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Becoming an EMT in Missouri requires 144 hours of training, including instruction in CPR, trauma care, handling hazardous materials, and medical ethics. But Ndioba “Joba” Niang and Tameka Stigers don’t want to be EMTs. They both want to run salons offering traditional African-style hair braiding. Braiding hair, however, requires at minimum 1000 hours of training, 90 percent of which isn’t even generally relevant to African-style hair braiding.

That’s because the Missouri Board of Cosmetology and Barber Examiners (an administrative board made up primarily of practicing barbers and cosmetologists, as well as the owners of in-state cosmetology/barbering schools) has declared that anyone wanting to braid hair professionally must be a licensed cosmetologist or barber—despite the fact that neither licensing program offers any training whatsoever in the services Niang and Stigers intend to offer. Defended as necessary to protect Missouri’s consumers from the health, safety, and fraud risks caused by untrained hair braiders, this licensing regime is actually a thinly disguised cartel in which insiders have built up arbitrary and expensive licensing requirements in an effort to limit competition.

It is for this reason that Niang and Stigers, with the assistance of the good people at the Institute for Justice, have filed suit challenging Missouri’s licensing regime as a violation of the Fourteenth Amendment’s Due Process and Equal Protection clauses. A federal district court upheld the licensing regime, using an extremely deferential form of judicial review that requires judges to blindly accept the government’s justifications of its actions, and even supply their own if they don’t find the government’s compelling enough. Under that form of review, as long as there is any potentially conceivable “rational basis” for the law, courts will not strike it down.

Cato, joined by the Reason Foundation, Individual Rights Foundation, and Senator Rand Paul (R-KY), has filed an amicus brief urging the U.S. Court of Appeals for the Eighth Circuit to reverse the district court and reject its rubber-stamp approach to the core judicial function of keeping the other two branches in check. The district court’s application of the rational basis test undermines the constitutional guarantee of procedural due process by denying plaintiffs both the right to a meaningful opportunity to be heard and to have their case judged by an impartial tribunal.

Deprivations of economic liberty require meaningful judicial scrutiny that actively engages with the facts of the case without putting a finger on the scales in favor of the government. As the Supreme Court has held in other contexts, meaningful scrutiny is especially important in situations like this one, where there are strong indications that the government’s proffered justifications are just pretextual smokescreens for illegitimate anti-competitive cartel behavior—and when the victims of the regulations lack sufficient numbers and resources to overcome the cartel through political means.

In Niang v. Carroll, the Eighth Circuit should reverse the lower court because Missouri’s licensing scheme for traditional African hair braiders isn’t rationally related to any legitimate governmental purpose.

The debate over transgender rights has risen in prominence in recent years, with the fight over access to public restrooms and locker rooms receiving particularly heavy public attention. The legal question at the heart of the first such lawsuit to reach the Supreme Court, however, is one not of civil rights, but of administrative law: Should courts defer to agency interpretations of their own regulations, even when those interpretations constitute major, substantive changes to public policy via informal, non-binding pronouncements?

G.G. is a transgender high school student—minors are identified by letters in sensitive cases—who argues that Gloucester (Va.) High School’s policy disallowing him from using the facilities that correspond with his preferred gender identity violates federal law (Title IX of the Education Amendments) regarding sex discrimination in education. Upon being informed of G.G.’s conflict with the Gloucester County School Board, James Ferg-Cadima—a civil servant in the U.S. Department of Education’s Office of Civil Rights (OCR)—wrote a letter purporting to interpret the relevant regulation. This letter stated that “[w]hen a school elects to separate or treat students differently on the basis of sex in [situations like this], a school generally must treat transgender students consistent with their gender identity.”

While the federal district court rejected this interpretation, the U.S. Court of Appeals for the Fourth Circuit reversed that ruling and deferred to the agency’s new understanding of its Title IX regulations. The Supreme Court took the case and Cato, along with the Cause of Action Institute and four respected law professors (Jonathan Adler, James Blumstein, Richard Epstein, and Michael McConnell), has filed an amicus brief supporting the school board.

We do so not because we necessarily oppose OCR’s position as a matter of policy or even whether the relevant federal law can properly be read to support that policy—those are questions for another day—but because we oppose its unconstitutional method of enacting that policy. OCR seeks to change federal law not through the procedures spelled out in the Administrative Procedure Act, but via an informal, unpublished letter written by a low-level bureaucrat.

Current Supreme Court precedent under Auer v. Robbins (1997) says that courts must give such agency interpretations of their own regulations controlling deference. But deferring in this way incentivizes agencies to write vague regulations because they will then be free to reinterpret them at a later date without having to go through the trouble and expense of the rulemaking process—changing the law with no notice to regulated entities or the general public. Auer deference also allows executive agencies to consolidate legislative and judicial power by effectively rewriting regulations beyond the scope delegated by Congress and then judging for themselves whether they’ve overstepped that authority.

The Court appears unwilling to overrule Auer in its entirety, but we call on it to take this opportunity to limit Auer to a more appropriate scope by holding that only agency interpretations that have received the public scrutiny of notice-and-comment rulemaking merit judicial deference.

One final note: The justices are expected to hear Gloucester County School Board v. G.G. this spring and decide it by the end of June, but the case could be made moot before it’s heard or decided. The Trump administration could simply withdraw the Ferg-Cadima letter or take other actions that would moot the case and leave the important issues it raises unsettled. Considering the importance Gloucester County may hold for the state of administrative law, we chose to file our amicus brief under the assumption that it will remain a live controversy—and to make a strong statement about constitutional structure and the rule of law.

If you’re a Baltimore resident there is a chance that last year you spotted a Cessna airplane overhead at 8,500 feet. You’d be forgiven for thinking that this was nothing out of the ordinary. Yet reporting revealed that this plane was doing something extraordinary. It was carrying a persistent surveillance cameras system, allowing analysts working with Baltimore police to access what its designer calls “Google Earth with TiVo.” The surveillance cameras mounted on the airplane can cover an area of 30 square miles. With the help of the equipment police could track where suspects came from before a shooting or theft and where they went afterwards.

But the use of this surveillance technology was kept secret. When the program began the mayor, members of the city council, prosecutors, and public defenders were left in the dark.

The Baltimore aerial surveillance program is one of the most prominent recent reminders of law enforcement surveillance that can take place without public knowledge or approval.

Such secrecy is the target of a recently proposed California bill. If enacted into law the bill would require that police departments disclose information about the surveillance equipment they use on or by July 1, 2018. The bill would also prohibit police from acquiring new surveillance tools without approval from local officials.

The bill would cover “any electronic device or system primarily intended to monitor and collect audio, visual, locational, thermal, or similar information on any individual or group” including biometric tools, cell-site simulators, drones, radio-frequency identification technology, and more. 

According to the bill, police departments that wish to use such gadgets would have to submit a “Surveillance Use Policy,” which will have to be publicly available and presented to local officials at an open hearing. Police departments submitting the policy will have to include not only the type of surveillance equipment in question but also the purpose of the equipment, the types of data it collects, and an outline of who is using the equipment. The bill also requires police departments to outline how they are keeping collected information secure as well as how long such information will be retained.

The obvious objection to such legislation is that it forces police to reveal their hands to criminals. After all, if police publicly disclose a new surveillance tool criminals could change their behavior accordingly, thereby becoming harder for police to surveil. The FBI used this very line of argument to justify the secrecy surrounding StingRays when outlining StingRay policies to Baltimore police.

Nonetheless, local lawmakers should seek more transparency from law enforcement when it comes to the tools they use to snoop on the public.

The least objectionable kind of surveillance involves data gathered pursuant to a warrant based on probable cause. In such cases police have reason to believe that someone is engaged in illegal activity and a judge is aware of what the police are up to. If police suspect that a man is involved in a kidnapping ring they could ask a judge to issue a warrant allowing them to wiretap his phone, thereby gathering evidence for a prosecution. In this kind of situation law enforcement identify a target of surveillance and use technology to uncover information that the suspect considers private (e.g. telephone calls).

But surveillance tools also allow police to gather vast amounts of data about the public before searching for wrongdoing. My colleague Jim Harper has labeled this kind of surveillance a “pre-search,” in which police first gather information and then scour through it to find evidence of criminal wrongdoing.

Baltimore’s aerial surveillance program is an example of “pre-searches” in action, but it’s hardly the only example. StingRays gather data on innocent people’s phone activity. Modern surveillance tools also allow law enforcement to search social media for content in a specific location, such as a protest.

Police body cameras are often presented as valuable tools for increasing police accountability. Yet without adequate restrictions in place they are valuable tools for surveillance, especially if merged with facial recognition technology. At the moment drones are comparatively rare law enforcement tools, but as drone technology improves they will proliferate and become more intrusive. Police using drones for surveillance will inevitably capture data related to law-abiding citizens. Indeed, ACLU attorney David Rocah noted that it’s inevitable that as the kind of persistent wide area surveillance technology used in Baltimore improves it will be mounted on drones.

Many people do not consider how much information about their public activities can be collected and analyzed. In her United States v. Jones (2012) concurrence Justice Sotomayor made this very point, writing, “I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on.”

At a time when such intrusive surveillance is possible it’s important that the public is informed about their local police department’s surveillance capabilities. Some surveillance technology does only snoop on the bad guys, but we shouldn’t forget that much of government surveillance also collects data concerning peaceful and law-abiding citizens.

Another day, another distortion from the Grey Lady on school choice.

In its quest to build a false narrative about Betsy DeVos, nominee for Secretary of the U.S. Department of Education, the New York Times has continuously misled readers about the effects of charter schools in Detroit. The latest example comes from today’s editorial:

[DeVos] has also argued for shutting down Detroit public schools, with the system turned over to charters or taxpayer money given out as vouchers for private schools. In that city, charter schools often perform no better than traditional schools, and sometimes worse.

The NYT editors based their claim on a (faultyTimes op-ed from November in which Douglas Harris made the following claim:

As one of the architects of Detroit’s charter school system, [DeVos] is partly responsible for what even charter advocates acknowledge is the biggest school reform disaster in the country. […] One well-regarded study found that Detroit’s charter schools performed at about the same dismal level as its traditional public schools.

At the time, Ramesh Ponnuru of National Review called out Harris for misrepresenting the Stanford CREDO study he had cited: “Follow the link to that ‘well-regarded study,’ and the results of Detroit’s charter schools do not sound nearly as helpful to Harris’s case as he suggests.”

Back in July, I highlighted the same report’s findings to dispel a similarly misleading description in the NYT:

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

To claim, as the NYT does, that Detroit “charter schools often perform no better than traditional schools, and sometimes worse” based on these figures is a highly distorted way of presenting the data. It’s equally true to say “Detroit charter schools almost always perform as well or better than traditional schools.” Of course, a news outlet interested in presenting unbiased facts would have written that about half of Detroit’s charters perform better than the traditional district schools, about half perform about the same, and a small number perform worse. That the NYT went with the first description is telling.

As Ponnuru notes, the 2012 CREDO study concluded: 

Based on the findings presented here, the typical student in Michigan charter schools gains more learning in a year than his [traditional public school (TPS)] counterparts, amounting to about two months of additional gains in reading and math. These positive patterns are even more pronounced in Detroit, where historically student academic performance has been poor. These outcomes are consistent with the result that charter schools have significantly better results than TPS for minority students who are in poverty.

Likewise, the CREDO’s 2015 nationwide study found that 60 percent of charter schools outperformed their district school competition in math and 51 percent outperformed them in reading. By contrast, the district schools outperformed only 8 percent and 4 percent of Detroit charters in math and reading, respectively. This isn’t to say that the Detroit charters are performing well by national standards. They are not. But in a city plagued with all sorts of problems, the best evidence we have shows that they are outperforming the district schools.

Harris responded by shifting the goalposts by expressing skepticism of the very CREDO study he had previously described as “well-regarded” when citing it in support of his view, claiming that the positive “CREDO results may reflect cherry-picking” among other reasons why we shouldn’t take these results “literally.” For the record, I am not entirely persuaded that the matching efforts in the CREDO study were well done, but one cannot cite a study in support of one’s view only to dismiss it when it is pointed out that the study’s conclusion contradicts that view. As Ponnuru responded:

But in the original op-ed, the one in the New York Times that will be read by far more people than either my Corner post or his follow-up, Harris raised no concerns about the study. He leaned on it and called it “well-regarded.” And the researchers themselves presented an interpretation. He is implicitly finding fault with it now, even if he is unwilling to come out and say so; but he did not find fault with it even implicitly in the Times. If he had written, “While one well-regarded study concluded that Detroit’s charter schools had shown signs of success, there are reasons not to take its findings literally,” I would not have criticized him. What he wrote instead was a misrepresentation of the study. And he is now covering his tracks.

How well Detroit’s charter schools are performing is a question I will leave for others (although several of Harris’s arguments on the point seem to me weak). Whether Harris can be trusted to present facts on this question fairly and accurately, on the other hand, has been established.

 Whether the New York Times can be trusted to present facts on this question fairly and accurately has also been established.

President Obama will deliver his Farewell Address tonight to a capacity crowd in Chicago’s McCormick Place convention center. It’s the right venue for the speech, the president explained last week, because Chicago is “where my career in public service began.”

Indeed, it’s the city where, as a young state senator in 2002, Obama gave an antiwar rally speech railing against the “dumb,” “rash” rush to war in Iraq; and where, as a presidential candidate five years later, he promised to “turn the page on the imperial presidency” and usher in “a new dawn of peace.” And yet, 2008’s “peace candidate” will leave office as the first two-term president in American history to have been at war every day of his presidency, having dropped over 25,000 bombs on seven countries in 2016 alone.

Given that record, it seems unlikely that Obama will use his Farewell Address to warn against excessive foreign entanglements or the dangers of the military-industrial complex. But you never know: our 44th president has never lacked chutzpah. In a speech to US troops last month, he denounced the “false promise” that “we can eliminate terrorism by dropping more bombs,” and piously proclaimed that “democracies should not operate in a state of permanently authorized war.”

An audacious statement—given that it is Obama himself who’s made perpetual warfare the new normal, and the president the ultimate “decider” in matters of war and peace. Where George W. Bush secured congressional authorization for the two major wars he fought, Obama has launched two undeclared wars (in Libya and against ISIS), ordered 10 times as many drone strikes as his predecessor, and this summer bombed six different countries just over Labor Day weekend. And it is Obama who is largely responsible for warping the 2001 Authorization for the Use of Military Force—passed three days after 9/11 to target Al Qaeda and the Taliban—into an enabling act for endless war, anywhere in the world.

Through it all, Obama has maintained the pose of a “reluctant warrior,” repeatedly lecturing the country about the dangers of an imperial presidency while forging new frontiers in the expansion of executive power. “Unless we discipline our thinking, our definitions, our actions,” he chided in May 2013, “we may be drawn into more wars we don’t need to fight, or continue to grant Presidents unbound powers.” In the same speech, Obama even had the gall to quote James Madison’s admonition that “no nation could preserve its freedom in the midst of continual warfare.”

Two weeks after Obama invoked Madison’s warning, the public got new evidence of its continued relevance. June 2013 brought the first of a series of revelations about secret dragnet data-collection programs that targeted Americans in the name of protecting them from terrorism. In the quest to “collect it all,” the National Security Agency had built what NSA whistleblower Edward Snowden termed a “turnkey tyranny.” As former NSA counsel Susan Hennessy has observed: “No one should kid themselves about the idea that in the wrong hands, [the agency] couldn’t do quite a bit that’s very scary.”

With Trump’s inauguration near, Obama has described the transfer of presidential power as ”a relay race” where he’ll pass the baton to his successor. In private, he’s occasionally used a more ominous metaphor: leaving “a loaded weapon” behind for the next president. In 10 days Obama will pass that weapon on to Donald J. Trump, a man he’s flatly declared “unfit” for the office—someone who can’t be trusted with a Twitter account, let alone the nuclear launch codes.

So it’s only fair that on Obama’s recent “legacy tour,” he’s faced some awkward questions about the vast new powers he’s forged. Not to worry, Obama told NPR’s Steve Inskeep recently, your president has been hard at work building “guard rails internally…. a whole series of processes to guard against government overreach, to reform some practices that I thought over time would threaten civil liberties.” But those self-imposed restraints won’t bind President Trump—they don’t even bind President Obama, who’s also spent his last months in office adding new fronts and targeting new enemies in the “Forever War.”

In keeping with the Washington-Eisenhower tradition, the outgoing president plans to offer some “admonitions” in his address tonight. He’s already used Madison’s warning about “continual warfare,” but if he’s looking for something equally prescient, Obama might try one of the lesser-known passages from Washington’s Farewell Address. In it, our first president warned of “the disorders and miseries [that] gradually incline the minds of men to seek security and repose in the absolute power of an individual,” with the result that “sooner or later the chief of some prevailing faction… turns this disposition to the purposes of his own elevation on the ruins of public liberty.” 

The Economist is one of my favorite news sources. The writing is always clear and interesting, and I often agree with them on substance. Nevertheless, while I hate to give them a public reprimand, a recent piece by their Free Exchange columnist on Brexit contains a misleading point that needs to be addressed.  The author appears to equate the EU and the WTO, and says, in effect, why would UK voters accept being part of the WTO when they could not accept being part of the EU? Here’s the passage in question:  

It is puzzling that Brexiteers, whose campaign was summed up as “Vote Leave, take back control”, seem happy with the WTO option. The WTO is truly global, with only a handful of countries outside it (zealous as they are about sovereignty, Brexiteers do not want to join the ranks of Turkmenistan and Nauru). But forsaking one unelected, unaccountable bureaucracy in Brussels for another housed in a leafy district of Geneva seems perverse. WTO members are at the mercy of its “dispute-settlement” regime, which allows other countries to enforce penalties.

Having worked at the WTO, I know a thing or two about it. First of all, it is small. There are 634 staff in total (that includes administrative support). The budget for 2015 was a little less than 200 million Swiss francs.

More importantly, the WTO does not make any rules of its own. The WTO member governments agree to a set of rules (mostly related to constraining protectionism), and they can enforce the rules through a special dispute procedure.  However, governments ultimately make their own decisions about whether to comply.  If they really don’t want to change after having been found in violation of the rules, they can accept the trade sanctions imposed by others.

By contrast, the EU is a vastly different entity.  The European Commission alone employs 32,966 people and had a budget of over 3 billion euros in 2015.  The total EU budget for 2015 was around 162 billion euros.

The EU is still not considered to be a nation-state, but it is getting pretty close, and I think it’s fair to say that it offers a kind of supra-national governance. It has become famous for its regulations on obscure issues such as “marketing standards for bananas” (including their curvature), as well as broader issues such as “rules governing the manufacture, presentation and sale of tobacco and related products”.  And its enforcement mechanisms cannot be evaded in the way WTO obligations can be.

I don’t want to get bogged down here in the relative merits of being part of either institution.  The point here is simply that equating the EU and the WTO as two “unelected, unaccountable bureaucracies” misses the vast distinctions between the two.  It is not difficult at all to understand how someone might want Britain out of the EU while remaining in the WTO.

Here we go again. History repeats itself with classified-ad website Backpage.com’s announcement yesterday that it’s shuttering its “adult” section after years of unrelenting pressure from public officials at all levels of government. 

Most recently, the Senate’s Permanent Subcommittee on Investigations (PSI) hauled several Backpage.com officials before it for a public shaming without bothering to wait for a ruling on the legality of its “investigation.” In California, just before Christmas then-attorney general (now U.S. Senator) Kamala Harris refiled criminal charges against Backpage’s CEO and its former owners in the face of a December 9 ruling throwing her initial charges out.

These tactics represent a marked escalation since September 2010, when Craigslist caved in to pressure from a group of 17 state attorneys general and shut down its “adult advertisements” section. As a federal court had already ruled at that time—and numerous courts have held since—the government cannot assume that ads that mention sex are advertising illegal transactions, much less coercive sex-trafficking. Laws censoring such websites have been roundly and repeatedly held to violate the First Amendment.

But the law is one thing, and less-direct pressure tactics are quite another. It’s harder to hold government accountable when it tries to hide what it’s up to with public letters, demands, and investigations, even if meritless.

For years, Backpage has been the target (after Craigslist) of the same state AGs, members of Congress, and even local officials like Chicago’s vigilante-with-a-badge, Cook County Sheriff Thomas Dart. Backpage has fought these First Amendment battles and won almost all of them. Cato filed an amicus brief (along with DKT Liberty Project and the Reason Foundation) in its case against Sheriff Dart, who was running his own personal Operation Chokepoint to force the credit-card companies to sever ties with Backpage. 

Dart claimed he had written to the card companies only as “a father and a caring citizen,” but Seventh Circuit Judge Richard Posner saw through the ruse. He enjoined Dart’s campaign as a government organized boycott and a prior restraint. If not checked, Judge Posner wrote, such pressure tactics constitute “a formula for permitting unauthorized, unregulated, foolproof, lawless government coercion.”

And that’s what’s happening with the PSI investigation, which was styled as an inquiry into human trafficking, but has resulted in onerous subpoenas targeting Backpage’s editorial practices. Congress has broad investigatory authority that can be misused, as it was by Senator Joseph McCarthy when he chaired PSI. Honest investigations are perfectly salutary, but congressional subpoena power is particularly circumscribed when the First Amendment rights of the subpoena recipient are at issue, as they are here.

That’s why Cato again teamed up with DKT and Reason Foundation on an amicus brief in the D.C. Circuit, opposing PSI’s subpoena of Backpage CEO Carl Ferrer. Our brief showed that the PSI was improperly engaging in an effort to punish Ferrer and Backpage for running a website that publishes third-party content that the subcommittee finds offensive.

Although the subcommittee has repeatedly denied any ties to Dart, a trail of emails between PSI staff and the sheriff’s office suggests otherwise. Before the PSI served its first subpoena on Backpage, subcommittee counsel corresponded with Dart’s staff, praising the sheriff and assuring him that their investigation was “rapidly progressing down a parallel track.” When PSI issued its initial document subpoena, with five sets of demands that were identical to those served by Sheriff Dart.

The punitive rather than legislative nature of PSI’s investigation is further evidenced by the statements made by subcommittee members and other senators after Ferrer’s recent arrest on charges that also collide with Ferrer’s constitutional rights (and which were thrown out by a California court). Senators Rob Portman (R-OH) and Claire McCaskill (D-MO), the PSI’s chairman and ranking member, issued a joint statement in which they heralded the subcommittee’s specific role in bringing about the arrest. Senator Mark Kirk was even more explicit, saying, “This arrest means we are one step closer to holding Backpage accountable for underage internet sex trafficking through their site and stopping these illegal activities.” It could hardly be more evident that the subpoena was issued pursuant to the punitive aim of “holding Backpage accountable,” rather than a desire to study the issue of human trafficking or any other specific legislative need.

PSI’s subpoena to Carl Ferrer plainly fails the standards set forth for a valid exercise of the congressional subpoena power. The subcommittee did not identify a specific legislative need for the information; it did not show a compelling interest in obtaining the information nor a strong nexus between the information sought and the interest asserted; and it wielded the subpoena as a tool for punishing Ferrer for his operation of Backpage because it disfavored the content of the speech on Backpage. PSI’s overreach is emblematic of a disturbing pattern by legislative committees and state attorneys general of brandishing their subpoena power as a weapon to attack individuals and entities that engage in disfavored speech or conduct.

For example, the New York and Massachusetts attorneys general recently issued a civil investigative demand requiring ExxonMobil to produce all of its climate-change research analysis, its internal communications regarding climate change, and its communications with a dozen conservative and libertarian non-profits. Piggybacking on that investigation, the Virgin Islands attorney general issued a subpoena to the Competitive Enterprise Institute demanding that CEI turn over its research, communications, emails, statements, and drafts (over nearly a decade) regarding climate change and energy policy. Only after CEI moved for sanctions under the D.C. Anti-SLAPP Act did the attorney general withdraw the subpoena.

Given such awesome investigative power, it’s easy to see how the targets of investigations can be brought to heel by a government that disregards constitutional limits. It is sad, but understandable, that Backpage, like Craigslist before it, chose to shutter its entire “adult” section.

Imagine that you run a family daycare out of your home. You have no direct connection to the state government, but its bureaucrats decide that because you lack an “organized voice” as a profession, they’re going to appoint a union representative to speak on your behalf. So you get a union you didn’t choose and which you refuse to join. This union is now representing your “interests” before the state, which isn’t even your employer. All this despite the fact that you might not even agree with what the union is saying!

It sounds far-fetched, but this is what’s happening to Mary Jarvis and several others in New York. These plaintiffs have sued the Empire State, arguing that the imposition of an exclusive representative violates their First Amendment freedom of association.

In the 2014 case Harris v. Quinn, the Supreme Court ruled that states that unionize healthcare aides and other home-based workers who are “not full-fledged public employees” cannot require those who do not wish to join the union to pay fees to support it. This new case asks the question Harris left unanswered: May a state even mandate exclusive representation for those who are “not full-fledged public employees”—or not employees of the state at all?

The U.S. Court of Appeals for the Second Circuit said that the case is easily resolved under Abood v. Detroit Board of Education (1977)—which allowed the imposition of “agency fees” on union nonmembers—and does not require further First Amendment scrutiny. Abood, however, is like a house built on the sand: It treated the First Amendment concerns public unions (should) raise as already resolved by earlier cases when in fact those cases merely resolved the question of whether Congress has the constitutional authority to regulate those public unions. Abood’s reliance on the notion of “labor peace”—which was significant in those old cases but shouldn’t be a valid First Amendment interest—conflicts with the First Amendment’s ban on compelled speech and association absent a substantial government interest.

Although the Second Circuit treated this case as automatically resolved under Abood, it would actually be a vast expansion of precedent to say that “labor peace” justifies forcibly unionizing at-home workers who are independent from the state government. States are already doing this in a number of jurisdictions—including in the First Circuit, which recently upheld a similar Massachusetts law that Cato earlier urged the Supreme Court to hear—but expanding Abood here would enable the states to mandate exclusive representation for almost any private business.

Where does it stop? Cato has filed a brief asking the Court to answer that question once and for all, and ultimately to rule that Abood should not be read to give the states free rein to unionize individuals at the expense of their First Amendment rights. The case is Jarvis v. Cuomo.

In 2014, the Independence Institute—a Colorado think tank—wanted to run a radio advertisement supporting the Justice Safety Valve Act, a bill granting federal judges greater discretion in sentencing nonviolent offenders. The text of the ad asked listeners to “call Senators Michael Bennet and Mark Udall”—Colorado’s two senators at the time—and tell them to support the bill.

But under the Bipartisan Campaign Reform Act of 2002 (BCRA, better known as McCain-Feingold), any organization that spends at least $10,000 on “electioneering communications” in one year is required to make several public disclosures, including “the names and addresses of all contributors who contributed an aggregate amount of $1,000 or more” toward the advertisement. Further, an “electioneering communication” is defined as any broadcast that “refers to a clearly identified candidate for Federal office” within 60 days of a general election. Since Udall was running for reelection that year, the ad would have qualified even though it had nothing to do with Udall’s campaign.

The Independence Institute challenged the rule as an unconstitutional burden on its First Amendment right to speak on issues of public concern. After losing before a three-judge district court, the Institute has now appealed directly to the Supreme Court. Cato, joining the Institute for Justice, has filed a brief urging the Court to grant the case a full hearing on the merits.

We make two broad points. First BCRA’s disclosure provision is undeniably content-based, which should subject it to strict scrutiny under the First Amendment (meaning the government needs to provide a compelling justification). The law applies only if a speaker chooses to make reference to a candidate for office, so the law expressly draws distinctions based on the expressive content of speech.

Second, mandatory-disclosure laws chill speech by forcing people to surrender their “privacy interest in keeping personal facts away from the public eye,” as the Supreme Court put it in U.S. Department of Justice v. Reporters Committee for Freedom of Press (1989). In the context of reviewing disclosures made under the Freedom of Information Act, the Court has recognized that “embarrassment in … social and community relationships” is among the consequences of disclosure that “must be given great weight.” U.S. Department of State v. Ray (1991).

Exactly the same analysis holds true for donors to advocacy organizations. For many people—without tenure, without salary protection, and without security details—government-mandated disclosure of their political leanings and personal data is a real barrier to political participation. Forcing people to divulge their personal information threatens to expose them to reprisals, and this deterrent effect is pervasive precisely because it is impossible to predict whether your viewpoint will trigger retaliation.

BCRA’s disclosure rule is content-based, intrudes on speech and association, and has not been shown to serve a legitimate governmental interest. Because enforcement of the rule raises a substantial question under the First Amendment, the Court should take up Independence Institute v. FEC and ultimately overturn the district court.

You Ought to Have a Look is a regular feature from the Center for the Study of Science.  While this section will feature all of the areas of interest that we are emphasizing, the prominence of the climate issue is driving a tremendous amount of web traffic.  Here we post a few of the best in recent days, along with our color commentary.

In our last episode of You Ought to Have a Look (which was prominently quoted in an editorial in Nature magazine this week), we looked at reasons why folks who are wishing climate change mitigation should be the driving force behind most federal regulations should be very worried about what the incoming Trump Administration has in store. Most of his announced agency heads, etc., don’t share their vision (unlike those currently running the Obama Administration).

This week we start off with a guide to how folks should worry about climate change in general. Is it really true that, according to President Obama, “No challenge—no challenge—poses a greater threat to future generations than climate change”? The short answer is no. The long answer is provided by Manhattan Institute’s Oren Cass is his recent piece for National Affairs called “How to Worry about Climate Change”.

Oren describes how climate change is different from typical political policy questions:

Climate change is a different kind of problem from health-care reform, gender equality, or almost any traditional subject of political attention and action. Its relevant effects are still decades or centuries away. Scenarios with the most extreme effects, rather than the most likely ones, provide the sense of urgency and the rationale for policy responses. Those extreme outcomes are often distant ripples from the initial effect of a warmer climate, transmitted outward through multiple steps of causation and combined with other factors to produce or amplify the damage. By the time actual impacts arrive, the time for action may have long passed. But if climate change is not a typical policy problem, how should policymakers approach it?

…Yes, climate change is a problem. But what kind of problem?

He then sets out to answer that question:

Climate change—forecasted, irreversible, and pervasive—might therefore be called a “worrying problem.” Here, “worrying” does not mean “concerning” (though it is that as well), but rather something tailor-made for worry. Its effects exist primarily in the imagination and have poorly defined bounds that encourage speculation; a point of no return looms. Yet the contours of those bounds and that point may become clear only after it is too late to correct course.

Other worrying problems exist. They tend to emerge where clear long-term trends in technological or social change produce concerning side effects.

Oren provides other examples of “worrying problems” such as a global pandemic caused by international travel and urbanization, overuse of antibiotics, nuclear weapons, interconnectivity of financial systems, democratization of communications technologies, computer viruses, superhuman computer intelligence, weaponized nanotechnology, and many more, including social ones, as well as the sustainability of the Western welfare state itself. As Oren says there is “much to worry about,” but reminding everyone that “we should heed the well-known warning: ‘What worries you masters you.’”

He continues:

We need to choose and calibrate our worries with care. If, at least, climate change is a worrying problem but not the only one, what makes it most worrying of all?”

Throughout the rest of his well-reasoned essay, Oren makes the case for why climate change is nowhere close to the “most worrying of all.” It is well worth a complete read through.

Oren astutely concludes:

A more dispassionate placement of climate change alongside a range of worrying problems does not mean there is nothing to worry about. But it points away from sui generis mitigation at all costs and toward an existing model for addressing problems through research, preparation, and adaptation. It suggests that analytical exercises that would never be applied to other worrying problems, like assigning a “social cost” to each marginal unit of carbon-dioxide emissions, are as inappropriate as estimating a “social cost of computing power” as it brings humanity closer to a possible singularity, or a “social cost of international travel” as it elevates the risk of a global pandemic. Taxes on any of them are closer to political statements than efficient corrections of genuine externalities, and each would be more likely to stall meaningful economic and technological progress than to achieve a meaningful reduction of risk.

Lessons might run in the other direction as well: We are not focusing as much on other challenges as we should. And perhaps, if climate change were consigned to its rightful place in the crowd, some additional attention might be available to concentrate elsewhere. If the level of research support, policy focus, and international coordination targeted toward climate change over the past eight years had gone instead toward preventing and managing pandemics, imagine the progress that could have been made. For a fraction of the cost of de-carbonizing an industrial economy, it could be hardened against cyber attacks; with a fraction of the attention corporations pay to their own purported climate vulnerability, they could make real strides in their own technological security.

A little bit of worry provides healthy motivation. Too much is a recipe for paralysis, distraction, and overreaction.

Next up is an article from the Daily Caller’s Michael Bastasch that pours a healthy dose of context onto the climate announcement of the week that the “pause” in global warming since the late 1990s was nothing but a figment of poor observational data. The study by published in Science Advances by a team led by Cal-Berkeley’s Zeke Hausfather seems to corroborate the data manipulation used by NASA in its latest version of its global surface temperature data compilation (which has been the subject of a contentious Congressional inquiry led by Rep. Lamar Smith). As we pointed out when NASA unveiled its new dataset back in 2015 (and which we reiterated to the Daily Caller), although we were skeptical of some of the methodologies involved, that even if they were all correct, the observed rate of global warming remained considerably less that that anticipated to be taking place by the world collection of climate models. This remains the case. Lukewarming, rather than high-end alarming warming, continues to gather evidential support. Further, we’ll note that as with any scientific paper, it’s not likely to be the end of the issue. Rumor has it that an announcement of other interesting, relevant and perhaps somewhat contradictory findings is afoot. So stay tuned.

And finally, we’ll point to this little curious tidbit in the form on an announcement from the Royal Society of an upcoming lecture by Oxbridge Physicist Tim Palmer titled “Climate change: catastrophe, hoax or just lukewarm?” While the title sounds promising to lukewarmers like us, reading through the description as to what the lecture will contain, we come to this:

With some emphasis on the lukewarmist perspective, he will explain why none of the three perspectives above is consistent with the risk-based scientific consensus about climate change.

Palmer has a track record of authoritarian exaggeration on climate change (see here) so we don’t expect much different here.

We’ll point out that lukewarming isn’t a full reflection of “consensus” science (for more on what lukewarming is, see our new book Lukewarming: The New Climate Science That Changes Everything) so it’s hardly surprising it doesn’t fit with into a risk-based “consensus.” It seems that this talk will be a dud from the start. We suppose that we ought to have a look just in case, but until then, we’ll stop short of recommending your time with it.

In October, the International Monetary Fund (IMF) committed a blunder when it issued a forecast for Venezuela’s end-of-year annual inflation rate. An inflation forecast in a country that is toying with hyperinflation is a mug’s game.

The IMF’s October 2016 World Economic Outlook (WEO) forecast for Venezuela’s 2016 year-end annual inflation rate was 720 percent. The IMF’s figure gave the appearance that it was based on a finger-in-the-wind estimate. Indeed, the last serious connection between Venezuela and the IMF was back in September of 2004, when an Article IV Executive Board Consultation occurred.

However, the IMF published a forecast anyway. What became a magic number of 720 percent was repeated over and over in the financial press. Sometimes the press reported it as a forecast, which it was, but more often than not, it was reported it as if it were a measured rate, which it was not.

The only accurate measured rate of the general level of inflation in Venezuela is produced by the Johns Hopkins-Cato Institute Troubled Currencies Project (TCP), which I direct. This project measures inflation as it occurs. It does not produce inflation forecasts. The TCP’s measured inflation rates are based on the long-established principle of Purchasing Power Parity. Using this method, changes in black market (read: free market) exchange rates are translated into overall inflation rates. Based on my calculations, the 30-day moving average for Venezuela’s annual year-over-year inflation in December 2016 was 290 percent. This rate is less than half of the IMF’s forecast.

Thanassis Cambanis argues in Politico that, contrary to what we may think, America’s role as global policeman, defender of more than 50 different countries, buyer of more than a third of worldwide military spending, etc. is not a costly burden compared to the benefits it yields. All this talk about how allies free ride off our security commitments and how the promiscuous use of U.S. military power imposes significant economic and geopolitical costs on the homeland are off base, according to Cambanis. Being the policeman of the world makes us richer, he says.

Since the United States is so extravagantly rich in relative international terms but also historically speaking, identifying even major costs can be difficult. But Cambanis misses the mark with some selective accounting. He makes his case with three main points. First:

[M]ost of America’s defense spending functions as a massive, job creating subsidy for the U.S. defense industry. According to a Deloitte study, the aerospace and defense sector directly employed 1.2 million workers in 2014, and another 3.2 million indirectly. Obama’s 2017 budget calls for $619 billion in defense spending, which is a direct giveback to the American economy…

Of course, a “giveback” to the American economy implies the real truth: that in order to create jobs by massively subsidizing the military industrial complex, the government has to first extract resources from the more productive sectors of the private economy. If the U.S. pared back its global role and initiated serious restraint-oriented cuts to the defense budget, it could produce something on the order of $150 billion in annual savings. That could serve as quite a stimulus if left in taxpayers’ pockets.

Second:

America’s steering role in numerous regions – NATO, Latin America, and the Arabian peninsula – gives it leverage to call the shots on matters of great important to American security and the bottom line. For all the friction with Saudi Arabia, for instance, the Gulf monarchy has propped up the American economy with massive Treasury bill purchases, and by adjusting oil production at America’s request to cushion the effect of policy priorities like the U.S. invasion of Iraq in 2003.

Active international engagement certainly gives a peerless superpower like the United States more leverage to secure its interests more efficiently, but Cambanis inadvertently draws attention to the benefit-outweighing costs of that “steering role” we’ve played in the world. The Iraq War is not synonymous with Liberal Hegemony, but if America had not been playing the role of global policeman, it’s hard to imagine the invasion of Iraq having happened in the first place. It served mostly as an achievable item on a pre-existing laundry list of errands that the Bush administration thought would serve as a useful show of force following the 9/11 attacks. It cost trillions of dollars and hundreds of thousands of lives and it destabilized the region in a way that continues to eat up lives and resources to this very day. And the U.S. relationship with the Saudi regime has hardly been a net positive for U.S. interests.  

Third:

America’s “global cop” role means that shipping lanes, free trade agreements, oil exploration deals, ad hoc military coalitions, and so on are maintained to the benefit of the U.S. government or U.S. corporations. The truth is that America puts its thumb on the scale to tilt the world’s not-entirely free markets to America’s benefit. Nobody would be more thrilled for America to pull back than its economic rivals, like China.

It’s not clear to me that America secures better oil exploration deals as a result of its expansive grand strategy. Nor am I convinced that the ability to organize ad hoc military coalitions always serves U.S. interests; too often they have been used as a veneer of international legitimacy for reckless interventions. It seems a good thing, for example, that the U.K. parliament refused to go along with Obama’s plan to bomb the Assad regime in 2013. According to Secretary of State John Kerry, that was the pivotal moment in derailing a war that was deeply unpopular with the American public and that Congress wouldn’t even formally approve.

More interesting is Cambanis’s argument that America’s “global cop” role keeps shipping lanes open and facilitates free trade agreements. I think America’s post-war and early Cold War role in setting up international institutions that liberalized economies and encouraged the lowering of trade barriers was important, but the notion that global free trade today depends on U.S. hegemony is dubious. Most countries have learned the lesson that freer trade and globalization is a net economic benefit; they don’t need U.S. military bases to continue to be convinced. And certainly America’s frequent “global cop” military interventions don’t help. Moreover, as Joshua Shifrinson and Sameer Lalwani write in a chapter for a Cato Institute book on threat perception and U.S. national security, “Although more actors are increasingly capable of disrupting American command [of the seas], none are capable of systematically undermining the maritime status quo.” Indeed, any state interested in gaining global power and influence will strive to keep shipping lanes open and engage in free trade. Just ask China.

And as for the argument that China would be “thrilled for America to pull back,” I seriously doubt it. China certainly prefers an American withdrawal from the South and East China Seas, but, as a recent RAND Corporation study found, China is all too eager to let the U.S. carry the burden for Middle East energy security, believing (erroneously) that American military presence there helps secure the free flow of oil out of the Persian Gulf, incidentally a region that China relies on for oil imports far more than the U.S. does.

Much of this debate boils down to whether or not U.S. primacy deserves credit for the decline of interstate war, and thus for the increase in global economic productivity, since 1945. Many argue that it does, but there are competing arguments. Nuclear weapons and the destructive power of modern conventional militaries have created an environment of “defense dominance” in which war and conquest are either prohibitively costly or just plain infeasible. Economic interdependence, which developed long before America’s rise to superpower status, also creates incentives to keep the peace and get rich instead – so the cause-effect variable could very well be the reverse of what Cambanis and others claim. Cato’s own John Mueller has long argued that a normative shift in the way most societies see war, from a glorified practice to an abhorrent last resort, is the real reason for the decline of international conflict.

Cambanis predicts that, contrary to the prognostications of some fearful commentators, Trump will not reduce America’s role in the world because he will soon realize that it is a net benefit to the country’s interests and its bottom line. I agree Trump is unlikely to pare back U.S. predominance, but I think it will have more to do with his predilection for exercising immense power than anything else.

Senators Dick Durbin and Lindsey Graham have introduced a bill to extend the Deferred Action for Childhood Arrivals (DACA) program, which since 2012 has provided work permits and lawful presence to 800,000 young immigrants brought illegally to the United States as children. One difficulty for the bill is that the GOP House passed a bill to end DACA in 2014, arguing that DACA caused a surge of young children to come to the border starting in 2012 and reaching its peak in 2014.

At the time, my colleague Alex Nowrasteh published an article arguing against this thesis. First, he noted that DACA specifically prohibited recent arrivals from applying for the benefits. DACA applicants had to be under the age of 31, have arrived in the United States before they were the age of 16, and have continuously resided in the United States since June 15, 2007. Second, Nowrasteh explained that the surge began well before DACA was unexpectedly announced on June 15, 2012. He wrote:

From October 2011 through March 2012, there was a 93 percent increase in UAC arrivals over the same period in Fiscal Year 2011.  Texas Governor Rick Perry warned President Obama about the rapid increase in UAC at the border in early May 2012 – more than a full month before DACA was announced.  In early June 2012, Mexico was detaining twice as many Central American children as in 2011.  The surge in unaccompanied children (UAC) began before DACA was announced.

As the bill was being debated on the House floor, Rep. Zoe Lofgren, the ranking member of the House Subcommittee on Immigration and Border Security, proceeded to introduce Nowrasteh’s article into the record as evidence against the underlying reason for the bill. Unfortunately, Border Patrol had not yet released their monthly UAC arrival figures for 2012, so Nowrasteh’s report had to rely on comments from border agents and local officials about the increases in arrivals rather than the raw Border Patrol data. The anti-DACA bill passed on a party-line vote.

UAC crisis began before DACA was announced

Now, however, the Border Patrol has made available the monthly numbers for 2012. These figures vindicate the Cato argument from 2014, showing unequivocally that all of the increase in children coming to the border in 2012 began before the DACA announcement in mid-June. Figure 1 shows the trend in UAC arrivals for 2011 and 2012. From December 2011 to April 2012, the number of UACs more than doubled from 1,259 to 2,703. Thereafter, the numbers fell and did not recover their peak again until 2013.

Figure 1: Unaccompanied Alien Children (UACs) Arriving in 2011 and 2012 by Month

Source: Customs and Border Protection (CBP)

It is true that more than six months after DACA in 2013, the monthly UAC numbers finally rose above the pre-DACA level. But when seen in the broader context, the largest growth occurred much later, shooting up in early 2014. Moreover, as Figure 2 shows, UAC arrivals have fluctuated month-to-month and year-to-year totally without regard to the number of new DACA applications. To the extent that there is a relationship, it is the other way—almost all DACA approvals occurred at a time of relatively low UAC arrivals.

Figure 2: Unaccompanied Alien Children (UACs) Arrivals and Deferred Action for Childhood Arrivals (DACA) Approvals

Sources: USCIS, CBP

Annual UAC figures confirm this impression. The percentage growth in UAC arrivals was the largest in 2009, and while it rose in 2012, the rate of growth remained similar in 2013 and 2014. In 2015, UAC arrivals plunged before rising again in 2016. The first two months of 2017 have seen a remarkable growth over the numbers in those same months in 2016.

Table: UAC Arrivals and UAC Growth Rates

 

2008

2009

2010

2011

2012

UACs

8,041

19,668

18,634

16,056

24,481

UAC growth

 

145%

-5%

-14%

52%

 

2013

2014

2015

2016

2017*

UACs

38,833

68,631

39,970

59,692

14,128*

UAC growth

59%

77%

-42%

49%

134%**

*Based on the first two months of the fiscal year, **Compared to the first two months of FY 2016
Source: CBP, CBP

DACA expansion announcement led to no increase in UACs

It would be nice to be able to conduct an experiment to see if announcements of deferring the deportations of minors result in more children coming to the border. While it is impossible to conduct an experiment of this kind perfectly, President Obama provided the next best option in 2014. In November 2014, he announced that he would expand DACA to include anyone of any age—not just those under 31—who arrived before 2010 and would grant three-year work authorizations to recipients.

Figure 3 provides the monthly UAC arrivals for fiscal years 2014 and 2015 and notes when the expanded DACA announcement occurred. It is true that the numbers rose slightly over the course of the year, but the peak month saw half as many arrivals as the peak in 2014. Just as DACA did not cause a crisis, the expanded DACA program announcement did not cause one either, and it provides more evidence against the theory that allowing DACA recipients to stay is a significant influence on the children coming to the border.

Figure 3: UAC Arrivals in Fiscal Years 2014 and 2015

Source: See table above

Expanded DACA’s implementation was prevented due to a preliminary injunction issued by a federal judge on February 16, 2015. But three months had already passed since the announcement with no increase in UAC arrivals. Moreover, advocates were hopeful that the injunction would be quickly overturned, and the program implemented that year. In any case, the basis for the purported link between UAC and DACA is that the UACs mistakenly believe that they will be eligible for these programs, not that they actually will be, so it is not clear why the judge’s order would have had any more of an impact on these confused children than President Obama’s specific criteria making them ineligible.

Child migrants are not a recent phenomenon

Perhaps the most important argument against the idea that the child migrant crisis was caused by the actions of the Obama administration is that a similar crisis occurred during the Bush administration as well. Unfortunately, CBP has not made available its UAC numbers prior to 2008, but before the recession, its statistics show that huge numbers of children were coming to the border. The New York Times ran an article about the issue as far back as 2003, noting that Border Patrol was struggling to handle the flow of children. It appears that juvenile arrivals are simply returning to their pre-recession trend.

Figure 4: UAC Arrivals and all Juvenile Arrivals from Fiscal Year 2001 to 2016

Source: CBP, DHS

Another reason to believe that the UAC crisis is not related to confusion around DACA is that the recent surge in children is concentrated among non-Mexican arrivals. All of the increase in UAC arrivals is from Central American children. But this surge in UACs has been paralleled by an even larger, in absolute terms, increase among non-UACs—the vast majority of whom are adults who would be ineligible for DACA. Since 2009, the number of overall Mexican apprehensions has steadily dropped year after year, falling over 50 percent over that time, and UAC apprehensions have dropped by a third. These facts point to causes of the surge that are specifically impacting Central America, not Mexico, and all Central Americans, not just children.

Figure 5: Apprehensions of Non-Mexicans by Border Patrol

Source: See Figure 4

Moreover, the surge was not simply driven by non-Mexican countries generally—which could lead to the conclusion that perhaps something unique is happening in Mexico—but rather was driven entirely from three countries—Guatemala, Honduras, and El Salvador, known collectively as the Northern Triangle. As Figure 6 shows, the rise in child migration is a phenomenon that solely impacted these three countries. This makes it extremely unlikely that the cause of the crisis is a general confusion about DACA among children outside of the country.

Figure 6: UAC Arrivals by Country of Origin

Source: See Figure 4, Figure 1

DACA was not a contributor to the child migrant crisis, so it should not be used as a justification to end the program. If DACA was an example of executive overreach, Congress should replace it with a permanent program that recognizes that America is home for the vast majority of these young immigrants.

As Obama administration officials head for the door at the Department of the Treasury, they have released a new study on infrastructure. The study—completed by outside consultants—profiles 40 large transportation and water projects that the authors believe would generate economic growth.

For each project, the study gives the estimated benefits, costs, and benefit-cost ratio. Many of the 40 projects appear to be worthwhile, such as an $8 billion Hampton Roads highway project with a benefit-cost ratio of 4.0. The report is silent on who should fund each project, but such high returns suggest that the states have a strong incentive to invest by themselves without aid from Washington.

What the states need from Washington is not money but to get out of the way. The Treasury report suggests that some “major challenges to completion” of projects are imposed by governments.

One challenge is “significantly increased capital costs:”

Capital costs of transportation and water infrastructure have increased much faster than the general rate of inflation over the past 20 years … Increased capital costs are also a product of enhanced design standards and regulatory requirements related to performance, safety, environmental protection, reliability, and resiliency.

Another challenge is “extended program and project review and permitting processes:”

Successful completion of the review and permitting processes required by the National Environmental Policy Act of 1969 (NEPA), which requires federal agencies to assess the environmental effects of their proposed actions, is an important part of project development. NEPA helps promote efforts to prevent or eliminate damage to the environment, but has also extended the schedule and generally increased the cost of implementing major infrastructure projects. This is a long-standing challenge that has spanned the last 20 to 30 years. Studies conducted for the Federal Highway Administration (FHWA) concluded that the average time to complete a NEPA study increased from 2.2 years in the 1970s, to 4.4 years in the 1980s, to 5.1 years in the 1995 to 2001 period, to 6.6 years in 2011.

Other FHWA data show that the number of environmental laws and executive orders creating barriers to transportation projects increased from 26 in 1970 to about 70 today, as shown in the chart below sourced from a trade association.

The upshot? The incoming Trump administration can spur infrastructure investment by working with Congress to repeal rules that unnecessarily delay projects and increase costs. Other steps include cutting the corporate tax rate to increase private investment and ending the bias against the private provision of facilities such as airports.

For more on infrastructure, see here, here, and here.

 

Texas State Senator Charles Schwertner (R-Georgetown) recently filed SB 23, a bill that would put into statute Governor Rick Perry’s executive order mandating E-Verify for all state contractors and force all state contracts to include a paragraph specifying that they must participate in the program. There’s a good faith exemption, in case the contractor receives inaccurate information from the E-Verify system (false confirmations that later come to light). SB 23 adds an enforcement mechanism that Governor Perry’s executive order lacked. Under the proposed law, a contractor’s failure to use E-Verify would bar them from receiving state contracts for five years and make the state comptroller responsible for enforcement. The legislature already mandated E-Verify for state agencies and universities.  

SB 23 won’t much affect Texas because it probably won’t be enforced. Nebraska mandates E-Verify for all public contractors, but a 2011 Nebraska report found that only 23 percent of registered state contractors were even enrolled in the system. If Texas is as uninterested in enforcing E-Verify as Nebraska, then the results will be similar.    

The real damage from SB 23 is that it brings Texas one step close to universally mandated E-Verify and all of its systematic problems. E-Verify is a government run system that is free for the user if you exclude the taxes, time, and money spent on maintaining it, using it, and resolving any identification problems that arise. E-Verify also doesn’t work well, as accuracy rates are poor, there are many ways for illegal workers to obtain SSNs from deceased Americans to fool the system, and many employers in states where the system is mandated don’t bother to use it at all. Furthermore, E-Verify doesn’t dim the job magnetE-Verify is an expensive system that doesn’t work.

SB 23 is a stepping stone toward universal mandated E-Verify in Texas and all of the problems it creates. For that reason alone, SB 23 is a rotten deal for Texans. 

Special thanks to Scott Platton for his help in researching this blog post.

Cato Senior Fellow Nat Hentoff passed away on Saturday evening at age 91.  He was a leading authority on the Bill of Rights and most especially the First Amendment.  He authored 37 books and countless newspaper and magazine articles.  He is perhaps most well-known for his opinion articles in the Village Voice, where he wrote for 51 years, from 1957 until 2008.  He joined the Cato staff in 2009 and never stopped researching and writing.  A few years ago, he told me that he was following Duke Ellington’s guide with respect to his own work in defense of the American Constitution:

Rule 1: Don’t Quit

Rule 2: Reread Rule #1

Nat actually knew Duke and many other luminaries, from Malcolm X to Supreme Court Justice William Brennan.  He was a jazz expert, writing on music for the Wall Street Journal.  He often said that “jazz and the Constitution were his main reasons for being.”  He said his passion for jazz and liberty overlapped because they were both about respecting everyone’s individuality.  

Nat was bemused by both his fan mail and hate mail as the years passed.  He didn’t play the political game—he would condemn Democrats and Republicans alike if they attacked constitutional principles. And he was always enthusiastic when he found a member of Congress coming to the defense of the Constitution, such as Senator Russ Feingold’s (D-WI) lone vote (in the Senate) against the Patriot Act in 2001, or, more recently, Senator Rand Paul’s (R-KY) efforts to scale back the surveillance state.  Go here to view an interview with his thoughts on other current events.

Nat said one of best things about losing his job at the Village Voice in 2008 was that it afforded him the opportunity to (sort of) read his own obituaries.  “Dig this one!,” he would tell me over the phone with a chuckle. 

Interestingly, when asked about his proudest achievement, he would say it was not anything he wrote.  He got an opportunity to work as a producer for a television special about jazz music in 1957.  He jumped at the chance to bring beautiful jazz music into the living rooms of folks who had never really been exposed to it before.  Here is Billy Holiday’s Fine and Mellow from that special.  According to Nat’s relatives, he passed away while listening to his favorite jazz tunes.

We’re sad you’re gone, but we celebrate your good life.  Rest in peace.

An article cited in the Cato Clips late yesterday caught my eye: “Libertarian Judicial Activism Isn’t What the Courts Need.” Written by Texas attorney Mark Pulliam, a sometime contributor to such libertarian publications as Reason and The Freeman, among others, it was posted at a site called “Southeastern Texas Record” and a day earlier at “American Greatness” (I leave it to the reader to discern what that site is about). The title speaks for itself. As the first named target of the piece, I’m given to respond, briefly.  Others, in order of appearance, are Randy Barnett, Clark Neily, Ilya Shapiro, Kermit Roosevelt III, Dick Carpenter, Anthony Sanders, and, by implication (their book, The Dirty Dozen, is cited), Bob Levy and Chip Mellor—a veritable rogues gallery of libertarian legal scholars.

Could we all be wrong? Apparently so. We’ve “devised a novel theory that the Constitution, properly understood, protects a person’s ‘right to do those acts which do not harm others,’” Pulliam argues, “enforceable against the federal government and the states,” and “it is only judges who get to decide whether a particular law is justified constitutionally.” What’s worse, we’re urging President-elect Trump to appoint adherents of this “fanciful theory” to the Court.

And why is that theory “unsound and misguided”? To begin, Pulliam claims that it

rests on the premise that the Constitution was not so much an arrangement among the individual states (which themselves were separate Lockean social compacts) as it was a very limited delegation to the federal government of individual sovereignty (harkening back to the Declaration of Independence and its reliance on “natural rights”).

To be sure, the Constitution was ratified through state conventions. But as the Preamble makes crystal clear, it’s theory of legitimacy, drawing from the Declaration’s theory, rests on the idea that “We the people,” in our individual capacities, for the purposes indicated, came together to “ordain and establish this Constitution.” And as is also clear from the very next sentence—the first sentence of Article I—we “granted” such legislative powers as we did to a Congress, a very limited delegation, as Article I, Section 8 indicates. So what’s the problem?

To get a hint, notice the scare-quotes (sneer-quotes?) around “natural rights.” “In this rubric,” Pulliam writes, “individuals continue to possess all unalienable rights to which they were endowed in the ‘state of nature,’ other than the federal powers specifically enumerated in the Constitution.” Well, yes, that’s plain from background theory, text, and numerous explanations in the Federalist. How else could it be? Is it that there are no rights but only powers, which we “granted”? By what right, then, did we “ordain,” “establish,” and “grant”? Of course, none of that makes sense if natural rights and state-of-nature theory are dismissed out of hand. But the Founders and Framers took those ideas seriously. They did not view the Constitution as a mere compact among the states, grounded simply in will.

Insofar as it pertains to the federal government, Pulliam concludes his understanding of libertarian constitutional theory as follows:

“Natural rights,” [libertarians] claim, are protected by the reference to “liberty” in the due process clause of the Fifth Amendment, and the Ninth and 10th Amendments preserve to the people—as individuals, not as states—all rights not specifically surrendered to the federal government.

No. To be sure, the rights “retained” by “the people” through the Ninth Amendment and the powers “reserved” to “the states respectively, or to the people” by the Tenth Amendment were retained and reserved to the people as individuals, not as states. Indeed, why would the Framer’s switch from individual to collective rights when they got to the Ninth, especially since the contrast the Amendment draws is between enumerated and unenumerated rights, not between individual and collective rights, and because the idea of “retained” rights is perfectly consistent with the basic theory of the Constitution—enumerated powers, retained pre-existing natural rights (see just below)? Moreover, why would the Tenth speak of both “the people” and “the states” if the powers thus reserved were meant to be reserved to the people collectively, “as states”?  Reservation to “the people” would be redundant.

But second, and more fundamentally, as the Federalist argues throughout, natural rights are protected mainly not by the Bill of Rights—there was none when the Federalist was written—but by the enumeration of powers, for by the logic of the matter, where there is no power there is a right. After all, did we not have rights against the federal government during the two years before the Bill of Rights was added? Of course we did. Since the government had only limited powers, we had a vast sea of rights, all unenumerated. But are we then to imagine that by adding a Bill of Rights we actually lost most of those rights? That’s the conclusion implicit in the contention by Pulliam and many conservatives that we have only enumerated rights—as if the Bill of Rights were a grant of rights. It was not. It was simply a muniment of certain rights. And all of that was made clear by the Ninth and Tenth Amendments, which memorialized the very theory of the Constitution—as adumbrated in the Declaration’s theory of moral and political legitimacy. When understood properly, it all goes together elegantly. (See here for more on this.)

But what about the states? Here, Pulliam believes, is the libertarians’ Achilles’ heel:

Libertarians have a facile “solution” to the potentially vexing question of the states’ police powers,” which antedated the drafting and ratification of the Constitution: they contend that the 14th Amendment applied the Fifth Amendment (including the protection of “liberty” in the due process clause) to the states, particularly through the “privileges or immunities” clause, which libertarians believe was erroneously drained of its intended meaning in the incorrectly decided Slaughter-House Cases in 1873.

Drawing from the text plus the debates in the 39th Congress and in the ratifying conventions, we do indeed believe that the Fourteenth Amendment applied the guarantees of the Bill of Rights against the states, ab initio; that the Privileges or Immunities Clause means what it says, that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”; and that the Court egregiously misread that law in 1873. But we’re hardly alone in believing that. Most other scholars today do as well.

We come, then, to the heart of the matter. If both enumerated and unenumerated rights are among our privileges or immunities as citizens of the United States, as those who drafted and ratified the Fourteenth Amendment believed, then no state shall abridge them. And further—now we hit Pulliam’s sore spot—it falls ultimately to the courts to enforce those privileges or immunities, all of them—not only the right to speak but the right to an honest calling, the right to buy and use contraceptives (a right “that nowhere appears in the Constitution,” he says), and more, much more.

Thus, it’s our call for “judicial engagement” that most vexes Pulliam—he calls it “a judicially managed state of anarchy.” Fearing “judicial activism,” he would limit judges to enforcing only enumerated rights, the text and underlying theory of the Constitution notwithstanding—and in the name of “originalism,” no less. Well that itself is a form of “activism”—ignoring the law in deference to wide-ranging majoritarian rule inconsistent with that law. At bottom, then, the difference between Pulliam and libertarians is over what the Constitution itself says. Like many conservatives, he has allowed his fear of what he sees as judicial activism to color his reading of the Constitution. Is there judicial activism? Of course there is. But the answer to bad judging is not judicial abdication. It’s better judging. And that starts, and ends, with a careful but correct reading the Constitution.

So why did this piece appear just now at “American Greatness” and a day later at “Southeastern Texas Record”? Pulliam answers that by reference in his final sentence: “President Trump should avoid jurists in any way sympathetic to this badly misguided theory.” The link is to a June 2015 decision by Texas Supreme Court Justice Don Willet, one of Mr. Trump’s “21,” upholding a claim to economic liberty, a right the Founders and the Civil War Amendment’s Framers would have thought fundamental in the Constitution’s plan for ordered liberty—and one that Mr. Trump may find attractive as well.

The federal government spent $147 billion on research and development in 2016, including $77 billion on defense and $70 billion on nondefense. Federal R&D spending has risen in recent decades on a constant-dollar basis, but has dipped as a share of gross domestic product. The AAAS has the data here.

How much should the federal government spend on R&D? AAAS data show that 23 percent of federal spending is for “basic” research, 25 percent is for “applied” research, and 52 percent is for “development.” Most economists would support the basic part, but be more skeptical of the applied and development parts because the private sector handles those activities.

The largest portion of federal nondefense R&D is for health care. In the Wall Street Journal today, a professor emeritus at Harvard Medical School questions the value of this funding. Tom Stossel argues that the private sector makes most medical advances:

The assumption seems to be that the root of all medical innovation is university research, primarily funded by federal grants. This is mistaken. The private economy, not the government, actually discovers and develops most of the insights and products that advance health. The history of medical progress supports this conclusion.  

… In America, innovation came from physicians in universities and research institutes that were supported by philanthropy. Private industry provided chemicals used in the studies and then manufactured therapies on a mass scale.

… Since then, improvements in health have accumulated. Life expectancy has increased. Deaths from heart attack and stroke have radically decreased, and cancer mortality has declined. New drugs and devices have ameliorated the pain and immobility of diseases like arthritis. Yet the question remains: Is the government responsible for these improvements? The answer is largely no. Washington-centric research, rather, might slow progress.

… By contrast, private investment in medicine has kept pace with the aging population and is the principal engine for advancement. More than 80% of new drug approvals originate from work solely performed in private companies.

Cato’s Terence Kealey is also a skeptic of government-funded science.

In most jurisdictions, local police departments typically conduct internal investigations of police officer shooting and misconduct complaints.[1] However, 79% of Americans would prefer that an “outside law enforcement agency take over the investigation” when an officer is suspected of criminal wrongdoing. Alternatively, 21% favor police departments conducting internal investigations of their own officers.

The proposal to have outside investigations of misconduct, rather than internal department investigations, enjoys broad public support. Overwhelming majorities across demographics and partisan groups, including majorities of blacks (82%), whites (81%), Hispanics (66%), Republicans (76%), independents (77%), and Democrats (83%), all favor outside investigations and prosecutions of officers accused of misconduct.

Find the full public opinion report here. 

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

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

 

[1] USCCR, “Revisiting Who Is Guarding the Guardians? A Report on Police Practices and Civil Rights in America,” U.S. Commission on Civil Rights, November 2000, http://www.usccr.gov/pubs/guard/main.htm.

In December, Russia, Turkey, and Iran began high-level talks to work toward a political settlement of the brutal civil war in Syria. Much to the chagrin of Washington officials and commentators, these countries have deliberately excluded the U.S. from the negotiations.

One broad sketch of their approach to a settlement, according to some reports, is to first achieve a cease-fire on the ground, as best they can, and then negotiate a division of Syria into three separate regions in which Assad’s Damascus-based Allawite sect would share power in a federal structure. Assad himself would step down at the end of his current term. The plan is in its infancy, subject to change, and would of course require agreement from the regime and opposition forces, before ultimately seeking buy in from the Gulf states, the U.S., and the European Union.

There is no indication that this latest push is going to be any more successful than previous diplomatic efforts to resolve the Syrian civil war. Nationalism is a powerful force and, as recent history suggests, plans to simply divide war-torn states into federated systems get tossed into the trash bin pretty quickly, as happened with Iraq and with Bosnia and Herzegovina. That said, the players have clear interests at stake. Russia has real leverage with the Syrian regime and has now staked its prestige on mitigating the conflict on favorable terms. Turkey borders Syria and has not only borne the brunt of the spillover effects with regard to refugees and militancy, but also has a strong national interest in preventing the Kurds from carving out territory along the border so as to keep a lid on its own Kurdish separatist movement. And Syria is Iran’s only Shiite ally in the region and has proven a strategic asset for Iran on several fronts, not least in its proximity to Lebanon’s Hezbollah. When the stakes are high for the negotiating parties, they tend to take care in constructing a settlement.

While I’m hopeful for a peaceful settlement, I wouldn’t put good money on the prospects for success in these negotiations. But they at least demonstrate that the United States does not necessarily need to take the lead in trying to solve every problem in the world. Other countries with clearer interests at stake and more local knowledge than America can do the heavy lifting. And perhaps do it much more effectively.

Much of the handwringing in Washington over Russia’s leadership in the negotiations centers on a fear that America might be demoted in its status as the indispensable nation if a geopolitical competitor like Russia successfully negotiates a resolution to one of the world’s worst conflicts while the U.S. sits it out. This concern is misplaced for at least two reasons. First, status and prestige are overrated assets in international politics. They can play an important role at certain times, but they pale in comparison to more material security and economic interests. Rooting against the success of peace talks just because we don’t want Russia to regain a modicum of the great power status it once had betrays a rather unbecoming lack of self-esteem that is wholly unfair to the millions of Syrians that would benefit from even a brief hiatus in daily violence and besiegement.

Secondly, one wonders what benefits the U.S. has derived from all its leadership (such as it is) in the greater Middle East. I’m inclined to agree with Andrew Bacevich that the sum of our dominant role in the region since the 1980s has been mostly failure. As he writes, through our “naivety, short-sightedness, and hubris, we have actually made things worse — at very considerable cost to ourselves and to others.” If our record of embarrassingly stalemated diplomacy, costly failed wars, troublesome allies, and elective military envelopment in the Middle East is anything to go by, Americans shouldn’t be overly covetous of Russia’s latest attempt to steal our thunder in Syria – a conflict, I might add, which our “leadership” to date has mostly made worse

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