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In our recent brief on immigrant crime, we focused on the 18 to 54 age range when looking at the incarcerated and non-incarcerated populations. This was necessary because the American Community Survey data for weighted responses does not distinguish between the type of group quarters – which are prisons, universities and colleges, mental health facilities, nursing homes, and others.

By narrowing our focus to those in the 18 to 54 age range we were able to cut out about 1.4 million folks in elderly care facilities but only excluded about 206,000 prisoners or about 9.2 percent of the total. Excluding those under the age of 18 also removed most respondents in mental health facilities but only decreased the adult criminal population by 0.2 percent.

Figure 1 did not make it into our final brief but it shows a big difference in the distribution of ages between the three groups we examined. The median age of illegal immigrants and natives is 35 – almost exactly in the middle of the 18 to 54 age range. Interestingly, there is a dip in the age distribution for natives in their late thirties and early forties while the age distribution of illegal immigrants is shaped like a bell. In contrast, the median for legal immigrants was 41 which is on the older side of the distribution.

Figure 1
Age (18-54) Distribution of Illegal Immigrants, Legal Immigrants, and Natives

Source: ACS and authors’ calculations.

Criminals are disproportionately young so it would be reasonable to expect natives to be more crime-prone before the age of 27 and illegal immigrants to have a higher crime rate than legal immigrants. That could explain part of the difference in crime rates between natives and illegal immigrants. The surprising result is that illegal immigrants are so much less crime prone when immigration-only offenders are excluded even though they are younger than legal immigrants and have a median age that is the same as natives.  The young age and low education of illegal immigrants are consistent with more criminality in other populations.

The most surprising finding from our brief is that illegal immigrant women are less than half as likely to be incarcerated as women who are legal immigrants or natives (Figure 2). Illegal immigrants are slightly less likely to be women in this age range, only 48.5 percent compared to 51 percent for legal immigrants and 50 percent for natives, but that doesn’t explain the difference in rates. It could be related to low female illegal immigrant labor force participation rates (LFPR) or caused by the same mechanism that induces those lower LFPRs.

Figure 2
Characteristics of Prisoners by Sex and Nativity, Ages 18-54



Legal Immigrants

lllegal Immigrants












 Source: ACS and authors’ calculations.



In a unanimous decision yesterday, the U.S. Court of Appeals for the Eleventh Circuit vindicated Ocheesee Creamery’s free speech rights when it reversed a district court’s decision that prevented the creamery from telling its customers the truth about the products it sells.

Ocheesee Creamery is a small, all-natural dairy farm located in rural Florida that prides itself on selling organic products to its customers. This mission requires that they not add ingredients to the food they sell. One such product the creamery offered was “skim milk”—which is simply milk that has had the cream removed. For a number of years, Ocheesee sold its milk and accurately labeled it as pure pasteurized skim milk—nothing more, nothing less.

In 2012, however, the Florida Department of Agriculture and Consumer Services (FDACS) told the small business that it had to inject its all-natural milk with artificial vitamins or quit telling its customers that what they were offering was skim milk, and instead call it “imitation milk product.” FDACS regulations define skim milk as milk that is not just milk, but as milk injected with vitamins A and D. Now, you might ask yourself how injecting artificial ingredients into all-natural product transforms it into something that is considered “imitation”. Yet that’s precisely what the FDACS requires under its regulations.

This left Ocheesee with a Hobson’s choice: it could mislead its customers by labeling its milk as “imitation”; it could pump the milk full of artificial ingredients and thus violate its mission to sell all-natural products; or it could quit selling skim milk and lose substantial profits. Faced with this dilemma, the creamery offered to put a disclaimer on its labels that would tell customers that its milk doesn’t include added vitamins. But this wasn’t good enough, so, aided by the Institute for Justice, the creamery sued the Florida bureaucrats in federal court.

Ocheesee lost its opening battle when a district court granted the government’s motion to dismiss the case, but the Eleventh Circuit reversed the decision. The court found that the First Amendment protects the creamery’s labeling of its skim milk because the labeling did not relate to an illegal activity and it is not false or inherently misleading speech. The court pointed to Webster’s Dictionary, which defines “skim milk” as “milk from which the cream has been taken”—which is exactly what the creamery was offering its customers. The court elaborated that while “[i]t is undoubtedly true that a state can propose a definition for a given term … it does not follow that once a state has done so, any use of the term inconsistent with the state’s preferred definition is inherently misleading.” Because if the government were allowed to do so, “[a]ll a state would need to do in order to regulate speech would be to redefine the pertinent language in accordance with its regulatory goals… . Such reasoning is self-evidently circular.”

Moreover, the court noted there were other ways Florida could have sought to regulate the creamery’s labeling to protect its regulatory goals. It pointed to a proposal—which Ocheesee had already offered years before—to simply require the creamery’s label include an “additional disclosure” that some vitamins in the milk are removed during the skimming process.

The circuit court’s decision should be applauded as a win for free speech and economic liberty, and shows that states may not take the cream out of the First Amendment or give us “skim milk” constitutional protections.

Responding to conservative protests that the American Health Care Act would immortalize ObamaCare rather than repeal it, the House Republican leadership has announced several amendments. (See my initial analysis of the bill here, and my analysis of the Congressional Budget Office score).

The amendments do not even come close to fixing the problems with this fatally flawed bill. Indeed, by expanding the AHCA’s tax-credit entitlement, it will make the bill resemble ObamaCare even more.

ObamaCare’s Medicaid Expansion                                 

Original AHCA provisions:

As introduced, the AHCA includes language that supposedly repeals ObamaCare’s expansion of Medicaid to able-bodied, childless adults. In fact, it would expand the Medicaid expansion and make it permanent.

The original bill would have allowed the 19 non-participating states to implement the expansion until 2020, allowed participating states to expand enrollment until 2020, and would have kept paying states the enhanced, 90 percent federal “match” for each expansion enrollee until that enrollee disenrolled. Expansion advocates in those 19 states hailed the bill for removing obstacles to those states implementing the expansion.

The bill thus would have repealed the Medicaid expansion in name only. By 2020, there would have been so many more Medicaid expansion states and enrollees, that Congress would rescind the repeal and keep the expansion in perpetuity.


The amendment would prevent the 19 states that have not implemented the expansion from doing so. This is a welcome change—but it is not nearly sufficient.

Even with this change, there would more Medicaid-expansion enrollees after “repeal” than before. The 31 expansion states could keep adding new enrollees to the expansion until 2020, and keep receiving the enhanced, 90 percent federal “match” for those enrollees after 2020. The AHCA would still reward state officials who did the wrong thing (expanding Medicaid) and punish state officials who did the right thing (refused to implement the expansion). The bill would still create increased pressure on Congress to rescind this “repeal” before 2020.

The amendment would allow states to impose work requirements for able-bodied Medicaid enrollees. Again, this is a welcome change, but not nearly sufficient.

Work requirements could reduce dependence on Medicaid, reduce Medicaid spending, and reduce pressure for Congress to preserve the expansion. Yet work requirements are only (politically) feasible for able-bodied adults. And the states where work requirements are most needed—the 31 states that have implemented the Medicaid expansion—are the least likely to impose a work requirement. Why would they? States that use work requirements to help Medicaid-expansion enrollees achieve financial independence would see only 10 percent of the savings. The other 90 percent goes to Washington. The amendment’s optional work requirements are a fig-leaf proposal that does little if anything to improve the AHCA.

Medicaid “Reforms”

Original AHCA provisions:

Under current law, the federal government provides unlimited matching grants to states for their Medicaid programs. For every dollar a state spends on its “old” Medicaid program, the federal government gives the state from $1 to $3. For every dollar a state spends on ObamaCare’s Medicaid expansion, the federal government generally will give the state $9. These provisions create incentives for states to expand Medicaid to able-bodied adults and to cut care for more vulnerable residents—children, expectant mothers, the aged, blind, and disabled.

As introduced, the AHCA would change how the federal government funds the “old” Medicaid program in a way that likewise encourages states to expand the program to able-bodied adults and to cut care for the disabled and other vulnerable residents.

The AHCA would convert the current unlimited matching-grant system to a system where states can receive unlimited grants so long as they keep expanding eligibility and enrolling more people in Medicaid.

States would continue to receive matching federal dollars for every dollar they spend until federal grants reach a variable “cap.” Beyond that cap, states get no more money from the feds. But the cap rises if states expand enrollment.

As a result, when states approach or exceed the cap, they will have two choices. They can expand enrollment (which allows the state to continue receiving federal matching dollars) or they can cut benefits and provider payments. The AHCA thus mimics the Medicaid expansion’s incentives to expand enrollment among able-bodied adults (who cost the state relatively little) and to cut care to vulnerable populations. Under the ACHA, cutting spending for vulnerable patients by $1 saves the state $1, as opposed to an average $0.43 under the current system.

The AHCA would give states the option of a block grant—a fixed federal payment, rather than matching grants. But making block grants an option assures higher federal spending, since each state will take whichever option maximizes the federal contribution to their programs.


The amendments would increase the rate of growth of the “cap” with respect to elderly and disabled enrollees. This change would increase federal spending on those groups, but do nothing to change the perverse incentives noted above.

Tax Provisions

Original AHCA provisions:

As introduced, the AHCA preserves much of ObamaCare’s entitlement spending by reshaping its subsidies for private health insurance. ObamaCare offers “refundable” tax credits for health insurance that are based on income. The “refundable” part means that these tax credits are mostly government outlays, not tax reduction. ObamaCare’s “tax credits” are 94 percent government spending.

The AHCA would convert those tax credits to smaller credits based on age. Crudely put, the AHCA would shift the benefits from ObamaCare’s tax credits from low-income people in the individual market to higher-income people in the individual market. At the same time, the AHCA would allow insurers to reduce premiums for younger enrollees and increase premiums for older enrollees. The combination of these changes means many older and lower-income enrollees will have to pay more out of pocket for less coverage.

The AHCA would have allowed tax-credit recipients who purchased coverage that cost less than the amount of the credit to deposit the balance in a tax-free health savings account (HSA).

ObamaCare increased the threshold above which taxpayers can deduct their medical expenses from 7.5 percent to 10 percent of income. This was literally a tax on the poor and the sick. As introduced, the AHCA would have reduced the threshold back to 7.5 percent.


The amendments provide additional funding for refundable tax credits, but punt to the Senate the task of devising a way to spend the extra money on low-income, near-elderly taxpayers. They would eliminate the “spillover” option of depositing the balance of one’s tax credit into an HSA. And they would further reduce the threshold above which taxpayers may deduct medical expenses to 5.8 percent of income.

These changes are cosmetic. They do not alter the fact that the CBO projects the AHCA will cause average premiums to rise by 20 percent. And they do not address the root problem of excessive health care prices.

Expanding the tax credits simply throws even more federal dollars after unaffordable care. Subsidizing third-party payment, as tax credits do, makes health care less affordable, not more. Eliminating the “spillover” option further subsidizes third-party payment by guaranteeing tax-credit recipients will buy coverage than they consider desirable. Reducing the threshold for medical deductions might move in the direction of tax neutrality between direct payment and third-party payment, but only negligibly.

In each case, Congress would do more to make medical care affordable by using those resources to expand tax-free health savings accounts (HSAs).


Indeed, all the changes made by these amendments are cosmetic. When the House GOP leadership unveiled the American Health Care Act, I wrote that it “merely applies a new coat of paint to a building that Republicans themselves have already condemned.” All these amendments do is paint the shutters a different color. Even with these amendments, the AHCA would be worse than doing nothing.

Some conservatives will like that the amendments would eliminate ObamaCare’s taxes (except the Cadillac tax) one year earlier than the original bill. Yet because the AHCA gets the policy wrong, it sets the stage for higher federal spending, which will create pressure for higher taxes in the future. If conservatives want the AHCA’s tax cuts to stick, they need to revamp the health care provisions drastically. 

To make those tax cuts stick, Republicans need to improve health care. To improve health care, Republicans need to bring premiums down immediately by fulfilling President Trump’s promise to repeal ObamaCare in full; give states a fixed federal contribution to their Medicaid programs plus full flexibility to target Medicaid funds to the truly needy; and bring health care prices down for all patients by expanding HSAs.

I’ve mentioned before on this blog the strange idea apparently supported by some in the Trump administration that the U.S. government should conduct trade talks with individual EU member states, even though the EU itself has responsibility for trade policy and under EU law member states are not allowed to negotiate on these issues bilaterally.  The Trump administration view on this issue may be based on a number of factors, including a general skepticism about international institutions such as the EU.  But I suspect one reason is their misguided focus on bilateral U.S. trade deficits.  They see a big trade deficit with Germany, and they want to go after it.  

The issue came up last Friday when German Chancellor Angela Merkel met with President Trump.  Trump offered the following comment on trade with Germany:

On trade with Germany, I think we’re going to do fantastically well.  Right now, I would say that the negotiators for Germany have done a far better job than the negotiators for the United States.  But hopefully we can even it out.  We don’t want victory, we want fairness.  All I want is fairness.  

Germany has done very well in its trade deals with the United States, and I give them credit for it, but – and I can speak to many other countries.  I mean, you look at China, you look at virtually any country that we do business with.  It’s not exactly what you call good for our workers.  

When Trump says German negotiators have “done very well,” presumably he is referring to the existence of a U.S. trade deficit with Germany.  In his mind, a trade deficit means the U.S. negotiators did a bad job, and the Germans “won” the negotiation.  But as Merkel pointed out, “When we speak about trade agreements, … the European Union is negotiating those agreements for all of the member states of the European Union, … .”  So regardless of the U.S. trade balance with Germany, German negotiators did not play much of a role here.

Earlier this month (before the Merkel visit), White House Trade Council Director Peter Navarro (read more about him herespelled out the Trump view in a little more detail, during a Q & A session after a talk he gave:

Question: Let’s move to Germany now. Here’s a question about Germany. You mentioned the possibility of negotiating a trade deal with Germany. Is that a goal of the administration, and how would you do that, since Germany is a member of the EU and doesn’t have an independent trade policy?

Peter Navarro: Sure. This is the problem with Germany. It is able, basically, to use the argument that they’re in the eurozone, therefore they can’t have any kind of discussions with the United States about reducing their almost $70bn trade deficit. That may or may not be true. I think that it would be useful to have candid discussions with Germany about ways that we could possibly get that deficit reduced outside the boundaries and restrictions that they claim that they are under. But it’s a serious issue. Germany is one of the most difficult trade deficits that we’re going to have to deal with, but we’re thinking long and hard about that and I know that Angela Merkel is coming here soon, and perhaps there will be some discussions about how we can improve the German-U.S. economic relationship. And I’m sure they can teach us a thing or two about how to get more of the workforce in manufacturing.

Navarro seems skeptical of the EU’s role in conducting trade policy on behalf of EU member states, and suggested direct talks with Angela Merkel about the U.S. trade deficit with Germany.  Now, as noted above, and as Merkel indicated last Friday, EU law is pretty clear that trade policy is to be carried out by the EU, not the member states, but just for fun, I thought I would take Navarro’s reasoning to its logical conclusion.  He wants to ignore the EU, and focus on Germany.   But if we really want to identify the true source of the trade deficit, keep in mind that Germany is made up of 16 federal states.  Here’s the trade balance between the United States and each of these states:


So as you can clearly see, the “problem” is not really with Germany, but with only some of the German states.  Therefore, under the Navarro approach to trade policy, this issue is not something to be discussed with Chancellor Merkel, but rather with the heads of these particular German states.

And by the same logic, of course, it’s not necessarily a problem for the U.S. federal government either. We would need to break down U.S. trade flows for each U.S. state, and alert the relevant state Governors about their trade deficits with their German state counterparts.

Summing all this up: The overall U.S. trade deficit has not harmed the U.S. economy, bilateral trade balances are not an indicator of success or failure in a trade agreement, and data on trade balances from jurisdictions within a single economic area (i.e., the EU) takes the issue into new levels of irrelevance.  But regardless, if the Trump administration trade folks want to talk about trade policy with the Europeans (and they should), they should talk about it with the EU trade officials who are in charge of this issue.

A news story today leads with the headline “Minimum-wage hikes could deepen shortage of health aides” (h/t David Boaz). The key section (reported on ABC News):

It’s a national problem advocates say could get worse in New York because of a phased-in, $15-an-hour minimum wage that will be statewide by 2021, pushing notoriously poorly paid health aides into other jobs, in retail or fast food, that don’t involve hours of training and the pressure of keeping someone else alive.

Contained within this story is some bad economic reasoning and terminology but also an interesting, but rarely discussed, effect of minimum wages.

First, the mistake. Take the headline. The basic economics of the minimum wage tells us the raising the statutory price of labor above some equilibrium will lead to a reduction in the quantity of labor demanded. But it also says there will be an increase in the quantity of labor supplied. Far from causing a “shortage” of health aides then, raising the minimum wage leads to a surplus of labor. Raising the pay rate increases the return to working in the industry relative to being on welfare, and presuming budgets are unchanged (the article explains that most home care is paid by government programs), the quantity demanded falls at the same time. The gap that arises is precisely the “unemployment effect.”

It’s not clear then why raising a minimum wage would lead to fewer people seeking to be home care or health aides. Assuming demand is fixed, it would lead to fewer people being health care aides or health care aides being less available (shorter working hours etc). Yet that is not what the article claims—it suggests supply of available workers is falling, despite the pay-off to the job increasing.

What’s the point that the article is getting at then? It can be the case that raising a minimum wage changes wage rate differentials between industries. The article states that the average home care wage is about $11 per hour, whereas a quick Google search suggests many low-paid retail and fast food jobs may pay less than that in certain regions. If a hypothetical fast food job would pay $9 per hour in a free market and a home care job $11 per hour, then raising the statutory minimum to $15 can eliminate the differential. This makes fast food jobs more attractive on the margin, particularly given the home care training, and could mean the relative supply of workers increases in these industries compared to home care.

Indeed, there are good reasons to think that the unemployment effects will be far bigger in retail and fast food than home care. Demand is also likely to be more responsive in retail and fast food, not least because some jobs can be mechanized. It’s much easier to envisage a robot making a burger than roaming to treat elderly patients with different health needs. Given that much of home care is financed by government, one can also envisage that demand may increase as a result of a higher budget to meet increased costs associated with the minimum wage.

In short: contra the article, wage rises should raise the quantity of labor supplied, not reduce it. But compressing the wages of sectors may change the attractiveness of certain jobs at the margin. 

Puerto Rico Governor Ricardo Rossello and Federal Oversight Board Chairman Jose Carrion III will be in Washington this week to testify before Congress on the progress the Commonwealth has made since President Obama signed The Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA) into law last summer. At the time, the press heralded the legislation as a bipartisan achievement and a legislative victory for House Speaker Paul Ryan, but that declaration of victory is beginning to appear a bit premature.

Eight months later, and six weeks before the bill’s stay on litigation expires, Governor Rossello and Chairman Carrion are expected to put forth a rosy picture of the situation on the status of PROMESA. However, it’s clear that the island’s government is headed in the wrong direction, precisely because the Commonwealth has failed to adhere to the tenets of the law.

The intent of PROMESA was to help Puerto Rico resume economic growth and achieve fiscal solvency after a decade of recession and budget deficits. Once that occurred the next goal was the eventual return to capital markets: since its default on general obligation bonds—which the island’s constitution explicitly guarantees—Puerto Rico has been shut off from capital markets.

PROMESA attempted to facilitate negotiations with the island’s many creditor groups. One way it did so was by imposing a stay on any litigation related to the island’s default on its secured bond payments. The stay expires on May 1st. It also created a court-supervised debt restructuring mechanism under Title III of the Act, which congressional leaders and the Oversight Board intended to be used only if negotiations with creditors prove fruitless.

Unfortunately, the current creditor negotiations have been fruitless, and by all appearances the Puerto Rican government intends to pursue Title III come May, which would jeopardize the Commonwealth’s ability to access the markets for years to come. There are several reasons the situation has reached this point:

  • There has yet to be any serious negotiations with creditors. Congress clearly intended for Puerto Rico to negotiate with creditors in good faith under Title VI, but this has not occurred—in fact, the Commonwealth asked Congress to extend the stay on litigation even though Puerto Rico has not even begun negotiating with its creditors.
  • The fiscal plan certified by the Oversight Board last week violates PROMESA. Section 201 of PROMESA avers that the fiscal plan should “respect the relative lawful priorities or lawful liens, as may be applicable, in the constitution, other laws, or agreements of a covered territory or covered territorial instrumentality,” but the fiscal plan elevates several interests over the Commonwealth’s General Obligation bonds. Further, the plan alienates creditors by imposing only nominal reforms on the Commonwealth’s unsustainable pension obligations. It provides less than $800 million per year on debt service while allocating nearly 94% of revenue to other expenditures. The Commonwealth has also poked its bond creditors in the eye by defining almost its entire budget as “essential services,” making it difficult for any restructuring to accomplish much of anything except to reduce bond payments.
  • The Commonwealth has reneged on commitments to honor its obligations to bondholders. Earlier this year, Governor Rossello clawed back $150 million in funds set aside in a trust for General Obligation bondholders, a step required by Puerto Rico’s Constitution. In doing so he stated that the move was “the first action to comply with the general obligations since June of last year.” A week later, the governor’s representative to the Oversight Board, Elias Sanchez, said that “the trust is going to be solely for the purposes of GO payments.” Yet, just last week, the Commonwealth reneged on this commitment, saying that “We will not use one amount for certain credits and another for others. We will…use that number to renegotiate all the credits.”
  • Both the Puerto Rican Government and the Oversight Board are harming their own credibility by hewing to the tactics of Alejandro Garcia Padilla. Earlier this month, the Puerto Rican government retained the law firm Cleary Gottlieb Steen & Hamilton, agreeing to pay the firm $1.6 million through the end of June. This firm was the architect of Garcia Padilla Administration’s decision to default, in addition to advising former Argentine President Cristina Kirchner to default on its creditors. The Rossello Administration’s decision to retain Cleary’s services is yet another significant blow to its credibility and a sign that little will change when it comes to negotiating with creditors.

Bottom Line

There seems to be little hope of a near-term agreement between Puerto Rico and its various creditor groups. Declaring an impasse and accepting a de facto reorganization is clearly the preferred route for the government, as it would allow them to avoid making any hard spending decisions.

This unfortunate reality is a direct result of Puerto Rico’s lack of fealty to PROMESA, the tool Congress provided to Puerto Rico to fix itself. Puerto Rico’s actions—first under Governor Garcia Padilla and now under Governor Rossello—have damaged its credibility with markets and amount to short-term expediency over the long-run interests of the island’s residents. Congress should utilize its Oversight powers to urge Puerto Rico’s leaders to conform to PROMESA. 

There’s another installment in the ongoing saga of PHH v. CFPB, the legal case challenging the constitutionality of the newest federal agency, the Consumer Financial Protection Bureau. And this installment is a weird one. The Department of Justice has now joined in, filing a briefagainst the CFPB. Yes, the federal government is now effectively on opposing sides of this case.

If you haven’t been following the story, I have a few posts that can bring you up to speed. At this point, a panel of judges has ruled against the CFPB, and a majority of them found that the CFPB’s structure is unconstitutional. (I find it difficult to see how anyone could find otherwise.) Part of the problem with the agency’s structure, as the court found, is that it has a single head who is removable only for cause. The director is not accountable to any elected official. To cure this problem, the court decided that the director should be removable by the president at will. This would make the agency more like a traditional executive agency—like the Department of Justice, for example—and less like existing independent agencies. Although it is important to note that even most independent agencies, like the Securities and Exchange Commission, are headed by a multi-member board and the chair of that board serves as chair at the will of the president. 

Now the federal appeals court in D.C. is rehearing the case en banc. That means that all 11 of the active judges on the court will hear the case and issue an opinion together. On Friday, the DOJ filed a friend of the court brief in support of PHH.

While it is extremely rare (although not unheard of) for one part of the government to file a brief in opposition to another part, it is not entirely surprising in this case. In ruling against the CFPB in the earlier hearing, the court handed the president a new bit of power. One of the reasons that our government has three co-equal branches is to allow them to serve as checks on one another. As Judge Kavanaugh noted in his opinion for the panel in the original hearing, quoting Justice Scalia “The purpose of the separation and equilibrium of powers in general, and of the unitary Executive in particular, was not merely to assure effective government but to preserve individual freedom.” Arguably, the government filing on both sides of a case is a sign the system is working as planned. 

What does this mean for the ongoing case? Not much. It’s no surprise that President Trump would like to get rid of Director Cordray. And the brief itself raises no new arguments that weren’t already made elsewhere (in Cato’s own amicus brief, for example). But it does increase the wattage of the spotlight already trained on this case. It also sharpens this question: if the CFPB loses, does it try to appeal to the Supreme Court? In most cases, the answer would be “yes,” but the CFPB can only pursue litigation in the Supreme Court with the Attorney General’s blessing. It seems unlikely that the DOJ would bless an appeal of a case in which its side won. 

The litigation is going to be long and messy. It’s not entirely clear it will be resolved before Cordray’s term is up in 2018. It may be that the resolution is ultimately not found in either the judicial or executive branch at all, but in the branch that created this mess: Congress. Despite being constitutionally suspect (given there’s no provision for them in the Constitution), independent agencies like the Securities and Exchange Commission or the Commodity Futures Trading Commission provide a useful template. If the CFPB were changed into a multi-seat commission, and if its funding were to come through the appropriations process instead of through a demand on the Fed, much of its mischief would be curtailed. The ball is ultimately in Congress’s court on this one. Let’s hope they decide to play.

Last week Cato published a new immigration research and policy brief called “Criminal Immigrants: Their Numbers, Demographics, and Countries of Origin” that estimates the illegal immigrant incarceration rate—a subject long avoided in academic and policy research circles due to data limitations. 

Our headline finding is that both illegal immigrants and legal immigrants have incarceration rates far below those of native-born Americans—at 0.85 percent, 0.47 percent, and 1.53 percent, respectively. Excluding illegal immigrants who are incarcerated or in detention for immigration offenses lowers their incarceration rate to 0.5 percent of their population—within a smidge of legal immigrants. As a result, native-born Americans are overrepresented in the incarcerated population while illegal and legal immigrants are underrepresented, relative to their respective shares of the population. 

The relatively low number of incarcerated illegal immigrants places some immigration restrictionists in an uncomfortable position: choosing which myth to believe. The first myth is that illegal immigrants are especially crime-prone. The second myth is that there are actually two to three times as many illegal immigrants as is commonly reported. The usual number used by the government and most demographers is that there are 11 to 12 million illegal immigrants in the United States but a steady drumbeat of skeptics claim the real number is about 22 to 36 million. 

No matter how you dice the numbers, a larger illegal immigrant population in the United States means that their incarceration rate is even lower that what we report. Without adjusting for age, a total illegal immigrant population of 22 million would lower their incarceration rate to 0.56 percent using Cato’s estimate of the size of the incarcerated illegal immigrant population. Using the higher (and sillier) 36 million illegal immigrant population estimate by Ann Coulter lowers their incarceration rate to 0.34 percent. 

For the sake of argument, let me assume you do not like Cato’s numerical estimate of incarcerated illegal immigrants and you would prefer to use another estimate. The America American Survey form S2601B (2014 1-year sample) reports that there were 157,201 non-citizens in adult correctional facilities in 2014. That is the absolute maximum possible number of illegal immigrants incarcerated in that year. Using the ACS estimate lowers the illegal immigrant incarceration rate to 0.71 percent if the population is an estimated 22 million and to 0.44 percent if their total population is 36 million. 

Immigration restrictionists cannot have it both ways. They cannot assume that illegal immigrants are super-criminals and that their population in the United States is several times higher than it really is. No matter how you dice the numbers, their incarceration rate falls as their estimated population increases. For consistency’s sake, it’s time for immigration restrictionists to choose which myth they want to believe. 

Two recent stories on this subject in the New York Times remind us that, despite recent progress toward legalizing marijuana, the U.S. drug war is far from over. 

The articles support many libertarian views on drug policy: that legalization should include all drugs, not just marijuana; that the drug war disproportionately harms the poor and minorities; that prohibition erodes basic constitutional protections against unreasonable searches; that asset forfeiture laws create perverse incentives for law enforcement; and that prohibition senselessly militarizes local police.

One further interesting point is that law enforcement has its own reservations about no-knocks:

The National Tactical Officers Association, which might be expected to mount the most ardent defense, has long called for using dynamic entry [no knocks] sparingly. Robert Chabali, the group’s chairman from 2012 to 2015, goes so far as to recommend that it never be used to serve narcotics warrants.

“It just makes no sense,” said Mr. Chabali, a SWAT veteran who retired as assistant chief of the Dayton, Ohio, Police Department in 2015. “Why would you run into a gunfight? If we are going to risk our lives, we risk them for a hostage, for a citizen, for a fellow officer. You definitely don’t go in and risk your life for drugs.”



Most legal scholars agree that Supreme Court nominee Neil Gorsuch has the necessary experience, expertise, and temperament to be confirmed as Justice Scalia’s replacement.  But suppose the Democrats decide to filibuster the nomination and Republicans can’t get the 60 votes needed to break the filibuster?  If that happens, you can expect the Republicans to “go nuclear” and change the filibuster rules so that only 51 votes are required to shut off debate.  To understand what that means, here’s a short backgrounder on the filibuster:

Senate filibusters have been around since 1837.  Beginning in 1917, a cloture vote to shut off debate required a 2/3 supermajority; that was changed to 60 votes in 1975.  Sen. Strom Thurmond (D-SC) set the record with a 1957 talk-a-thon against civil rights legislation: 24 hours, 18 minutes.  Nowadays, senators need not actually speak.  They merely announce their intent to prolong debate and that triggers the 60-vote cloture rule. 

Suppose senators want to revise the 60-vote rule.  Rules can be revised by majority vote.  But suppose further that the vote on revising the 60-vote rule is itself filibustered.  According to Senate rules, if a vote to change the 60-vote rule is filibustered, it takes two-thirds of the senators to break the filibuster.  The so-called nuclear option would override that rule.

There are two versions of the nuclear option – one simple and one complicated.  First, the simple version:  On the first day of a new Congress, Senate rules don’t yet apply.  Therefore, new rules can be adopted – and debate can be halted – by the default procedure, which is majority vote.  After the first day, however, that option isn’t available.

The second version is more complicated; but it can be used at any time.  One party, let’s say the Republicans, moves to change the 60-vote cloture rule to 51 votes.  The Democrats filibuster the rule-change – which means it would take 67 votes to close debate.  Republicans then go for the nuclear option – which is a point-of-order, upheld by the presiding officer, declaring that the 67-vote requirement is unconstitutional.

In 2005, it was the Republicans threatening the nuclear option to stop Democrats from blocking confirmation of George W. Bush’s judicial nominees.  In response, the Democrats said they’d shut down all Senate business.  Then-Senator Obama (D-IL) said, “I urge my Republican colleagues not to go through with changing these rules.  In the long run, it is not a good result for either party.”  Eventually, the confrontation was diffused when the Gang of 14 – seven senators from each party – agreed not to filibuster judicial nominees, except in extraordinary circumstances.  So, the Republicans never did use the nuclear option.  But eight years later, the Democrats had gained control of the Senate.  Majority leader Harry Reid (D-NV), who had previously opposed any effort to change the Senate’s rules, abruptly decided to support the nuclear option that he had argued vigorously against. 

As a result, we now have a new rule:  the minority cannot filibuster executive appointments and federal judicial nominees, except for Supreme Court nominees.  Of course, with the Republicans back in control of the Senate, the rule change backfired on Reid and the Democrats.  Not only was it an unexpected gift to the Republicans, but it also opened the door to a second use of the nuclear option, if necessary, to ensure confirmation of Trump’s Supreme Court nominees.  And that’s what will happen if the Democrats try to stop Neil Gorsuch. 

For what it’s worth, here’s my view of the matter:  The gripe against the filibuster is that it’s undemocratic because it stifles majority rule.  That misses the point.  We are a republic, not a democracy, and our Constitution is intentionally undemocratic.  The Framers were concerned about tyranny by the majority.  Recent majorities, on both sides of the aisle, have proven that those concerns are justified.  Majority parties have killed bills in committee, refused floor votes, and blocked amendments – essentially denying the minority any meaningful role.  The filibuster is a partial counterweight to those problems.

Furthermore, the Framers wrote a Constitution replete with protections that limit majority rule.  To name just a few: we have limited and enumerated federal powers, two senators from each state, the electoral college, and the Bill of Rights.  And note that the Constitution requires a 2/3 vote to propose constitutional amendments, override vetoes, approve treaties, impeach the president, and expel a congressman.  The filibuster’s supermajority requirement may be undemocratic, but that’s precisely why we have it.

Without the filibuster, we would be laboring under a federal government far larger than today’s behemoth.  Thanks to the filibuster, senators can occasionally throw a few grains of sand in the ever-grinding wheels of the regulatory and redistributive state.  Milton Friedman captured that point when he said, “I just shudder at what would happen to freedom in this country if the government were efficient.”  He was right.  The filibuster is a valuable safeguard.  We’d be better off if it were codified as part of the Constitution – especially for votes on significant expenditures and tax increases – and also for confirmation of federal judges, who have lifetime tenure on the bench.  Unless and until we establish judicial term limits, it’s little enough to insist that lifetime appointees be approved by 60 senators. 

More likely, however, the availability of the filibuster for Supreme Court nominees will be short-lived.

The New York Times has a special investigative report about the militaristic drug raids that are now happening every day in the United States. 

Here is an excerpt:

As policing has militarized to fight a faltering war on drugs, few tactics have proved as dangerous as the use of forcible-entry raids to serve narcotics search warrants, which regularly introduce staggering levels of violence into missions that might be accomplished through patient stakeouts or simple knocks at the door.

Thousands of times a year, these “dynamic entry” raids exploit the element of surprise to effect seizures and arrests of neighborhood drug dealers. But they have also led time and again to avoidable deaths, gruesome injuries, demolished property, enduring trauma, blackened reputations and multimillion-dollar legal settlements at taxpayer expense, an investigation by The New York Times found.

For the most part, governments at all levels have chosen not to quantify the toll by requiring reporting on SWAT operations. But The Times’s investigation, which relied on dozens of open-record requests and thousands of pages from police and court files, found that at least 81 civilians and 13 law enforcement officers died in such raids from 2010 through 2016. Scores of others were maimed or wounded.

It’s terrific reporting that covers so many of the problems: the unnecessary violence, the dilution of constitutional safeguards, the flimsy police investigative work, the cover-ups when things go bad, and the lawsuits that will ultimately burden taxpayers.

Cato has been sounding the alarm on this trend since 1999, with the publication of “Warrior Cops.” That was followed by Radley Balko’s study, “Overkill,” and there have been countless events, media appearances, opinion articles, and book chapters since. Indeed, one of the NYT’s own reporters, Matt Apuzzo, acknowledged a few years ago that “the criticism of the so-called militarization of police has largely come from libertarian quarters for several years. They have kind of been the lone voice on this, folks like the Cato institute.” 

For related Cato scholarship, go here.



The moment has arrived: this week, we finally have Supreme Court confirmation hearings before the Senate Judiciary Committee. This is the culmination of a series of unusual political events that took place after Justice Antonin Scalia’s untimely death in February 2016.

Indeed, when Scalia died, President Barack Obama had almost a year left in office, so it seemed likely that he would get to select the Court’s next justice. But it was an election year—and the last time that a Senate controlled by the party not in the White House confirmed a Supreme Court nominee to a vacancy that arose during a presidential election year was 1888. Accordingly, Republicans vowed not to consider any high-court nominee until after the election. In a politically polarized nation that had reelected a Democrat to the presidency in 2012 and then gave Senate control to the GOP in 2014, they were determined to let the people have another say regarding who would get to appoint the next justice.

Nevertheless, Obama nominated Judge Merrick Garland, a seemingly uncontroversial pick designed to pressure Senate Republicans to cave. As Donald Trump became the Republican nominee and the electoral winds blew harder against the GOP, Senate Majority Leader Mitch McConnell’s #NoHearingsNoVotes gambit (which I supported) seemed increasingly ill-advised. But the unlikely happened: Trump not only won the presidency, but he picked his nominee from a gold-plated list of 21 candidates that he had issued during his campaign.

Since Judge Neil Gorsuch of the Denver-based U.S. Court of Appeals for the Tenth Circuit was nominated on January 31, his chances of joining the high court have only improved. A recent survey showed that 91 percent of Democratic congressional staffers expect him to be confirmed, as Democratic senators have failed to find any salient items that would merit disqualification. Sure, activists will attempt to tar Gorsuch as anti-women, anti-worker, anti-this-that-and-the-other, but the mild-mannered originalist is anything but the cartoon Monopoly Man this caricature tries to paint. And the argument about how this is a #StolenSeat isn’t going anywhere because that was litigated at the election.

So this may all be anti-climactic. As I wrote in The Federalist on Friday:

To be sure, such hearings have become kabuki theater. Senators from the president’s party toss softballs that let the nominee display his or her erudition, while opposing senators ask “gotcha” questions that anybody skilled enough to be nominated can evade with ease. Indeed, the nominee in the supposed hot seat has been trained for weeks to talk a lot while revealing very little, literally running out the clock allotted for each senator’s questions while executing what’s been called the (Ruth Bader) Ginsburg “pincer movement”: refusing to analyze hypothetical cases because those issues might come before the court and then declining to discuss broader doctrinal issues because judges should only deal in specifics.

As one observer put it: “When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public.” Untenured law professor Elena Kagan was not wrong in writing that back in 1995, even if the would-be justice recanted her emperor-has-no-clothes logic when she herself became a nominee.

But it doesn’t have to be that way. This is a singular chance to educate the American people about constitutionalism and the legal process. Senators could ask real questions, about the meaning of different constitutional or statutory provisions divorced from any pending or hypothetical cases. They can try to gauge whether the nominee’s commitment to stare decisis (not overturning incorrect but longstanding precedent) is relatively strong (like Scalia) or less so (like Justice Clarence Thomas). Especially given Gorsuch’s Oxford doctorate in legal philosophy, they can get at some deeper jurisprudential or philosophical issues without asking the nominee to either comment on pending cases (like the immigration executive orders) or generate out-of-context fodder for the evening news (anything about Roe v. Wade).

For possible questions, read the rest of my piece, or George Will’s latest column, or a more detailed document that I prepared; I wonder if any senator will hit these detailed questions. And in last fall’s National Affairs, Randy Barnett and Josh Blackman have a longer essay about how to make confirmation hearings great again.

Finally, here’s a sketch of the logistics. On Monday, starting at 11 am, we’ll get opening statements from the senators—this will likely show what lines of attack the Democrats plan to pursue—plus Gorsuch’s swearing-in and opening statement. Tuesday and Wednesday will be the senators’ actual questioning of the nominee: two, maybe three rounds. Thursday will feature panels of witnesses testifying for and against Gorsuch. (I won’t be there because will be speaking on this very subject at Michigan State Law School, but catch my views Tuesday and Wednesday evenings on PBS NewsHour and Friday morning on Fox News, among other media.)

It’s game time!

Last year, I put forward a statutory argument that President Trump’s proposal to ban immigrants from several majority Muslim countries was illegal because it violated a 1965 law that specifically banned discrimination against immigrants based on race, gender, nationality or place of residence or birth. On the night that the original executive order was released, I wrote an op-ed in the New York Times laying out the case again.

Now, finally, a ruling from a federal district court judge in Maryland addressed the issue, agreed with me in part, and partially stayed the executive order on this basis. This afternoon, the Trump administration appealed the ruling to the Fourth Circuit. The portion of ruling relevant to the statutory argument states:

Plaintiffs argue that by generally barring the entry of citizens of the Designated Countries, the Second Order violates Section 202(a) of the INA, codified at 8 U.S.C. 1152(a) (“1152(a)”), which provides that, with certain exceptions:

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.

Section 1152(a) was enacted as part of the Immigration and Nationality Act of 1965, which was adopted expressly to abolish the “national origins system” imposed by the Immigration Act of 1924, which keyed yearly immigration quotas for particular nations to the percentage of foreign-born individuals of that nationality who were living in the continental United States, based on the 1920 census, in order to “maintain, to some degree, the ethnic composition of the American people.” H. Rep. No. 89-745, at 9 (1965). President Johnson sought this reform because the national origins system was at odds with “our basic American tradition” that we “ask not where a person comes from but what are his personal qualities.”

…although the Second Executive Order speaks only of barring entry, it would have the specific effect of halting the issuance of visas to nationals of the Designated Countries. Under the plain language of the statute, the barring of immigrant visas on that basis would run contrary to 1152(a).

This ruling is a huge win and is the first to directly deal with the statutes at play. In another case in Washington (Ali v. Trump), the plaintiffs made the same arguments to Judge James Robart (who earlier in Washington v. Trump suspended the implementation of the first order). Judge Robart also appeared to agree with the plaintiffs on this point during oral arguments. The plain language of the statute forbids discrimination based on nationality in the issuance of immigrant visas (for people coming to the United States to live permanently).

Rejecting the Government’s Arguments

The court dispensed with some of the arguments from the government that I have previously addressed as well. The administration’s primary argument is that it has the statutory authority under 8 U.S.C. 1182(f) to “suspend entry” of “any class of aliens” that the president deems a “detriment to the United States.” Of this argument, the judge writes:

Section 1152(a) requires a particular result, namely non-discrimination in the issuance of immigrant visas on specific, enumerated bases. Section 1182(f), by contrast, mandates no particular action, but instead sets out general parameters for the President’s power to bar entry. Thus, to the extent that sections 1152(a) and 1182(f) may conflict on the question whether the President can bar the issuance of immigrant visas based on nationality, section 1152(a), as the more specific provision, controls the more general section 1182(f). See Edmond v. United States, 520 U.S. 651, 657 (1997) (“Ordinarily, where a specific provision conflicts with a general one, the specific governs.”); United States v. Smith, 812 F.2d 161, 166 (4th Cir. 1987).

I made this point earlier that the more specific statute should be seen as limiting the more general statute. Section 1152(a) not only requires a certain result, but requires it for a single groups of “aliens” (i.e. immigrant visa applicants). The ruling continues:

Moreover, section 1152(a) explicitly excludes certain sections of the INA from its scope, specifically sections 1101(a)(27), 1151(b)(2)(A)(i), and 1153. 8 U.S.C. 1152(a)(1)(A). Section 1182(f) is not among the exceptions. Because the enumerated exceptions illustrate that Congress “knows how to expand ‘the jurisdictional reach of a statute, ‘” the absence of any reference to section 1182(f) among these exceptions provides strong evidence that Congress did not intend for section 1182(f) to be exempt from the anti-discrimination provision of section 1152(a).

I made this point here, noting that not only does it list exceptions, it lists them with unnecessary added emphasis: “except as specifically provided”. Nonetheless, the government argued that it could discriminate based on nationality by virtue of an exception to the non-discrimination provision in subparagraph (B) of section 1152(a)(1) that states, “Nothing in this paragraph shall be construed to limit the authority of the Secretary of State to determine the procedures for the processing of immigrant visa applications or the locations where such applications will be processed.” The government argued that its ban was a “procedure.” On this, the ruling states:

Even if the Court were to construe Plaintiffs’ claim to be that the State Department’s anticipated denial of immigrant visas based on nationality for a period of 90 days would run contrary to section 1152(a), the text of section 1152(a)(1)(B) does not comfortably establish that such a delay falls within this exception. Although section 1152(a)(1)(B) specifically allows the Secretary to vary “locations” and “procedures” without running afoul of the non-discrimination provision, it does not include within the exception any authority to make temporal adjustments. Because time, place, and manner are different concepts, and section 1152(a)(1)(B) addresses only place and manner, the Court cannot readily conclude that section 1152(a)(1)(B) permits the imminent 90-day ban on immigrant visas based on nationality despite its apparent violation of the non-discrimination provision of section 1152(a)(1)(A).

Even the government had trouble initially getting out this argument with any certitude. Its brief in Washington v. Trump merely stated that the language of subparagraph by of section 1152(a)(1) “suggests that maybe” the ban could be viewed as “procedure.” It was hesitant with good reason.

I have previously addressed this argument by noting that a “procedure for processing” cannot mean “no procedure for no processing” as in the case of an outright ban. Moreover, if section 1152(a)(1)()A) does not apply to the decision to issue or deny a visa, then it would apply to nothing at all. Section 1152(a)(1)(B) was added to address a 1995 D.C. circuit decision that used the non-discrimination rule to stop a requirement that Vietnamese in Hong Kong return to Vietnam to apply for immigrant visas. This legislative history certainly reflects a very narrow purpose. Thus, when Congress added the exception for procedures or locations in subparagraph (B), it specifically left subparagraph (A) in place, demonstrating its intention that it still carry weight.

To these facts, the court adds that Congress specifically listed changes in manner and location of processing, but left out time. If “manner” (procedures) was to include all three, the location language would be unnecessary. A basic cannon of interpretation holds that courts should not read statutes to include “surplusage” or words without effect. This interpretation is reinforced by the fact that section 202(a)(1)(A) bans discrimination in visa issuance, which is exactly what the executive order controls, not procedures or places.

Finally, the Government asserts that the President has the authority to bar the issuance of visas based on nationality pursuant to Section 215(a) of the INA, codified at 8 U.S.C. 1185(a) (“section 1185(a)”), which provides that:

Unless otherwise ordered by the President, it shall be unlawful for an alien to depart from or enter or attempt to depart from or enter the United States except under such reasonable rules, regulations, and orders, and subject to such limitations and exceptions as the President may prescribe.

8 U.S.C. 1185(a)(1). As support for this interpretation, the Government cites President Carter’s invocation of 8 U.S.C. 1185(a)(l) to bar entry of Iranian nationals during the Iran Hostage Crisis in 1979. Crucially, however, President Carter used section 1185(a)(1) to “prescribe limitations and exceptions on the rules and regulations” governing “Iranians holding nonimmigrant visas,” a category that is outside the ambit of section 1I52(a). 44 Fed. Reg. 67947, 67947 (1979). The Government has identified no instance in which section 1185(a) has been used to control the immigrant visa issuance process.

This is exactly the point that I made in my piece in the New York Times about the Carter administration’s actions. I further noted in my first post that the Carter administration did not implement this policy for people that it believed carried valid visas. It only implemented this policy with respect to those that it was uncertain whether the visas were valid or not because the Iranian revolutionaries had taken over the embassy in Tehran that housed the visa printing machine.

The government have also urged the courts to see this executive order as a brief “delay in visa decision-making.” But there is nothing in the category prohibition subparagraph (A) to indicate that a decision not to issue based on nationality could be done on a temporary basis, but more importantly, the executive order makes absolutely clear that the ban is indefinite, and that the 90 days is just the beginning. The government has already restarted the 90-day clock once, and each day that passes drains water from this claim.

Only a partial victory (but that could still allow total victory)

However, the ruling is only a partial victory for the plaintiffs because the court implausibly ruled that section 1182(f) impacts only the “entry of aliens” into the country, not “visa issuance.” Neither the government nor the plaintiffs agree with this view. Both argued against it also during oral arguments in the Ali v. Trump case when Judge Robart appeared to want to go this direction. The U.S. attorney explained, “The visa process is one aspect of the entire entry process.”

Not to argue the government’s case, but section 1201 does apply 1182 to the visa issuance process without limiting it to certain subsections. Every single administration—including this one—has interpreted 1182(f) to restrict both visa issuance and entry. That is why they were all printed in the Foreign Affairs Manual for consular officers. The ruling implies that all prior orders barring visas to people covered by section 1182(f)—including war criminals and members of military juntas, etc.—were improper because it determined that the section did not apply to visa issuance. This is much greater departure from precedent and practice than anything the plaintiffs urged. It also implies that it would also be improper for the executive order to restrict visas to nonimmigrants under section 1182(f) as well.

Moreover, this view of section 202 implies that Congress was very concerned with unbiased issuance of documentation, but not concerned with its immigration consequences. This is totally at odds with the statutory scheme and the legislative history, which clearly point to the intention to prevent the distribution of immigrants from being skewed based on nationality beyond what Congress specifically allowed. No need to go into the lengthy and definitive legislative history on this. The rest of section 202 which contains the per-country visa caps clearly is not intending to create an equal distribution of visa documents among the nations. It is intending to create an equal distribution of immigration.  

This view is reinforced by the fact that implies that the government is free to discriminate at all in the issuance of status—which can occur either at the border at entry or inside the United States—and that Congress was okay with such discrimination. If you are already in the United States, you are protected from discrimination, but outside, you are not. Section 1255 clearly instructs Secretary of State to treat status determinations against the visa cap under section 1152, demonstrating that Congress wanted those determinations—whether they happen at the border or inside the United States—to be treated the same as visa issuance determinations.

In any case, this split-the-baby approach creates an absurd result that Justice Scalia among others have urged courts to avoid. Under this decision, the government would be required to allow tens of thousands of immigrants to board planes and arrive at U.S. airports, creating exactly the type of chaos that the first order did. Hopefully, someone points out to these judges that this result is entirely at odds with the legislative scheme, and they will prevent this from occurring. No one—the government nor the plaintiffs—believe that this outcome would be just.

Fortunately, because the court also found that the executive order violates the First Amendment of the Constitution, we are protected from this situation. If it did arise, habeas corpus might be used to free the individuals, as it was in January, and provide a loophole to jump past the entry restrictions. This would be a pleasant, if not strange, way to arrive at victory.

Martin Feldstein has a new short paper out with some thoughts on a relatively under-researched subject: Why is Growth Better in the United States than in other Industrial Countries?

He begins:

In 2015, real GDP per capita was $56,000 in the United States. On a purchasing power basis, the real GDP per capita in the same year was only $47,000 in Germany, $41,000 in France and the United Kingdom, and just $36,000 in Italy. So the official measures of real GDP clearly point to the cumulative result of higher sustained real growth rates in the United States than in the major industrial countries of Europe and Asia.

Over the very long term, this is a truism. In order for the U.S. to be that much richer, it must have experienced faster real GDP per capita growth than comparator countries. We know from figures collated by the Maddison Project that the U.S. had around half the level of GDP per capita of the UK in the early 18th century, but by 1900 it was overtaking the UK as the richest country by income per head, and has remained in that leading position for almost all the period since.

But showing higher levels of income does not necessarily mean that the U.S. growth of GDP per capita was higher than other countries over more recent periods.

Figure 1 outlines the growth performance of G7 countries since 1970. As can be seen, U.S. average annual real GDP growth has indeed been higher than the rest, but average annual real GDP per capita growth was actually stronger in Japan, the UK and Germany over that period. In other words, the U.S. relative real GDP growth strength over that period is primarily about demographics.

Figure 1: Average annual real GDP and real GDP per capita growth, 1970-2015.


Source: World Bank Databank

The U.S. is still richer than the other countries, of course. That is, the level of real GDP per capita is still higher, but that gap already existed in 1970. Some other countries have grown more quickly since then from a lower base. In 1970, Japan’s real GDP per capita was 79 percent of the U.S., whereas in 2015 it was 91 percent. For the UK, the figure has increased from 77 percent to 80 percent. But no country appears to be fully converging.

The real question then appears to be this: though individual countries have converged somewhat towards the U.S. during periods since 1945, why does there seem to be a permanent gap in the level of GDP between the U.S. and other major economies?

In other words, what structural features in the U.S. help to make it permanently richer than other major economies?

Feldstein posits 10 possible explanations:

  1. An entrepreneurial culture
  2. A developed system of equity finance and local banks
  3. World class research universities
  4. Relatively free labour markets
  5. A growing population
  6. Culture and policy that encourages hard work and long hours
  7. Abundant energy combined with private mineral rights
  8. A favorable regulatory environment
  9. A smaller size of government than in other industrial countries
  10. A decentralized political system in which states compete

Whole theses could be written about each. But I’ll limit myself to seven quick comments here:

  1. It’s incredibly difficult to measure the individual effects of these things on growth, not least because they are inter-connected too in complex ways. That America was founded by self-selecting migrants might have brought with it a more entrepreneurial and harder-working culture, and also one which then leads to a greater acceptance for fairly liberal migration in future. A smaller government, with a lower tax burden increases the return to entrepreneurial activity. And so on.
  2. A lot of these explanations beg other questions, the most common of which is, “yes, but why?” What is the cultural, institutional or policy reason for the U.S. having 15 of the highest ranked 25 universities in the world, for example?
  3. There are potentially omitted explanations too, such as the sheer size of the internal American market under common language and customs (compare this to heavy national and cultural barriers in Europe even within the single market), and having a system of common law.
  4. Some of Feldstein’s explanations need not necessarily be “good things” from a libertarian perspective. For example, if people in the U.S. simply have a relative preference for working longer hours compared to leisure than the French, then the fact Americans work longer hours is not “better”. (Of course, if the difference is down to damaging policies, then that is another matter).
  5. Most of the explanations at some point come back to, as Feldstein puts it, “the general intellectual and political climate of the country” and how this affects the economy both directly and indirectly. Policies and systems of government do not fall manna from heaven, but tend to change over long periods to reflect ideas.
  6. Though the U.S. still has relative advantages over other major economies, it clearly faces significant challenges in many of these areas. Tyler Cowen’s new book highlights how the U.S. is becoming less entrepreneurial on many measures. Opposition to liberal migration seems to be hardening. Younger people seem to be more open to the idea of socialism, which could in future affect 4, 8 and 9 negatively.
  7. The experience of my own country ceding the forefront of the technological frontier suggests these relative advantage need not always hold. In the past 15 years, that the U.S. is doing relatively well largely reflects more significant relative deterioration in other countries than its own success.

Global Science Report is a feature from the Center for the Study of Science, where we highlight one or two important new items in the scientific literature or the popular media. For broader and more technical perspectives, consult our “Current Wisdom.”

A story this week that has been making the rounds in the climate-media complex finds that natural variability is responsible for perhaps as much as 50% of the summertime decrease in Arctic sea ice that has taken place over the past 30 years or so (anthropogenic climate change is the presumed factor in the remainder).

This isn’t new. The last (2013) science report from the UN’s Intergovernmental panel on climate change said:

Using climate model simulations from the NCAR CCSM4…inferred that approximately half (56%) of the observed rate of decline from 19979 to 2005 was externally (anthropogenically) forced, with the other half associated with natural internal variability.

Ten years ago, a study was conducted by a team led by Julienne Stroeve that looked at the observed rate of Arctic sea ice loss and compared it to climate model expectations. [A side note here: the loss of Arctic sea ice (which is floating ice) does not lead to sea level rise just as the melting of ice in your cocktail doesn’t lead to your glass overflowing]. What Stroeve and colleagues found was the Arctic sea ice was being lost at a far brisker pace than climate models had predicted (Figure 1).

Figure 1. Arctic sea ice extent from observations (red think line) and climate models (colored spaghetti), from Stroeve et al. (2007).


Is this an instance where human-caused climate change is progressing at a pace that is “worse than expected”?


In the 10 years since the Stroeve study, most research has blamed natural variability for the faster-than-modeled pace of Arctic ice loss. The new study, led by University of California Santa Barbara’s Qinghua Ding, announced the same this week. Co-author Axel Schweiger explained to the Christian Science Monitor that there were two possible reasons for the existing model/observation discrepancy:

“1) [the models] are not sensitive to greenhouse gases because they oversimplify physical processes [i.e., climate change is worse than expected] or 2) natural variability has added to the observed trend and the models are fine, [but] because by design of the experiment…they cannot match the observed trend.”

He then added:

“Our results suggest that [natural variability] is a good explanation for the discrepancy”

The new study was rather unique in that the research team attempted to quantify the role of natural variability (acting primarily through circulation changes that helped both to directly usher ice out of the Arctic as well as to introduce warm water (from more southerly latitudes) into it) versus that of anthropogenic climate change. As to what they found the authors write:

“Internal variability dominates the Arctic summer circulation trend and may be responsible for about 30–50% of the overall decline in September sea ice since 1979.”

It is this result that the press reports tended to focus on. But in doing so, they missed an important implication of this finding—one that we first touched on back in 2011. It is this: Arctic ice loss is a positive feedback on temperature as the loss of ice (both acting to reduce the area of a highly reflective surface as well as exposing a larger area of warm water) leads to rising temperatures which leads to more ice loss, and so on. This is the primary reason why the warming in the Arctic is supposed to exceed the global average warming rate.

But if a sizeable proportion of the ice loss is being caused by natural variability (and not greenhouse gas emissions), then some proportion of the warming observed over the past 30 years must be caused by the same forces of natural variability. 

This means that when comparing the rates of observed warming with the rates of warming expected by climate models, that natural variability acting on Arctic sea ice has been making the models seem to be closer to reality than they actually are. In other words, this form of natural variability is (fortuitously) acting to improve (apparent) model/observed agreement.

And considering that the climate models are already performing poorly as it is, the new finding means that they are actually faring even worse than has been generally realized. And accounting for this strengthens the case for a lukewarming future from greenhouse gas emissions.

Ring up another strike against the climate models, and another reason why basing government policy on their output is a bad idea.



Ding, Q., et al., 2017. Influence of high-latitude atmospheric circulation

changes on summertime Arctic sea ice. Nature Climate Change, doi:10.1038/nclimate3241.

Stroeve, J., et al., 2007. Arctic sea ice decline: Faster than forecast. Geophysical Research Letters, 34, L09501, doi:10.1029/2007GL029703.

The Trump administration’s North Korea policy started taking shape this week. On his first official trip to East Asia, Secretary of State Rex Tillerson declared an end to the Obama administration’s policy of strategic patience, ruled out negotiations with North Korea unless the North gave up nuclear weapons, and said that the United States would not rule out military action. Despite Tillerson’s attempt to put daylight between the Obama administration and the Trump administration, insisting on denuclearization and not ruling out the use of military force have been features of U.S. policy toward North Korea under both Bush and Obama. And this is precisely why the Trump administration’s approach, as it stands now, has little chance of succeeding.

Reining in North Korea has rapidly risen to the top of the Trump administration’s list of international challenges. In February, Pyongyang tested a solid-fueled ballistic missile with a tracked transporter erector launcher that will be very difficult for the United States to track and target in a preemptive attack. The following month, during the annual U.S.-South Korean Foal Eagle military exercises, which North Korea views as a dress rehearsal for an invasion, the North launched at least four ballistic missiles into the Sea of Japan simulating a nuclear attack against a U.S. Marine Corps air station at Iwakuni. Jeffrey Lewis of the Middlebury Institute for International Studies at Monterey succinctly described the Foal Eagle/missile launch interaction, “If we are practicing an invasion, they are practicing nuking us to repel that invasion.”

The (Limited) Role of China

The amount of pressure that the Trump administration may place on China could distinguish its approach from previous administrations. However, the assumption that China is the only roadblock to solving the North Korea problem is seriously flawed. Threatening to increase regional ballistic missile defenses if Beijing doesn’t pressure Pyongyang or sanctioning Chinese financial institutions that do business with North Korea create costs for China to contend with. But these costs are not likely to outweigh the strategic value that China places on North Korea as a buffer state.

Moreover, even if Beijing’s strategic calculus did change and it wanted to exert more pressure on Pyongyang’s behavior, its ability to do so is limited for two reasons.

First, China’s ability to influence Kim Jong Un’s behavior via diplomacy or some other form of soft power is very constrained. Chinese-North Korean relations have deteriorated under Kim Jong Un. He has eliminated several officials that were pro-China, most notably his uncle Jang Song Thaek, who was executed in December 2013. According to a February 2017 article in the New York Times, “some Chinese analysts say [China-North Korea relations] are at their lowest point since the founding of the North as a separate country after World War II.”

Second, North Korea’s nuclear weapons give it an insurance policy against regime change. If China is unable to influence Kim Jong Un, then removing him and installing a new leader may be the next “best” option for defusing the current spiral of tensions. Removing Kim in a targeted strike could succeed, but if a leadership vacuum leads to domestic instability then China could face other problems like a refugee crisis or the danger of “loose nukes.” A larger-scale regime change attempt, similar to the U.S. invasion of Iraq in 2003, would be vulnerable to nuclear attacks. While China is developing ballistic missile defense capabilities, they are probably not sophisticated enough to offer an acceptable degree of protection against North Korean missiles.

Influencing Kim’s behavior or removing him from power are not the only coercive options available to China, but they have the best chance of producing the United States’ political objective of denuclearization. These options are also unrealistic given the high costs of implementing them for uncertain benefits. If U.S. policymakers see pressuring China as the means to an end, then the Trump administration would have to lower its expectations of what China is willing and able to do vis-à-vis North Korea. However, Tillerson’s recent statements suggest that Trump will not be willing to back down from the goal of North Korean denuclearization.

Hoping for a Hail Mary

The North Korea problem is intractable because all of the players involved are unwilling to make the big political moves necessary to break the status quo. The United States maintains the unrealistic goal of denuclearization and advertises its willingness to engage in preemptive strikes against North Korea. This encourages the North to see nuclear weapons, and a willingness to use them first in a conflict, as the key to its survival. China makes peace offers that it knows are unacceptable to the United States and its allies while the United States pressures China to do more to constrain North Korea that Beijing is unable and unwilling to do. Finally, South Korea and Japan, without nuclear deterrents of their own, develop military technology and doctrines that would allow them to engage in preemptive strikes in order to limit the damage they would face from a North Korean attack.

This is a recipe for crisis instability and diplomatic deadlock that could result in disaster. One of the parties involved needs to take the initiative and throw a diplomatic Hail Mary to try to break the impasse and get the region to step back from the brink. Bilateral negotiations between the United States and North Korea, a U.S.-China agreement to withdraw all U.S. troops from South Korea in exchange for Chinese-led regime change and stabilization of the North, and South Korea abandoning its plans for preemptive strikes are potential examples.

Of course, a diplomatic Hail Mary would be a massive risk. Breaking the status quo would require one or more parties to accept high costs, and any plan could fail. But if the parties involved stay the course it is difficult to see how the North Korea problem is resolved without catastrophe. 

Ad hominem has always been a feature of politics, but Senator John McCain (R-AZ) elevated it to a new level earlier this week. The incident occurred when McCain came to the Senate floor to ask for unanimous consent to move forward on a vote formally bringing Montenegro, a small country in the Balkans, into the NATO alliance. Senator Rand Paul (R-KY) objected. McCain responded by suggesting Paul was a traitor to his country and accusing him of “working for Vladimir Putin.”

McCain seemed particularly incensed that Paul objected without explaining his reasons. As reported at the Daily Beast:

“I note the senator from Kentucky leaving the floor without justification or any rationale for the action he has just taken. That is really remarkable, that a senator blocking a treaty that is supported by the overwhelming number—perhaps 98, at least, of his colleagues—would come to the floor and object and walk away.”

He then directly connected Paul to the Russian government: “The only conclusion you can draw when he walks away is he has no justification for his objection to having a small nation be part of NATO that is under assault from the Russians.

“So I repeat again, the senator from Kentucky is now working for Vladimir Putin.”

Paul later issued a statement in response:

“Currently, the United States has troops in dozens of countries and is actively fighting in Iraq, Syria, Libya, and Yemen (with the occasional drone strike in Pakistan)…In addition, the United States is pledged to defend 28 countries in NATO. It is unwise to expand the monetary and military obligations of the United States given the burden of our $20 trillion debt.”

That seems like a reasonable position to hold, and certainly not one that requires Paul to be a Russian stooge.

Indeed, many of America’s most reputable officials and academics have opposed post-Cold War NATO expansion for substantive reasons. George Kennan, perhaps our most famous Cold War diplomat and widely considered to be the father of the United States’ containment strategy, famously opposed NATO expansion in the 1990s, writing in the New York Times that expanding NATO would be a “fateful error” that would “inflame the nationalistic, anti-Western and militaristic tendencies in Russian opinion” and “restore the atmosphere of the cold war to East-West relations.” Like Senator Paul, Kennan also worried about the problems of credibility and overextension. Would McCain accuse Kennan of treason?

In 1995, a group of almost two dozen retired Foreign Service, State Department, and Department of Defense officers who served during the Cold War signed an open letter opposing NATO expansion on grounds similar to Paul and Kennan. They argued it risked exacerbating instability and “convincing most Russians that the United States and the West are attempting to isolate, encircle, and subordinate them.” The signatories included Paul H. Nitze, former Secretary of the Navy and Deputy Secretary of Defense, as well as Jack F. Matlock, Jr., former Ambassador to the USSR, and John A. Armitage, former Deputy Assistant Secretary of State for European Affairs. Were these gentlemen also secret Russian moles?

Within the academic international relations literature, there are a host of reasons to be skeptical of the wisdom of NATO expansion. Contrary to advocates of expansion, there is little reason to believe NATO expansion spreads democracy. Furthermore, scholars widely acknowledge that, in an attempt to expand Western security cooperation and deter Russian assertiveness in Eastern Europe, NATO expansion feeds Russian insecurities and provokes Moscow to take actions to preserve its sphere of influence in its near abroad. As Jonathan Masters of the Council on Foreign Relations explains, Putin cited NATO expansion to justify Russia’s military interventions in Georgia and Ukraine, a “clear signal of Moscow’s intentions to protect what it sees as its sphere of influence.”

Beyond the classic security dilemma, NATO expansion does not serve U.S. interests. Expanding security commitments to more European states puts U.S. credibility on the line with little to no strategic benefits in return. What happens in Montenegro does not affect our security as a nation, except that by taking on additional responsibilities to defend other countries, we risk being sucked into unnecessary conflicts that could otherwise be avoided. As MIT’s Barry Posen explains, “Once committed to defend allies everywhere, a state becomes obsessed with its political and military prestige, and vulnerable to the claim that ‘small’ wars must be fought in the hope of deterring large ones. This is especially true when the actual strategic value of these allies is modest.”

Notwithstanding Russia’s reprehensible actions in places like Georgia and Ukraine, Europe is a relatively benign security environment that doesn’t need to be under the American security umbrella. To the extent that Europe needs military capabilities to deter Russian aggression, the region is rich and powerful enough to provide for its own security.

It would be a shame if sensible, earnest, and well-informed perspectives continue to be shut out of the debate by slanderous accusations that opposition to NATO expansion is a signpost for treason.

Of the many questions reporters asked Janet Yellen on Wednesday, at her press conference following the FOMC’s decision to raise the Fed’s policy rates, my favorite was the very first, posed by the Financial Times’ U.S. Economics Editor, Sam Fleming.

Here is Mr. Fleming’s question:

[You’ve stated that the Fed wants to delay*] balance sheet normalization until [interest rate*] normalization is well under way. Could you give us some sense about “what well under way” means, at least in your mind — what kind of hurdles are you setting, what kind of economic conditions would you like to see, is it a matter of the level of the short term federal funds rate as being the main issue? What kind of role do you see the role of the balance sheet playing in the mobilization process over longer term? Is it an active tool or passive tool? Thanks.

And here is Chair Yellen’s response:

Let me start with the second question first. We have emphasized for quite some time that the committee wishes to use variations in the fed funds rate target or short term interest rate target as our key active tool of policy. We think it’s much easier, in using that tool, to communicate the stance of policy. We have much more experience with it, and have a better idea of its impact on the economy. So, while the balance sheet asset purchases are a tool that we could conceivably resort to if we found ourselves in a serious downturn where we were again up against the zero bound, and faced with substantial weakness in the economy, it’s not a tool that we would want to use as a routine tool of policy.

Mr. Fleming didn’t ask a follow-up question, so naturally I had no way of knowing what he thought of Yellen’s answer. I did, however, know just what I myself thought of it, which was, not much.

In fact, I thought so little of it that I wrote Mr. Fleming to say so. As many of you may also have heard the same exchange, I thought to share my remarks to him publicly, so here they are, minus a paragraph that repeated Yellen’s statement:

Dear Mr. Fleming,

Of the questions posed to Janet Yellen at today’s press conference, I thought yours especially worth asking, and thank you for having asked it. However, I also thought Yellen’s answer unsatisfactory and misleading.

Before the crisis and LSAPs, the Fed didn’t use rate changes instead of balance sheet changes for monetary control. It relied on balance sheet changes, a.k.a. open-market operations, to achieve whatever fed funds rate target it set. In other words, it had decades, dating back to the 1930s, of experience using balance sheet asset purchases (or sales) as, not only “a” policy tool, but as its principal policy tool! Rate change announcements, on the other hand, though they did indeed serve to “communicate the [Fed’s planned] stance” to the public, were incapable by themselves of implementing that stance.

In suggesting that balance sheet changes are an option the Fed might “conceivably resort to…were we again up against the zero bound,”  Yellen seems to equate balance sheet changes in general with “quantitative easing,” where the last refers to the special case, never resorted to until 2008, in which the Fed no longer treats asset purchases as a means to achieve some (positive) fed funds rate target. That confusion, if I’m correct in seeing it as such, represents a pretty elementary error on Yellen’s part. Once again, balance sheet changes were the normal means for the Fed to implement policy before 2008, though they were changes aimed at hitting an announced single-value (and market determined) effective fed funds rate.

Today, with IOER and ON-RRP between them defining the Fed’s ffr target “range” — a “target” it can’t possibly miss — the Fed’s administered rate hike changes ARE the policy changes, since no balance sheet adjustments are required to make them happen. But this approach has only been in effect since the crisis, and has only been employed 3 times so far. So for Yellen to pretend that it’s one that the Fed has “more experience with” is really rather disingenuous.

Once again, thank you for asking the question.



The public needs to see the Fed’s arguments for maintaining its present, boated balance sheet for what they are: mere excuses. It also needs to see the delay for what IT really is:  mere stalling while the Fed and its apologists rally support, in Congress and beyond, for a permanently enlarged Fed footprint on the U.S. credit system.

(For more on the balance sheet question, see here, here, and here.)


*The words in brackets were partly inaudible, so I reproduce them according to my own understanding. Yellen’s statement itself leaves little room for doubt concerning what Mr. Fleming meant to ask.

[Cross-posted from]

President Trump’s 2018 budget takes a meat cleaver to many federal programs. In my issue areas–transportation, housing, and public lands–it would end the Federal Transit Administration’s New Starts program; end funding for Amtrak’s long-distance trains; eliminate HUD community development block grants; and reduce funding for public land acquisition.

Trump calls this the “America First” budget. What it really is is a “Federal Funding Last” budget, as Trump proposes to devolve to state and local governments and private parties a number of programs now funded by the feds. In theory, the result should be greater efficiency and less regulation. However, in most of the areas I know about, Trump could have gone further and produced even better results.

Transportation: I applaud the elimination of New Starts but am disappointed that Trump would continue to fund projects with full-funding grant agreements. There are several insanely expensive projects, including the Maryland Purple Line and the Minneapolis Southwest Line, that have such agreements but haven’t started construction and should be eliminated. A number of streetcar and bus-rapid transit projects also fall into this category. If Congress is willing to live with no more full-funding grant agreements, it should allow the administration to also review and eliminate projects that haven’t yet begun construction or have made only token construction efforts.

The proposal to eliminate Amtrak long-distance trains is politically problematic. Since Amtrak’s other trains reach just 22 states, while the long-distance trains add 26 more, this proposal will look like it is favoring some states over others. As an alternative, I would have suggested that the federal government offer to cover 25 percent (or less) of the fully allocated costs (including depreciation) of each train or route, including the Northeast Corridor. If fares don’t cover the other 75 percent, then state support would be required or the trains would be cut. This is much more fair, especially because some state-supported trains actually require subsidies per passenger mile that are much larger than many of the long-distance trains.

Three other transportation proposals look good. One would transfer air traffic control to an independent, non-governmental organization, which would quickly install new equipment and increase airline capacities and safety. A second would eliminate the so-called Essential Air Service program, which subsidizes airports in smaller communities. Trump also proposes to eliminate the TIGER grant program, a relic of the 2009 stimulus bill, that has funded streetcars and other ridiculous projects.

Housing: Eliminating community development block grants would save $3 billion, which is a lot of money. This should be cut, says the proposal, because “the program is not well-targeted to the poorest populations and has not demonstrated results.” The budget would also cut $35 million for affordable housing. I support both of those cuts because I think such federal funding allows cities to do crazy things that make housing more expensive knowing they can use federal dollars to mitigate the problem by building a few units of so-called affordable housing. The budget keeps the mortgage interest deduction and most other subsidies to homeownership; these are clearly unnecessary as many other nations have higher homeownership rates than we do without these programs.

Public lands: Some of Trump’s public land proposals are vague, especially one that “streamlines operations while providing the necessary resources” to manage the lands. Less vaguely, it reduces land acquisition by $120 million (though I’m not sure what is left); fully funds fire protection at the ten-year average (which is too much money); and provides funding for national park maintenance that has been deferred. At least some of that deferred maintenance is for employee housing, which I think the Park Service should eliminate. In general, these proposals tinker at the edges of public land management. Some more radical programs, such as more user fees and contracting fire suppression out to the states by having the federal government pay the states the same as private landowners pay, could have greatly improved management and saved billions of dollars.

In short, most of Trump’s proposals on issues that I am familiar with are good. But they could have been great if the administration had taken one more step and saved federal dollars in ways that improve incentives for other parties to work more efficiently.

As I note in a post at Overlawyered, the House of Representatives has been moving quickly on litigation reform, both on perennial measures long stymied by Democratic opposition and on others of newer vintage (more). Of particular interest, two measures track recommendations Cato scholars have been making for years, while a third has been scaled back in a way that at least nods to concerns Cato scholars have expressed.

The new 8th edition Cato Handbook for Policymakers contains a chapter on tort and class action law prepared by Robert Levy, Mark Moller, and me. Its first federal-level recommendation is that “Congress should restore meaningful sanctions for meritless litigation in federal court.” On March 10, by a largely party-line vote of 230-188, the House passed the Lawsuit Abuse Reduction Act (LARA), H.R. 720, which would restore the regime of strong Rule 11 sanctions in federal litigation that were gutted in 1993 (committee report here). LARA has been proposed in one form or another for many Congresses and has passed the House more than once before stalling in the Senate; more on it here.

Our handbook chapter also recommends that Congress “implement further reforms for class actions that cross state lines,” a type of suit that often enables state courts to assert their power over transactions and parties in other states. While our recommendations are multi-faceted, many of them overlap with provisions in the pending H.R. 985, the Fairness in Class Action Litigation Act (committee report; passed the House March 9, 220-201). FICALA in turn adds other provisions of its own; attorney Andrew Trask, author of multiple essays on class action law for the Cato Supreme Court Review, takes a relatively favorable view of its overall impact.

Finally, there has been a development worth noting on H.R. 1215, the Protecting Access To Care Act, which passed committee by an 18-17 vote on Feb. 28. I and others have repeatedly criticized federal medical liability bills on the grounds that they run into serious problems of federalism and enumerated powers, seeking to justify federal involvement by way of loose New Deal doctrines of impact on interstate commerce, and overriding the workings of state courts even as to the large mass of medical malpractice disputes in which both parties to the lawsuit are local to the state and the costs of error are apt to be local as well. As I argued in this space:

That doesn’t mean federal policymakers are to be left with no role at all. For example, if Washington is paying for a large share of hospital stays, it may make sense as a cost containment measure for it to steer beneficiaries into lower-cost ways of resolving disputes over care quality, or even to ask beneficiaries as a condition of treatment to agree not to file certain suits at all. But that would require stepping back toward a more careful—and more Constitutionally appropriate—view of the federal role.

This year, PACA includes a new limiting provision. To quote Rep. Bob Goodlatte, on the bill’s latest version:

Unlike past iterations, this bill only applies to claims concerning the provision of goods or services for which coverage is provided in whole or in part via a Federal program, subsidy, or tax benefit, giving it a clear federal nexus. Wherever federal policy affects the distribution of health care, there is a clear federal interest in reducing the costs of such federal policies.

Whether the provision in question is drafted in such a way as to pass federalist muster is a question for another day — but it does at least seem that someone on Capitol Hill may have been listening to our past critiques.