year, a quick comparison of his supporters to Democrats on key issues is potentially revealing. 80% of Trump’s supporters see immigrants and refugees as a critical threat, for example, compared to just 27% of Democrats. 92% of Trump’s supporters support his proposal for a wall on the Mexican border while just 29% of Democrats do. Whereas 68% of Democrats believe international trade is good for the U.S. economy, just 42% of Trump supporters do.

I will boldly end with one prediction: Regardless of which way Trump goes on foreign policy, the divisions revealed during this campaign will not go away any time soon.

It happened.

Don’t worry, our country is strong enough to deal with what might be coming. Unfortunately, however, our Constitution has some holes in it, many of which were created by the last two administrations, that allow presidents to assert shockingly broad powers. We will gladly welcome back to the fold our left-wing friends who have spent eight years cheering for executive power. They resisted executive power during the Bush administration, and it should be like riding a bike. We hope we will be joined by principled people on the right who understand the need for constitutional limits. Maybe, in the process, we can create a new consensus around limiting executive power.

Constitutionally limited government exists to protect the freedom of the citizens from the vicissitudes of democratic rule. The Framers of the Constitution knew that a person of George Washington’s caliber would not always be chosen president. They knew about demagoguery and populism. James Madison, in particular, was terrified of how voters in states could be swept up in waves of populist fury and, in the process, enact policies damaging to the long-term prosperity and freedom of the people.

Unfortunately, after a century or more of erosion, our Constitution doesn’t limit our government the way it once did. In particular, the president is incredibly powerful, and able to make significant decisions without proper checks and balances. Democrats wanted this power when President Obama was in office, but the powers of the executive, especially after President Obama, are now truly concerning when held by someone as unpredictable as Donald J. Trump.

Here’s a basic principle of good government: Don’t endorse a government power that you wouldn’t want wielded by your worst political enemy. Democrats will soon be learning that painful lesson.

Obama’s most concerning legacy was to use congressional inaction as a justification for sweeping executive orders. In the DACA and DAPA immigration cases, the president decided that, if Congress didn’t do something about immigration, then he would. This is a shocking argument for asserting unilateral power in a constitutional system that depends on checks and balances, and it should not matter whether you agree with the policy outcome. Nevertheless, Democrats, by and large, endorsed Obama’s action.

Obama also used congressional inaction as a justification for claiming the power to decide whether the Senate was in session. After his nominees to the NLRB and CFPB were blocked by the Senate, President Obama used his recess appointment power—which gives the president the ability to appoint executive officers during Senate recesses—to push his nominees through. In so doing, he essentially declared that the Senate’s pro forma sessions, which were sham sessions first used by Harry Reid to block President George W. Bush’s nominees, were not “real” sessions of the Senate. It was a bold, reckless, unprecedented, and dangerous move that was struck down unanimously by the Supreme Court. On many types of executive overreaches, however, the Court will not be able to similarly intervene. If Obama had the temerity to push through those appointments, imagine how far Trump might go on other matters.  

Finally, the Congress hasn’t declared a war since World War II. Korea, Vietnam, First Iraq, Second Iraq, and Afghanistan were all fought without obtaining the constitutionally required declaration of war from Congress. We currently have the Authorization of the Use of Military Force, signed a week after the September 11th attacks and subsequently used by two presidents to fight “terrorists” wherever they wanted. President Trump will have that power too, which should concern anyone.

Like nearly every president, President Obama defined a new baseline of executive power. Now that power will be handed over to Donald Trump, and left-wing groups like our friends at the Constitutional Accountability Center will probably be on our side when Cato inevitably files briefs opposing Trump’s forthcoming executive overreaches. I’ll try to restrain myself from saying, “I told you so.”

If you work in education policy, you maybe should have seen Donald Trump’s monumental upset coming. I didn’t, and I would guess most other wonks didn’t either. But we all saw populist frustration boil over with the federally coerced Common Core national curriculum standards. Average Americans rejected the Core over the paternalistic, “you just don’t realize this is good for you” objections of establishment types on both the left and right, just as seemed to happen with Trump’s campaign that defied establishment predictions—and disbelief—almost from day one.

Of course, popular rejection of the Core does not capture nearly all that seems to have driven Trump’s support—immigration, dwindling manufacturing jobs, plain old fear—but it does capture a seeming disdain for elites.

What is this likely to translate into in education policy, especially with a Republican controlled Congress?

Let’s start with the Core. Candidate Trump, without specifics, indicated on the campaign trail that he would get rid of it, seeing it as an unacceptable federal intrusion. And it was federally coerced. The problem is that the main levers of coercion—the Race to the Top contest and waivers out of the No Child Left Behind Act—are gone. Race to the Top is over, and No Child has been replaced by the Every Student Succeeds Act (ESSA). Unless Trump tries to coerce states to dump the Core—make receipt of funds or regulatory relief dependent on ditching it—he can’t end the Core.

What he can do—and I think, along with a GOP Congress, will do—is ensure that regulations to implement the ESSA do not coerce the use of the Core or any other specific standards or tests. This has been a real concern. While the spirit and rhetoric surrounding the ESSA is about breaking down federal strictures, the Obama education department has been drafting regulations that threaten federal control over funding formulas and accountability systems. And the statute includes language vague enough that it could allow federal control by education secretary veto. A Trump administration would likely avoid that.

Trump has also promised to spend $20 billion on school choice. The inclination is right—the way to make education work for kids is to give parents control of the dollars—but “encouraging” with federal carrots or sticks is wrong. For one thing, the Constitution gives Washington no authority to meddle in education outside of the District of Columbia itself, federal installations, and prohibiting state and local discrimination in their provision of education. Perhaps more important, we do not want private schools becoming dependent on federal money because, inevitably, with federal money would come federal rules, which would, over time, render school choice much less of a real choice, with all schools—public or private, from California to Georgia—increasingly identical.

What about higher education, in which federal subsidies have fueled skyrocketing prices and massive waste for decades? The good news is that Trump is unlikely to propose a Clinton/Sanders style “free” college plan. The bad news is that, so far, Trump hasn’t signaled an intent to significantly curb self-defeating subsidies like federal student loans and grants. Rather, he’s proposed an income-based repayment plan for loans and threatened the tax breaks and subsidies of schools that aren’t deemed to be making “a good faith effort” to control student costs. Part of that would include going after schools with big endowments, something likely to make little difference because only a few schools have endowments that are typically considered big.

What will almost certainly come to an end will be the war on for-profit colleges prosecuted by the Obama administration and its allies in Congress. (Programing note: Big event on for-profit schools next week!) That’s good, because for-profit colleges—though they produce some pretty bad outcomes—are not the problem in higher education. Every sector produces bad outcomes. The root problem is the mammoth subsidies, which incentivize bad decision-making by students and price hikes by schools. They are what need to be attacked.

For the youngest children, Trump has not proposed a wide expansion of preschool such as Head Start, which is good. The top-quality research does not support its effectiveness, despite what politicians and advocates pronounce. But he has proposed federal incentives to expand childcare, and that could include an education component. We’ll have to wait and see.

Overall, Trump has inveighed against federal intrusion in education, including talking about eliminating the U.S. Department of Education. The semi-concrete proposals he has put out there, however, seem somewhat at odds with that. One thing, however, seems certain: wonks and pundits would be wise not to dismiss his proposals as political pie-in-the-sky. Trump may well have a better sense for what is politically viable than they do, and his supporters don’t seem inclined to do what Beltway types tell them.

Some thoughts, with thanks to Josh Blackman for getting the ball rolling:

  • The Garland nomination is dead. Does this mean that Trump will indeed pick someone from his list of 21 potential nominees? That list was perhaps most notable for including 9 state jurists; will we get one of those on the Supreme Court for the first time since Sandra Day O’Connor was picked in 1981?
  • Senate Republicans’ strategy of not even considering D.C. Circuit Judge Merrick Garland, of letting the American people decide who gets to fill Scalia’s seat, worked. Not only that, but it didn’t at all hurt vulnerable senators running for reelection.
  • Anthony Kennedy will almost certainly continue to be the “swing justice” on most controversial issues; he may have been the biggest winner last night.
  • I feel sorry for Garland, a respected jurist and honorable man who’s been in limbo for nearly eight months. That said, this wasn’t about him and I would’ve advised voting against him.
  • An open question is what happens when Trump realizes that the sorts of judges he’s been advised to appoint would rule against him on various matters.
  • If you live by executive action, you die by executive action—which means that many high-profile cases looming on the Supreme Court docket will simply go away. DAPA (executive action on immigration) and the Clean Power Plan will be rescinded, religious nonprofits will be exempt from Obamacare, Trump’s HHS won’t make the illegal payments that have led to House v. Burwell, and more. That may include the transgender-bathroom guidance, which if rescinded would remove the biggest controversy from the Court’s current term.
  • With the election of (my friend and University of Missouri law professor) Josh Hawley as Missouri’s new attorney general, the not-yet-scheduled Trinity Lutheran case will likely be settled.
  • The New York Times editorial board better include “It turns out that Ilya Shapiro was right” in its editorial urging senators to reject Trump’s judicial nominees. Also, I can’t wait for the Paul Krugman column making that point.

Trump’s victory in the Presidential election is a tremendous political upset. The biggest issue raised by Trump was immigration—and he didn’t waiver from his restrictionist position. Although the polling data doesn’t show support for Trump’s position and the election was not a blowout, depending on whether he wins the popular vote (unclear at this time) he and other restrictionist Republicans will take this as a mandate to follow through on his immigration promises. 

Trump’s stump speeches were superficial but his immigration position paper was detailed and specific. Simply, it calls for a 20 percent to 60 percent cut in green cards and a huge increase in immigration enforcement. Here are the details from his immigration position paper fleshed out:

  1. Border wall. The completion of a border wall or at least 1000 miles of it (there are about 700 miles of walls and barriers currently). This wall could be virtual but he sold it as a physical barrier. His border wall is meant to address illegal border crossings that began subsiding a decade ago and are now near their post-1970 historical low point. There is a perception of chaos on the border that doesn’t reflect reality, but perception is all that matters in politics. The best way to further reduce unlawful immigration would be to create a low-skilled guest worker visa program or expand the existing ones, but Trump’s position paper precludes such a policy option.
  2. Nationwide E-Verify. Mandated nationwide E-Verify for all new hires in the United States as a means to exclude illegal immigrants from employment. E-Verify is an electronic eligibility for employment verification that checks a new hire’s identity information against government databases to approve or deny them employment. My colleague Jim Harper and I published a policy paper last year detailing all of the problems this system poses from economic, privacy, civil liberties, and effectiveness standpoints. E-Verify will add to the more than 13.48 man-hours spent by employers annually dealing with the I-9 form, unintentionally deny and delay many American workers legal employment due to inaccuracies, boost the black market in identity documents, and cost billions in taxpayer and economic costs to implement. E-Verfiy is also unenforced and ineffective at dimming the wage magnet in states where it is already mandated. E-Verify will fail to live up to its expectations and will be followed by calls for a national biometric identity card to seal gaps in the system.    
  3. End birthright citizenship. This would most likely require a constitutional amendment although Judge Richard Posner, noted legal scholar, thinks it can be changed by statute. Birthright citizenship is a lot older than the Fourteenth Amendment and has aided in the assimilation of generations of immigrantsin contrast to the experiences of assimilation in European nations without birthright citizenship. If implemented, jus sanguinis (citizenship through blood relations) would replace jus soli as the most important citizenship law of the land—an embrace of Carthaginian over Roman values.
  4. End DACA. President Obama’s executive action for unlawful immigrants brought here as children gave temporary work permits and relief from potential deportation (not a path to citizenship) to about 665,000 people. The continuation of this program depends on the actions of the President. Although this is not spelled out in his immigration position paper, it’s likely that Trump will decline to continue the program by stopping the periodic renewals required by law, thus opening up this population to deportation. Trump’s administration will also now have access to the identities of all the beneficiaries of DACA who had to submit their personal information to benefit, a source of information that could be used to more efficiently deport them. This has the potential to be a heart-wrenching humanitarian disaster for the DACA beneficiaries, their families, and those of us who count some of them as friends.  
  5. Mandatory detention. Detain all illegal immigrants apprehended while entering the United States. This policy is already partially implemented but could be greatly expanded. It would require new detention facilities similar to those used to detain Unauthorized Alien Children from Central America at serious economic and humanitarian cost
  6. Immigration moderation. Trump’s paper calls for a “pause” on the issuance of new green cards to workers abroad so that “employers will have to hire from the domestic pool of unemployed immigrant and native workers.” There were 151,596 employment-based green cards issued in 2014. 86 percent of them went to workers already in the United States on other visas. The other 14 percent went to workers abroad. The government also issued 645,560 family-based green cards in 2014, all of which allow recipients to work in the United States. 61 percent of these family-based green cards went to immigrants who were not in the country on another visa.  Depending on how you dice it, this provision could cut between about 140,000 and 540,000 green cards annually.
  7. Increase prevailing wage for H-1Bs. This policy proposal will reduce the number of legal skilled temporary migrant workers. Just over 124,000 H-1Bs were approved in 2014 for initial employment in the United States, with 85,000 of them for employment in firms and the rest in non-profit research institutions. These workers have an average salary of $75,000 so they do not compete with low-skilled America workers. If the minimum salary for H-1B visas was bumped up to $100,000 then the number of H-1Bs hired by private firms would decrease while they’d also shrink for research institutions. The 75th percentile for wage compensation for H-1B workers is $81,000. Even including all of the petitions for high wage workers that are rejected each year, this reform would significantly shrink the number of H-1B visas issued at an enormous economic cost. The H-1B system is also the feeder to the employment-based green card so any change here could disrupt future flows there even if no other changes are made. 
  8. Requirement to hire American workers first. This policy would increase the regulatory cost for American firms hiring skilled foreign workers in specialty occupations. Congress considered this policy for the H-1B visa in 1990 and rejected it because the regulatory costs would be so high. If Trump is the anti-regulation candidate he claims to be then he’ll reject this provision.
  9. Refugee program for American children. This policy would raise the standards for refugees and asylum seekers to cut down on supposed abuse and fraud. Assuming the worst case scenario, Trump’s policy proposal would decrease humanitarian immigration by 70 percent if trumped up fraud statistics are to be believed. That policy, if in place in 2016, would have cut the number of refugees by about 60,000 under the worst case scenario. 

The taxpayer cost of enforcing America’s immigration laws to the point where all illegal immigrants are removed and future flows stopped would be $419 to $619 billion over 20 years, according to estimates by the American Action Forum. These estimates do not include negative economic effects and lost tax revenue from a subsequently smaller economy. The Bipartisan Policy Center estimates that an attrition through enforcement policy would increase projected deficits by about $800 billion over the next 20 years. Those estimates don’t include the cost to the economy and government finances of slashing legal immigration.    

As I write, the presidential race has just been called by the media: barring fantastical litigation, Donald Trump will be moving into the White House. But even if he had fallen just short, it’s no understatement to say that Trump shocked the nation and the world—or at least the elites (conservative, progressive, libertarian, and every other kind). Pollsters are eating crow, as are political campaign professionals. I’m not either of those, but here’s my first stab at sketching an explanation for what we just witnessed.

Here are five reasons behind the Trump phenomenon, in no particular order and using purely qualitative analysis:

  1. Hillbilly Elegy – J.D. Vance’s book touched a nerve in the political culture by capturing the zeitgeist regarding the plight of the white working class, particularly in Appalachia. This phenomenon will be a source of many sociology dissertations in coming years.
  2. Shy Trump Voters – Just like the “shy Tories” who reelected David Cameron and the “shy Brexiteers” who voted the U.K. out of the E.U., many people didn’t want to tell pollsters that they planned to vote Trump, or simply declined to be polled.
  3. Hollywood and General Progressive Smugness – People don’t like being condescended to. I missed my chance to write an op-ed citing schadenfreude as the best reason to vote Trump, but maybe now I’ll get to do it as a silver-linings piece.
  4. Celebrity – Down-ballot GOP primary challengers tried to use Trump’s schtick and they failed. A majority/plurality of Republicans reject much of what specific policies Trump has offered. Yet The Donald has such name recognition, such a brand, that he pulled it off. We can expect many more celebrities entering the political arena in future.
  5. An Opponent Who Is a Truly Horrible Candidate – Hillary Clinton was no Democrat’s dream candidate (even the ultra-feminists would’ve preferred someone who hadn’t already been first lady) and she ran a campaign devoid of meaning—apart from the very identity politics that proved to be her undoing. She’s like Martha Coakley, the former Massachusetts attorney general who somehow managed to lose “Ted Kennedy’s” Senate seat.

As we all ponder the election, I welcome suggestions for refinement of and additions to these theories.

One clear message from yesterday’s election is that many voters—and many others who stayed home from the polls—were underwhelmed by the major-party candidates for president. Several factors conspired to deliver the Democratic and Republican nominations to Hillary Clinton and Donald Trump. One of those factors that sorely needs to be reformed before the next election cycle is the lousy format used for candidate debates.

Typically, candidates are given scarcely a minute or two to answer moderators’ questions about complex policy issues, and even less time to rebut an opponent or offer a response. Candidates aren’t given the debate questions ahead of time, and though they have some idea of what they might be asked, they can’t prepare and deliver careful, detailed responses. The candidates aren’t permitted notes or electronic devices, so they can’t quickly reaffirm facts or double-check complex arguments. And they can’t use visual aids to help explain their ideas or provide full references.

These limitations punish candidates who are thoughtful, have nuanced policy knowledge, offer innovative ideas, and who want to communicate with and persuade a broad, diverse audience. The limitations favor candidates with little knowledge or concern for facts, who spout standard ideologies, who play to partisan bases, and who are dishonest and incivil.

If the coordinators of the 2020 debates truly want to provide a public service, they will dispense with the current format and instead provide candidates an opportunity to show if they are informed, pensive, respectful leaders who can talk to Americans about sophisticated public policy. If, on the other hand, these coordinators continue using the same debate formats as 2016, we will likely have party nominees similar to 2016’s.

No matter who wins this year’s presidential election, believers in monetary freedom will have their work cut out for them.

A newly-elected president Trump will quickly turn from making the Fed a scapegoat for his own campaigns’ tribulations to blaming it for his economic policy failures — starting with the equities market nose dive that’s likely to follow his surprise victory. But instead of continuing to rail against the Fed’s supposedly easy policy stance, you can bet that president-elect Trump would soon be blaming it for keeping money too tight.

In any event, a newly-elected Trump administration, through its unveiled hostility toward the Fed, could not fail to make that already “political” institution even more so, for the Fed knows very well that, if it wants to preserve its vaunted independence, it had better heed the administrations’ wishes. That’s what former Fed Chairman William McChesney Martin, who understood the true nature of the Fed’s independence better than anyone, meant when he explained that the Fed was independent, not “from,” but “within,” the government.

And if it doesn’t? Then at the very least we can expect President Trump to make life very unpleasant for Chair Yellen, in the hope of making her resign before the end of her term in January 2018. And even if she resists, we can expect to have a Trump-appointed Fed chair in place for at least half of his term. If you think that might be an improvement, then presumably you believe that Trump is a better judge of monetary policy experts than he is of economic policy experts generally.

In any event, it is another Clinton presidency that champions of monetary freedom are most likely to have to contend with. And what will that mean? Although the Fed would be bound to accommodate her own administration’s wishes to some extent, Clinton’s championing of Fed independence during her campaign would at least make it necessary for her administration to proceed relatively gingerly in trying to sway its conduct. But while the Clinton administration is unlikely to influence Fed policy directly, it can be expected to do so indirectly, in the name of “diversity.”

In fact, as our own Mark Calabria has written, however much the Fed may suffer from a lack of optical diversity, and especially diversity of gender and race, it suffers more from a lack of diversity of ideas, that is, from an excess of group-think. And it suffers from group-think not because its leaders are mainly white, or mainly male, or even mainly bankers, but because the most influential ones are mainly PhD economists from the same handful of mainly Ivy-League universities. It’s easy for such economists to dominate discussions of policy matters rendered increasingly arcane by their own past efforts, leaving little for others to do but hope that they know what they’re talking about.

Diversity reform of the sort that Clinton seems likely to push is unlikely to overcome such group-think. But that doesn’t mean that it can’t serve as a cloak packing the Fed with persons subservient to the administration — I mean, even more subservient than ordinary bureaucratic survival instincts require. And such abuse of any diversity mandate is something fans of sound monetary policy will have to be prepared to combat. For starters, they would be wise to start thinking of potential, diversity-enhancing persons who actually have a good grasp of what it takes to have a sound monetary system.

Then there’s Glass-Steagall. So far Clinton has refused to yield to popular and misplaced pressure to restore parts of the Depression-era banking law that were repealed by Clinton 42 in the 1999 Gramm-Leach-Bliley Act — and which had nothing to do with the crisis (as Bill Clinton correctly pointed out in supporting his wife’s position). But thanks to Wikileaks we know that candidate Clinton came very close to yielding to Elizabeth Warren and other progressive Democrats to restore the old Glass-Steagall provisions; consequently there is some risk that she’ll be persuaded to reconsider her position once in office.

Needless to say, owing to partisan gridlock, a Clinton Presidency threatens those legislative initiatives favoring greater monetary freedom that have been wending their way through Congress recently, including the FORM Act and the Financial CHOICE Act.

But Clinton’s most obvious threat to monetary freedom consists of her resolve, not only to retain, but to reinforce, Dodd-Frank’s encroachments upon that freedom. Evidently candidate Clinton is less interested in what Dodd-Frank has actually accomplished than in what it pretends to accomplish. We can only hope that President Clinton can be persuaded to take reality more seriously. At the very least, one hopes she can be persuaded that so far as small banks are concerned Dodd-Frank’s influence runs entirely counter to her proclaimed desire to “cut red tape to streamline the process of starting a small business” and to “unlock” non-bank small businesses access to capital.

As for Clinton’s call for a reform that would allow the government to break-up banks deemed “too large and risky to be managed effectively,” how should lovers of financial freedom respond? That depends, in part, on the extent to which they regard existing financial behemoths as so many Frankenstein monsters given life by past government guarantees.

The sad reality is that the battle for monetary freedom has for some time now taken the form of a rearguard action, aimed at resisting as much as possible ever-increasing government incursions into the ever-shrinking realms of monetary freedom. The election’s outcome, whatever it may be, won’t change this. Instead, it will make it all the more necessary for those of us who recognize the virtues of monetary and financial freedom to rise to the defense of those pockets of financial liberty that we still hold, even as we renew our struggle to recover ground already lost. Eternal vigilance… .

[Cross-posted from Alt-M.org]

The economic plight of low-skilled workers has received considerable attention during the presidential campaign. The problem is older than the primary season however, as the share of prime-age U.S. workers without a high school degree with jobs has been declining for decades. Yet at the same time, low-skilled immigrant men have been unaffected by this trend. While some commentators have attempted to blame the failure of native-born men to work on immigrants, the evidence points to other causes.

This post will expand on the lessons from Nicholas Eberstadt’s wonderful new book Men Without Work to give five reasons why low-skilled men who have immigrated to the United States tend to work more often than similarly educated men who were born here.

Figure 1 highlights the problem. For as far back as we have data, immigrant men without high school degrees in their prime years (25-54) have held jobs far more often than similar native-born men. Moreover, the gap in employment between the average low-skilled immigrant man and the similar native-born man is growing. In 1995, there was an 18 percentage point difference in the employment rates of the two groups. By 2014, the difference was 31 points.

Source: Census Current Population Survey March Supplement

1. Low-skilled immigrant men look for work. The single most important reason that immigrants perform better than lower-skilled natives is that they actually search for jobs in the labor market. As Figure 2 shows, more than 1 in 3 low-skilled native-born men in their primes are not even looking for jobs, compared to just 1 in 13 immigrant men. The gap is also growing. In 1995, there was a 17 percentage point difference between the share of low-skilled immigrant men and low-skilled native-born men who were out of the workforce entirely. By 2014, the difference had reached 25 points. It’s hard to get a job without first looking.

Source: Census Current Population Survey March Supplement

2. Low-skilled immigrants use less welfare. As a 2013 paper by the Cato Institute demonstrated, poor immigrants use significantly less welfare than poor native-born citizens. Moreover, as I have shown previously, immigrant labor force participation rates grew in response to the welfare reform that Congress passed in 1996. The 1996 law barred all noncitizens from welfare, except for legal permanent residents who had been in the country for more than five years. This incentivized them to seek jobs, and during this time, overall immigrant employment rates surpassed the native-born rates. This surge in employment caused their income to rise so much that their rates of poverty actually declined. Native-born men have faced much less pressure to reenter the labor market.

3. Low-skilled immigrant men commit far fewer crimes. Immigrant men are much less likely to be incarcerated than similar native-born men. Figure 3 provides the incarceration rates for native and foreign-born men ages 18 to 39, and in every Census year since 1980, the foreign-born rate is half or less than half the native-born rate. This is also true for high school dropouts from the top sending countries for unauthorized immigrants. Almost 1 in 9 native-born men ages 18 to 39 without a high school degree was incarcerated in 2010, compared to just 1 in 59 Mexican-born men. Criminal records and unemployment resulting from incarceration provide serious obstacles to the ability of native-born men to find employment.

Source: American Immigration Council 

4. Low-skilled immigrant men are more likely to marry. For both immigrants and natives, married prime-age men are much more likely to work than never-married men (Figure 5). For immigrants, there was an almost 10 percentage point difference in employment rates between these two groups of men. Natives had nearly twice the gap. As Figure 6 shows, low-skilled immigrant men were nearly twice as likely to be married in 2014. The best theory is that married men are more motivated to work because they often need to provide for their families.

Source: Census Current Population Survey March Supplement (2014)

5. Native male workers are more likely to get educated. As I have previously explained, the greater share of natives who fail to graduate high school or obtain employment is explained entirely by the fact that working natives are much more likely to get educated today than in the past. In fact, as Figure 7 shows, the absolute number of native-born high school dropouts without work (purple line) has actually declined slightly since 1995, just not as quickly as the total population of dropouts has declined (red line). As native workers are leaving this population by getting educated, low-skilled immigrants are entering from abroad (blue line) and finding jobs much faster than others are leaving the workforce (green line).

Source: Census Current Population Survey March Supplement

Opponents of immigration note that several studies have found that low-skilled immigration causes small declines in wages for native-born high school dropouts. But all of the studies finding declines for low-skilled native wages have found substantially larger declines for low-skilled immigrant wages. If those small wage declines forced natives out of the workforce in large numbers then we should expect even larger declines in labor force participation rate for low-skilled immigrant workers. That we do not is telling. As Eberstadt notes:

No matter their race or educational status, married men raising a family work more, and never-married men without children or children in their home work less. No matter their ethnicity or race, prime-age men who come to this country work more than those here by birth. Neither a wedding nor a green card confers innate advantage in the competition for jobs. Rather, marriage and migration decisions point to motivations, aspirations, priorities, values, and other intangibles that do so much to explain real-world human achievements.

Government policies—such as reforming welfare programs and the criminal justice system—could help some of these native-born Americans to reenter the labor force. But the main reason that low-skilled immigrant men work more often than other low-skilled men is that these immigrants have made better personal decisions. They seek out work and commit fewer crimes. They start and provide for their families. They make these decisions despite facing stiffer competition for jobs from newer immigrants and lacking the language proficiency of native workers—the most important hurdle to employment in the United States.  

In other words, immigrants don’t just provide important economic benefits by preventing the U.S. labor force from declining—they are also bringing with them many important cultural benefits that the United States desperately needs. Punishing these immigrant workers will not aid struggling native-born workers—it will only hurt them and the economy as a whole.

Don B. Kates, a pioneer in the revival of the Second Amendment, has died at 75. Eugene Volokh writes in the Washington Post that 

Don wrote “Handgun Prohibition and the Original Meaning of the Second Amendment,” 82 Mich. L. Rev. 204 (1983), the first modern article in a major law review arguing for the individual-rights view of the Second Amendment, and since then he wrote or co-wrote over 15 more law review articles, as well as writing, co-writing or editing four books. His work has been heavily cited both by courts and by scholars.

His writing career may have begun with Inquiry magazine, published in the 1970s by the Cato Institute. His article “Handgun Control: Prohibition Revisited” appeared in Inquiry’s second issue, December 5, 1977. For some reason that piece appears to have been excerpted in the Washington Post three years later.

Libertarian movement historian Brian Doherty expands on his seminal influence:

As explained in an excellent 2014 essay on Kates’ contributions to modern Second Amendment thought by California-based gun law scholar C.D. Michel, “Kates was a nearly lone voice in the constitutional law wilderness….Kates’ work, both as a constitutional scholar and criminologist….largely ignited the counter revolution against the American gun control movement” by arguing and demonstrating that the Amendment was certainly intended to protect an individual right to possess weapons.

Kates’ article became an ur-source to later articles by more academically well-connected authors, such as Sanford Levinson’s 1989 Yale Law Review article “The Embarrassing Second Amendment,” that spread the new understanding of that Amendment as guaranteeing an individual right to the more liberal side of legal academia.

As Michel notes, “All the scholarship that Kates indirectly ignited eventually fueled legal briefs filed before the Supreme Court in District of Columbia v. Heller.”

According to Wikipedia, Kates grew up in the San Francisco Bay Area and later attended Reed College and Yale Law School. During the Civil rights movement, he worked in the South for civil rights lawyers including William Kunstler, an experience that informed his understanding of the need for armed self-defense. After three years of teaching constitutional law, criminal law, and criminal procedure at Saint Louis University School of Law, he returned to San Francisco where he practiced law and began writing on criminology and guns. Dave Kopel has more on his background and influence here.

Watch Don Kates talk about gun control in this 1989 speech at Libertarianism.org.

The prospect of Donald Trump as president is only slightly less ridiculous than the idea of Charlie Sheen with nukes—and possibly more frightening. And yet, it looks as though the verbally incontinent celebreality billionaire has a one in three chance of being elected come Tuesday. 

Terrifying, yes, but fear can be useful. In this case, it ought to concentrate the mind wonderfully: if someone so manifestly unfit, so transparently likely to abuse power, can come within striking distance of the presidency, then maybe it was a bad idea to concentrate so much power in the Oval Office in the first place.    

It’s no secret that the “most powerful office in the world” grew even more powerful in the Bush-Obama years. Both presidents stretched the 2001 Authorization for the Use of Military Force into a wholesale delegation of congressional war powers broad enough to underwrite open-ended, globe-spanning war. Bush began—and Obama continued—the host of secret dragnet surveillance programs revealed by Edward Snowden—and others we’re still largely the dark about. And lately, on the home front, Obama has used the power of the pen to rewrite broad swathes of American law and spend billions of dollars Congress never appropriated. 

America’s center-left papers of record have lately begun to notice that the vast powers recent presidents have forged would be available to Trump as well. The New York Times’s Carl Hulse writes that Obama’s assertion of a presidential power of the purse could have ”huge consequences for our constitutional democracy…. How would lawmakers react if a willful new chief executive, unable to win money from Congress for a wall on the Mexican border, simply shifted $7 billion from another account and built it anyway?” And a month ago, the Washington Post kicked off a series of half a dozen editorials warning what would befall the republic should Trump ascend to Real Ultimate Power: “A President Trump could, unilaterally, change this country to its core,” the Post’s editorialists argued, and the other branches won’t be able to stop him: “in the U.S. System, the scope for executive action is, as we will lay out in a series of editorials next week, astonishingly broad.” 

It was nice to see the Post editorial board, which had called Obama’s recess-appointments gambit “a justifiable power grab,” evince some concern about potential abuses of executive power. Through five more editorials, they’d go on to observe that a President Trump could, among other abuses: “launch wars”; “take the oil”; “assassinate foreigners who opposed him”; issue a secret legal opinion overturning the torture ban; “launch surveillance programs targeting foreigners without informing Congress”; pull out of NAFTA, start a trade war, and “destroy the world economy.” An imposing parade of horribles, all leading up to the limpest of takeaways: “the nation should not subject itself to such a risk.” In other words, don’t vote for Trump. OK, then: Problem solved?

I don’t disagree with the Post’s argument that Trump represents a unique threat to what remains of constitutional government. But whatever happens on Tuesday, we’re sure to be facing a deeply unpopular, ethically challenged, and potentially abusive president. Hillary Clinton has, you may have noticed, a penchant for all the secrecy she can “get away with,” a hairtrigger enthusiasm for “dumb wars,” and a Nixonian ruthlessness that some of her supporters consider a virtueA broad majority of Americans—far more than will end up voting for Trump—distrust Hillary Clinton, the second most reviled candidate in the history of polling. Are they wrong to worry about her having the power to “unilaterally change this country to its core”? Should anyone have that kind of power? 

If Hillary Clinton is elected Tuesday, will centrists and liberals manage to keep in mind just how close we came to handing unchecked power to a figure like Donald Trump? Or having careened right to the edge of the cliff, are they just going to blurt: “Crikey: that was a close one!”, and go on to cheer every “justifiable power grab” Clinton undertakes? I worry about the answer to that question, but I’d like to think that all the recent hand-wringing about unchecked executive power will lead somewhere. 

In 1967, Arthur Schlesinger Jr., erstwhile court intellectual to JFK, and dean of the liberal historians, had a minor epiphany. As he put it in his journal, “It is evident now that this delight in a strong presidency was based on the fact that, up to now, all strong presidents in American history have pursued policies of which one has approved.” There was an artful evasiveness to that third-person formulation: Schlesinger had earlier backed Harry Truman’s claim of unlimited war powers, and would only publish his classic The Imperial Presidency when a Republican, Nixon, was in the White House. (It’s a shame when a man feels like he has to dissemble to his own diary.) But Schlesinger’s point stands: partisan myopia forged the Imperial Presidency, in his day and ours. 

Conservatives pushed for a stronger presidency during the era of the Emerging Republican Majority, believing they’d hold the office more often than not. They pushed even harder during the second Bush presidency, passing on a presidency with radically enhanced powers to Barack Obama. Liberals, in turn, adopted a “what-me-worry?” attitude toward unchecked war powers, so long as Obama was in charge, and cheered 44’s promise to govern via the pen and the phone. 

But, as Jonathan Turley observed last December: “While the policies [one favors] may not carry over to the next president, the powers will…. The problem with allowing a president to become a government unto himself is that you cannot guarantee who the next president might be.”

It’s an insight that should be blindingly obvious to anyone capable of thinking past a single presidential election cycle, but one that’s seemed beyond the ken of most political elites. If the next president can turn out to be a tyrant, then “tyrant-proofing the presidency,” in Conor Friedersdorf’s phrase, is our most pressing political task.

The number of gas stations in the United States has fallen by nearly 30 percent in the last two decade and the DC government says it is determined to arrest that decline, at least in this jurisdiction. Why it feels this way is a complete mystery, and that it has taken action on this front is absurd.

It is easy to surmise why we have fewer gas stations: more stringent regulations on underground gas tanks increased the cost of operating a station and spurred many operators to close their doors in the late 1990s. Also, many gas station operators these days see selling gas as primarily a way to attract a lot of shoppers to their store and are willing to cut their margin to the bone to get those ancillary sales. As a result, the average fuel sales (and non-fuel sales) of gas stations has been growing steadily. The days of a mom and pop station selling gas, fixing cars, and selling a little candy by the cashier are long gone.

In Washington DC, the number of gas stations has been further reduced by the sharp increase in real estate prices. The opportunity cost of operating a station jumps when the land would be much more profitable with a multi-story building on it instead of gas pumps.

Few people see this economic evolution towards fewer gas stations as a bad thing in and of itself: The economy today looks vastly different than the economy four decades ago–there are many more restaurants, fewer music stores, and a wide variety of entities today that didn’t even exist in the 1970s and 1980s. Few people across the country complain that it is difficult to buy gas–because if there were an excess demand, there would be an incentive for an entrepreneur to build a gas station.

Nevertheless, Washington DC has a Gas Station Advisory Board that must approve all station closings, and there is a good chance it will stand in the way of a developer hoping to convert a gas station into condos in tony Dupont Circle.

That such an entity exists is a wonderful commentary on the priorities of the progressive nomenclatura that govern the Nation’s Capital. For the most part these people oppose driving and the car culture that exists in the rest of the country, but at the same time they are reflexively opposed to all new development for the ironic reason that a new development means more people with cars will be competing against them for scarce on-street parking that the city inexplicably gives away.

it’s easy to surmise who the losers from this insipid policy will be: the middle and lower classes, who are increasingly priced out of the city’s housing market because the city prizes the protection of the elite carred class above all else. The wealthy car owners who park their cars on the street have the juice to delay and diminish all new developments, and the city council can pretend that giving the working class new rent controls will somehow make up for the utter lack of new housing being developed in Northwest DC. And one of the tools to stop development is a board that has to approve all gas station closures.

My suspicion is that the new condo building will eventually get built in a way that preserved the “historic” gas station, albeit three or four or more years from now and in a size that’s much smaller than what they have proposed, and the city councilmen and bureaucrats will congratulate themselves for reducing the “rapacious” profits of a developer.

But no one will ever stop to contemplate that their obstinacy on this project–and literally hundreds just like it across this town–combine to create unaffordable prices for middle-class families in this town. And at the same time they are fighting this condo development they will be pondering elsewhere how to create more affordable housing in this city, completely oblivious to the contradiction in their actions. 

The First Amendment guarantees the right to speak freely without fear of official retribution. One aspect of this right is that a government agency may not punish someone for speaking out, supporting a candidate, or running in an election. Allowing such retribution would be to allow the government to extort citizens into supporting a particular political orthodoxy.

But such extortion is exactly what happened in Nebraska. Robert Bennie, a financial advisor, became active in the Tea Party movement in 2010. Before then, he had never received any disciplinary action from the Nebraska Department of Banking and Finance, a regulatory agency that monitors brokerage advertisements for compliance with financial regulations. After Bennie became politically active, the Department suddenly began a campaign of investigations and threatening letters, despite the fact that Bennie remained fully compliant with all regulations.

Suspecting that these developments were retaliation for his political stands, Bennie sued the Department. Both the district court and the U.S. Court of Appeals for the Eighth Circuit agreed with Bennie that the government took an adverse action against him that was motivated in part by his First-Amendment-protected speech. And yet the courts nonetheless denied Bennie any relief, imposing yet another hurdle: the “ordinary firmness” test.

Under this test, a court must find that the adverse government action was “severe enough to chill a person of ordinary firmness from continuing to speak.” The district court found that the Department’s actions were not “severe enough” to meet this threshold, a holding which the Eighth Circuit affirmed.

Cato, joined by the Reason Foundation and the National Right to Work Legal Defense Foundation, has filed an amicus brief urging the Supreme Court to review the case and put an end to the misguided “ordinary firmness” test. The test was originally devised as a means of determining whether seemingly trivial allegations of retaliation could survive a motion to dismiss. But as shown here, courts no longer use the “ordinary firmness” test to distinguish true retaliation from trifling pushback. Instead, the test allows the government to get away with blatant campaigns of intimidation, so long as it can convince a factfinder that the plaintiff was insufficiently “firm.”

This simply does not square with the Supreme Court’s own “longstanding recognition that the Government may not retaliate for exercising First Amendment speech rights.” Wilkie v. Robbins (2007). As the Court has observed, “Official reprisal for protected speech offends the Constitution because it threatens to inhibit exercise of the protected right.” Hartman v. Moore (2006).The justices can eliminate the “ordinary firmness” test without risking a spate of frivolous lawsuits, because courts already have several early avenues for ensuring that trivial suits for truly minimalharms are thrown out.

The Supreme Court should take up Bennie v. Munn and ensure that the government can no longer punish citizens for their political views.

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