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President Donald Trump and congressional Republicans are proposing to cut the corporate tax rate. With any tax cut, members of Congress want to know how much revenue the government may lose from the reform. I do not think that cutting our 35 percent federal corporate tax rate to 20 percent or so would lose the government any money over the long term. U.S. and foreign corporations would invest more in the United States, which would boost our economy, and corporations would avoid and evade taxes less.

Canada provides us with a real-world trial run of corporate tax cuts, and new budget data includes the latest revenue estimates. The nation slashed its federal corporate tax rate from 38 percent in the mid-1980s, to 29 percent by 2000, to 15 percent by 2012, as shown in Chart 1 below. Has the government lost revenue?

You be the judge. Chart 2 shows that corporate tax revenues in Canada have fluctuated with the ups and downs in the economy—revenues fell, for example, during recessions in the early 1990s and 2009. But even with the modest Canadian economic growth of recent years, revenues have held up under a much lower rate. Corporate tax revenues are 2.1 percent of gross domestic product (GDP) today, which is a bit higher than in the mid-1980s when the rate was more than twice as high.

Let’s compare to the United States. While Canada’s 15 percent federal corporate tax will raise 2.1 percent of GDP this year, the 35 percent U.S. federal corporate tax will raise just 1.7 percent. Thus, the Canadian corporate tax raises relatively more than the U.S. tax—even though the rate is less than half the U.S rate.

 

 

Canada historic tax revenues here. New Canadian budget data here.

 

Election law expert Nathaniel Persily has written an interesting article about the Internet and the 2016 election. The problems Nate (and others) see in 2016 will inform the debate about free speech now and in future elections.

Persily notes that the 2016 campaign saw an “online explosion of campaign-relevant communication from all corners of cyberspace.” Here’s his description of the Trump campaign’s social media efforts:

Employing traditional web-based communication, event promotions, new apps, native advertising (in which web ads are designed to look like articles in the publication containing them), and new uses of social media, the campaign launched 4,000 different ad campaigns and placed 1.4 billion web impressions (meaning ads and other communications visible to individual users)…the campaign targeted 13.5 million persuadable voters in sixteen battleground states, discovering the hidden Trump voters, especially in the Midwest, whom the polls had ignored.”

Trump himself tweeted a great deal, having 13 million followers by election day. But the mainstream media also picked up the tweets and prompted wide discussion and attention to them. Trump garnered about $4 billion in free media during the primaries and the general election, an astonishing sum. The new media thus drove the agenda for the mainstream media; in the past, the latter shaped the agenda for everyone.

From a First Amendment perspective, 2016 saw more speech by more people than previous elections. The election also showed that you can win the White House without dominating fundraising, an outcome that weakens the case for campaign finance regulation. Both results seem good for free speech.

However, Nate Persily is a learned and sensible analyst, and his concerns about 2016 merit our attention.

He writes, “Those who worry about the implications of the 2016 campaign are left to wonder whether it illustrates the vulnerabilities of democracy in the Internet age, especially when it comes to the integrity of the information voters will access as they choose between candidates.”

In particular, he worries about “fake news” understood as propaganda.

Propaganda can overlap with satire, profit-seeking fake news, and conspiracy theories, but it involves much more: It is the deliberate use of misinformation to influence attitudes on an issue or toward a candidate. Fake news as propaganda can originate from any node on the diffuse party network and campaign organization described above. It can come from official campaign organs, unofficially allied interest groups, friendly media organizations and websites, foreign actors, or even the candidate himself. In the age of social media, fake news ricochets among these different campaign nodes, moving online and offline as the campaigns, their supporters, and the media repeat stories in the news. The complexity of the network that produces and retransmits fake news often makes it hard to pinpoint the source of a false claim. This is all the more true when the candidate himself retransmits or creates false claims through his social-media account. [italics added]

Lies, the other word for fake news, distorts voter decisions:

False stories create a blanket of fog that obscures the real news and information communicated by the campaigns. The available academic evidence suggests that viewers have considerable difficulty distinguishing between real and fake news, and that trust in the media is already at an all-time low. The prevalence of false stories online erects barriers to educated political decision making and renders it less likely that voters will choose on the basis of genuine information rather than lies or misleading ‘spin.’

Of course, lies have always been a problem for voters and democracy. What to do? Maybe nothing. Persily notes: “We do not yet know how big an effect fake news had on the 2016 campaign.” He cites an early study that indicates fake news did not change the election; television remained very important and the most important source of news for voters, who were no more likely to believe fake news than placebo stories.

In any case, the courts and the First Amendment say keep government out of speech regulation and allow voters to decide what is true and what is not. I often meet people who believe the government should repress untrue political speech. (Ohio even set up a truth commission for that purpose, later learning they had violated the First Amendment). To be clear, Persily is not proposing Congress censor “fake news.” But the nature of online political speech in 2016 (and the outcome of the election) may encourage the thought that “something ought to be done” about false and ugly speech. Free speech advocates should be prepared.

Persily also wonders whether fake news might “demobilize voters by fanning cynicism regarding the candidates and the election.” Maybe the actual turnout in those elections could have been higher but it was about the same as 2008 and 2012, elections that “had seemed to confirm Internet utopians’ belief that digital tools enhance democracy by expanding citizen empowerment and engagement.”

The Internet’s ability to deliver targeted information also may engender “bubbles, filters, and echo chambers that shelter people from information that might challenge the messages sent to them by campaigns, partisan media, or social networks.” Bubbles are bad no doubt, but forcing people to consider views they dislike or abhor seems worse.  No doubt we will hear much about “improving” debate in days to come. The quality of public debate, however, is not a purpose of government or within its ambit.

Persily thinks anonymity (including anonymous speech) poses dangers beyond fake news. It enables foreign powers to intervene in U.S. elections, and it allows trolls to “commit racial and sexual harassment.” Anonymous speech and anonymity has a long history in American politics. It has been both protected (in voting and in some speech) and not protected (with campaign contributions). We should expect a renewed debate about anonymity, a debate that will be worth having for no other reason than the alternatives are so much worse for free speech.

Persily looks closely at private responses to 2016. Twitter, Google, and Facebook have all taken actions to reveal and presumably eliminate fake news or ugly speech. He thinks these actions and those likely to come from these businesses are unlikely to match the scope of the problem, primarily because the need to make money cuts against troubling customers.

As private firms, the Internet giants are less restrained in limiting speech. The First Amendment applies to the U.S. government at all levels, not to U.S. businesses. However, I would worry that the line between public and private here will not remain bright. These companies may avoid angering politicians and thus crack down on dissent. But if they crack down on speech in response to the demands of their customers?

Finally, Persily says 2016 shows “the liberating, anti-establishment potential [of the Internet] can be harnessed by demagogues who appeal to the worst impulses of the mob.” But what limited demagogues before the Internet, assuming they had much less influence? Nate argues that the influence of demagogues rose as that of political parties and the mainstream media fell. He doubts parties and the media can once again limit the worst impulses of the mob. But both institutions have lost the confidence of many if not most Americans. What is needed are new or reformed institutions that can foster a measure of faith from the public while preserving the free part of freedom of speech.

It has been widely reported that President Trump may impose high tariffs on steel imports on national security grounds. Scott Sumner has a good summary on why this rationale is not particularly convincing. But even if President Trump is not persuaded by Sumner on national security, perhaps he will be interested to hear how protectionism will affect the other manufacturing industries he purports to want to flourish.

Last year, a paper by economist Bruce Blonigen explored the impact of industrial policies in steel on downstream industries, i.e. those where steel is an input to the production process. Unsurprisingly, less openness to foreign competition through direct protection or state support or privileges raises the price of steel within a country. This in turn raises costs for downstream industries such as fabricated metals and machinery manufacturers.

More pertinently given Trump’s obsession with trade deficits, Blonigen’s work suggests the effect of this cost increase is to significantly reduce exports from these industries. The headline result is that a one standard deviation increase in industrial policies associated with steel leads to a 1.2 percent decline in the export competitiveness of the average manufacturing sector in the years immediately after implementation. For those that use steel intensively, the decline is as large as 6 percent.

If President Trump really wants an export-led manufacturing jobs boom then, his steel policies are utterly self-defeating.

On Wednesday, the Supreme Court decided a relatively small but important case out of my home state of Colorado. Colorado, like many states, imposes certain monetary penalties and costs on convicted defendants. Those can include court costs, docket fees, and payments into victim restitution funds. What happens, however, if a defendant’s conviction is later overturned, either by a higher court or on a re-trial? Can the once-convicted defendants easily get their money back, as would seem to be only fair? Not in Colorado, which is (was) unique in requiring that exonerated defendants go to court again to prove their innocence by clear and convincing evidence before they could get their money back. Thankfully, the Supreme Court, in a 7-1 opinion (Justice Gorsuch only began participating in cases in the last two weeks), held that Colorado’s “Exoneration Act” violates the due process guarantee of the Fourteenth Amendment.

Nelson v. Colorado is a combination of two different cases. One concerned Shannon Nelson, who was convicted by a jury of two felonies and three misdemeanors arising from the alleged sexual and physical abuse of her four children. Nelson conviction was reversed on appeal, however, and on retrial she was acquitted of all charges. In the course of her ordeal, Nelson paid $8,192.50 in costs and fees.

Louis Madden, the petitioner in the other case, was convicted of patronizing a child prostitute and third-degree sexual assault. His conviction was later overturned by the Colorado Supreme Court, and the state declined to retry the case. Madden paid the state $1,977.75 in the course of his legal troubles.

Although Madden and Nelson were innocent of their crimes in the eyes of the law–remember everyone is innocent until proven guilty by a legally proper trial (Cato’s brief in the case focused on the deep historical roots of the presumption of innocence)–they were faced with having to prove their innocence in a subsequent civil proceeding if they were to get their money back. Instead, they went all the way to the Supreme Court, arguing that it was unconstitutional to require them to do anything more to prove their innocence.

Writing for the Court, Justice Ruth Bader Ginsburg made fairly short work of Colorado’s law. “The sole legal basis for these assessments was the fact of Nelson’s and Madden’s convictions,” she wrote, and “absent those convictions” Colorado has “no legal right to exact and retain petitioners’ funds.” Once the convictions were erased, “the presumption of their innocence was restored” and “Colorado may not presume a person adjudged guilty of no crime, nonetheless guilty enough for monetary exactions.”

Justice Samuel Alito concurred in the result–he agreed that Colorado’s law was unconstitutional–but wrote separately to argue that the majority should have narrowed their opinion. Alito was concerned that the majority’s reasoning could be stretched too far. He posed an interesting question: “if the status quo ante must be restored, why shouldn’t the defendant be compensated for all the adverse consequences of the wrongful conviction?” For example, attorney’s fees, lost work, or harm to reputation?

The lone dissenter was Justice Clarence Thomas, who provocatively argued, as he has many times, that the Due Process Clause of the Fourteenth Amendment conveys no substantive rights, such as the right to have your money back after having a conviction overturned. Any such substantive right must be granted by state law, argued Thomas, and that wasn’t the case here.

Because Colorado was the only state with such an “Exoneration Act,” the Court’s ruling will have only limited effect. But for many former criminal defendants in Colorado, the ruling can help them get their money back and, perhaps, a little dignity too. More broadly, Nelson v. Colorado affirmed the importance of the presumption of innocence, which is a cornerstone of our system of justice.

Eighteen years ago today, Dylan Klebold and Eric Harris walked into Columbine High School and murdered 12 students and a teacher, as well as injuring dozens more people. The mayhem ended when the two killers took their own lives as police closed in.

The massacre, perpetrated with guns and rudimentary explosives, created a political firestorm. Music, video games, and especially guns became lightning rods for outrage and demands for new legislation. The controversy re-energized gun control advocates and spawned Michael Moore’s award-winning anti-gun film Bowling for Columbine. Hundreds of new gun control bills were introduced, although few became law.

Subsequent school shootings, such as Virginia Tech in 2007 and Newtown, Connecticut in 2012, have generated similar cycles of gun control fervor followed by demands for new laws, but the fundamental debate remains the same: what can we do to effectively mitigate the risk of such tragedies?

In 2015 David Kopel attempted to answer this question by analyzing the efficacy of the types of gun control proposals that are so common after school shootings, including magazine bans, universal background checks, and assault weapons bans. He found little evidence that gun control legislation has been or could be effective at preventing spree shootings.

From the summary:

Although universal background checks may sound appealing, the private sale of guns between strangers is a small percentage of overall gun sales. Worse, the background check bills are written so broadly that they would turn most gun owners into criminals for innocent acts — such as letting one’s sister borrow a gun for an afternoon of target shooting.

Magazine bans are acts of futility because the extant supply is enormous. Today, magazines of up to 20 rounds for handguns, and 30 rounds for rifles, are factory standard, not high-capacity, for many of the most commonly owned firearms. These magazines are popular with law-abiding Americans for the same reason they are so popular with law enforcement: because they are often the best choice for lawful defense of one’s self and others.

Gun-control advocates have been pushing for a ban on assault weapons for more than 25 years. This proposal is essentially a political gimmick that confuses people. That is because the term is an arbitrarily defined epithet. A federal ban was in place between 1994 and 2004, but Congress declined to renew it after studies showed it had no crime-reducing impact.

What has occasionally proven effective at stopping spree shootings is the armed self-defense of would-be victims or bystanders.  Kopel notes, for instance, that shootings at Pearl High School in Mississippi and at Appalachian School of Law in Virginia were halted by armed bystanders.

Highly motivated killers who plan their attacks weeks or months in advance (as Klebold and Harris did) have an inherent advantage over their unarmed victims, and are unlikely to ever be deterred by criminal penalties. The best examples of these crimes being stopped in their tracks are examples of armed defense, not legislative preemption.

Notably, the Columbine tragedy did produce one effective policy change, but it wasn’t about guns. 

At the time of the shooting, standard police procedure for an active shooting situation was for the officer on the scene to cordon off the area and await the arrival of a SWAT team or other specialized unit to handle the crisis.

At Columbine, the armed sheriff’s deputy who served as a school resource officer followed protocol. He exchanged fire with the gunmen when they left the building, allowing several victims to escape. But the deputy did not enter the building himself, instead waiting for a better-equipped SWAT team to arrive.  Klebold and Harris continued their rampage following the initial gunfire exchange, eventually killing themselves as SWAT officers closed in.

Following claims that the delay in police response allowed Harris and Klebold to kill more people, police departments around the country began to implement what would become known as Immediate Action Rapid Deployment (IARD), in which the first officers on the scene of an active shooting tries to confront and neutralize the threat even before the SWAT team arrives.

Gun crime remains a serious problem in America, not just spree shootings (which are exceedingly rare occurrences), but in general. Nearly two decades later, the lesson of Columbine is that an intense public desire to “do something” after a spree shooting is not enough to generate effective policy solutions.  Our response to mass violence must be based on logic, available evidence, and compliance with the mandates of the constitution.

Today education secretary Betsy DeVos is paying a visit to an Ohio public school at the invitation of one of her most vociferous critics, and one of the most ardent opponents of school choice: American Federation of Teachers president Randi Weingarten. The AFT is the second largest teachers union in the country, and Weingarten has repeatedly complained that DeVos has called public schools—institutions heavily influenced by union power—a “dead end.” One purpose of the invitation is to prove otherwise.

So are public schools dead ends? Of course not. Tens of millions of children attend them every year, and most will do fine in their lives. Of course, most likely would do well no matter where they went to school, and probably at a fraction of what we currently pay. But DeVos did not actually say that the schools themselves were dead ends. She said that the public schooling system—a government monopoly—is a dead end for entrepreneurship and innovation. “We are the beneficiaries of start-ups, ventures, and innovation in every other area of life, but we don’t have that in education because it’s a closed system, a closed industry, a closed market,” DeVos said in a 2015 speech. “It’s a monopoly, a dead end.”

Is DeVos right? To see for yourself, watch Andrew Coulson’s School Inc., now showing on PBS stations around the country. Why we have so little innovation in education is the central point of the highly engaging documentary. Coulson examines education and other industries both historically and around the modern world, and illustrates that freedom for people who make things, or perform services such as teaching, coupled with paying customers and an ability to make a profit—yes, a profit!—are the keys to unleashing innovation at scale, to the benefit of all.

At the touch of a screen, you and I can now listen to tens-of-thousands of different pieces of music stored on a device that also makes telephone calls, lets you play video games, empowers you to surf the Internet, and much more. That is a quantum leap from how we listened to music even just a couple of decades ago. Yet education is pretty much the same instructor-in-front-of-kids model it has been for centuries.

Apple, HTC, Samsung, all work for profits. Public schools? Not so much.

Essentially, profit shows that something is in demand—that freely choosing people find it of value—and that others could make money by producing something similar, or better. This takes innovation to scale while driving prices down. Not only is that not evil, as emotionally charged critiques of profit imply, it is a classic win-win!

Today’s DeVos-Weingarten confab is likely to be a nice show for public schools, illustrating that they are not dead ends. But DeVos did not say they were, and what she did say—a government monopoly suffocates innovation—is grounded in extremely well documented—and documentary—reality.

Since today is 4/20, a day that marijuana users celebrate, it is an appropriate occasion to consider government policy on this subject. All too often, people in the news media try to joke and chuckle about marijuana use. That’s unfortunate because there are very serious issues surrounding the government’s policy of criminalizing possession and use. 

More than 20 million Americans use marijuana regularly. Millions more use it occasionally.  In the eyes of the law, all these people are considered “criminals.”  That is absurd–and not unlike the sad chapter in U.S. history when the government tried to ban alcohol consumption. There is a marijuana arrest in the U.S. every minute of every day all year round. Some go to prison, some spend short periods in jail, others go to drug court. Everyone will get an arrest record. It is a tremendous waste of time and money.

John Oliver is once again on the mark with his critique of marijuana policy. Take a few minutes to listen to his words of wisdom, then blast it to your friends on social media and remind them that the war on marijuana isn’t just about those who choose to use marijuana any more than alcohol prohibition was just about those who liked to drink. The war has many destructive side-effects and should be ended immediately. During his campaign, Trump said marijuana legalization was a matter for the states to decide. If he’s not going to reverse federal law, he should at least allow the states to opt out of the war on marijuana. 

For related Cato scholarship, go herehere, and here.

In a recent op-ed at The Federalist, I argued Donald Trump has serious leverage over both Republicans and Democrats in Congress when it comes to ObamaCare:

President Trump can force Republicans and Democrats back to the negotiating table, and get a bill that keeps his promises to fully repeal Obamacare and to protect people with preexisting conditions…by simply undoing the illegal actions by his predecessor, which he has also already promised to do.

One of those illegal actions is the illegal exemption from ObamaCare that President Barack Obama granted members of Congress and their staffs.

Another is the illegal “cost-sharing” subsidies President Obama began issuing – and that President Trump is still issuing – to insurers participating in ObamaCare’s Exchanges. In a case where the House of Representatives challenged the payments, a federal judge ruled that issuing those payments “violates the Constitution” and ordered them to stop, pending appeal. The Obama administration was pursuing an appeal, but the Trump administration has not indicated whether it would continue to appeal that ruling or enforce the judge’s order. Trump must do one or the other.

Two of President Trump’s cabinet picks have practically forced his hand on this issue.

When the federal district-court judge issued her ruling striking down the cost-sharing subsidy payments, Health and Human Services Secretary Tom Price was a Republican member of Congress. He issued a statement endorsing the ruling:

Today, Congressman Tom Price, M.D. issued the following statement after a federal judge ruled in favor of House Republicans’ lawsuit against Obamacare, saying that the Administration does not have the power to spend money on “cost sharing reduction payments” to insurers without an appropriation from Congress:

“The ruling proves a momentous victory for the rule of law and against the Obama Administration’s overreach of Constitutional authority,” said Congressman Tom Price, M.D. “This historic decision defies the Obama’s Administration’s ask that the courts disregard the letter of the law and reasserts Congress’s power of the purse as defined by our nation’s founders in Article One of the Constitution.”

“In recent weeks, we’ve seen insurers announce that they will exit the exchange markets in 2017, further deteriorating patients’ access and choice to health care plans that they want. This is yet again proof that Obamacare is on an unsustainable path, and House Republicans must remain committed to repealing and replacing this law. As a member of the Health Care Task Force, I’m honored to be working with my colleagues to advance positive, patient-centered solutions to the challenges in our health care system.”

Price has made clear his view that Congress did not appropriate funding for these payments, and that continuing to make them would constitute executive overreach and violate the rule of law. If President Trump chooses to appeal the lower-court ruling, he would put Price in a situation where he would have to help implement a policy that he considers unconstitutional. Price arguably would have to resign.

Yesterday, Trump’s attorney general Jeff Sessions expressed his view that the payments are unconstitutional and that the lawsuit challenging those payments “has validity to it.” If Trump chooses to appeal the lower-court ruling, Sessions would be the guy who carries out that appeal. It would be…awkward for him to defend a policy he believes to be unconstitutional. If Trump asks him to do so, Sessions too may have to resign.

Continuing President Obama’s illegal cost-sharing reduction payments could cost President Trump two cabinet officials.

The First Amendment says that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” Both of these religion clauses have been made applicable to the states via the Fourteenth Amendment. The continuing question is how they interact with one another – the play in the joints,” the Supreme Court has called it – in particular regarding when the government can treat religious institutions differently than secular ones, and when it must do so to avoid endorsing or entangling itself with religion.

Yesterday the Supreme Court heard oral argument in Trinity Lutheran Church v. Comer, which involves a Missouri program that provides subsidies to construct playground flooring out of recycled old tires. Trinity Lutheran Church runs a daycare center that had a playground open to the public, so it applied for a grant under the competitive program – and was denied solely because it’s a church. Missouri defended its position by citing a state constitutional provision that prohibits state funds from going to support religion. (For more on these Blaine Amendments, see this summary.) The U.S. Court of Appeals for the Eighth Circuit upheld the state denial, the Supreme Court agreed to hear the case, and Cato filed a brief supporting the church.

That’s when things got weird. The high court agreed to hear the case back in January 2016, but then Justice Antonin Scalia died. Even though briefing proceeded apace, the case wasn’t scheduled for argument before the end of the term in June. When the argument calendar was released for the new term that started in October, Trinity Lutheran was still not there. The conventional wisdom was that the justices must have thought that there would be a 4-4 deadlock. But then lo and behold in early February – days after Neil Gorsuch’s nomination – two other cases that had been granted at the same time as Trinity were scheduled for argument in March. A couple of weeks after that, when Gorsuch’s confirmation was by no means assured, the Court released its April calendar, which did include this religious-liberty case.

Was the Court simply confident that Gorsuch would take his seat in time, or did the chief justice think it unseemly to hold the case through another entire term? Either way, Gorsuch was indeed sworn in on April 10 – but that wasn’t the end of the drama. Late last week, the new governor of Missouri, Eric Greitens, changed the policy at issue, announcing that, going forward, religious organizations would be eligible for the scrap-tire subsidies, among other grants administered by the state’s department of natural resources.

The Court then asked the parties to submit letter-briefs about whether this latest development mooted the case or otherwise affected it. They both agreed that the argument should proceed, that the issue was a live one – in part because the governor’s policy decision could be reversed at any time and in part because lawsuits were expected over the reversal of course anyway. Curiously, the lawyer allowed by the state to argue for the old policy was the former solicitor general, who had been swept out of office along with the rest of the attorney general’s political appointees when Josh Hawley (a personal friend of mine, and a friend of Cato) was elected in November.

In any event, the argument proceeded apace and went very well for the church. Justice Anthony Kennedy opened the questioning by expressing concern for the use of religious status to deny government benefits. It was mostly downhill from there for the state, as Justice Samuel Alito launched into a devastating series of hypotheticals regarding Homeland Security funds for terrorism-prevention, grants to rebuild religious damaged in the Oklahoma City bombing, and other government transfers to pay for certain non-devotional expenses. Justice Stephen Breyer also got into that mix, questioning how provision of police, fire, and other public health protections okay but making playgrounds safe was not. Even Justice Elena Kagan, at first appearing skeptical of the church’s position, acknowledged her discomfort with the burden Missouri had placed on a constitutional right. Justice Gorsuch stayed quiet until the very end of argument, when he expressed bewilderment at how the Court was supposed to draw the line the state’s lawyer was suggesting between “general” or “universal” programs and “selective” ones like the scrap-tire grant here.

Justices Ruth Bader Ginsburg and Sonia Sotomayor were the only ones suggesting opposition to the church’s free-exercise and equal-protection arguments, and they were also the only ones who seemed inclined to see problems of mootness or “adversariality” after the change in state policy. That’s surprising, because if indeed the case is headed to a 7-2 resolution, then it would’ve been 6-2 without Gorsuch and there was no need to hold it for so long.  

Anyhow, my basic position remains what it was when this saga began: Missouri isn’t required to have a scrap-tire grant program, but once it created one, it must open it to all without regard to religious status.

(For more case background and commentery, see the case’s SCOTUSblog page, read the argument transcript, and listen to my Federalist Society teleforum that will be posted soon.)

Forty years ago tonight, President Jimmy Carter delivered his Address to the Nation on National Energy Policy, better known as the “Moral Equivalent of War” speech. Seated behind his ornate desk in the Oval Office and wearing a sober pinstriped suit, he offered a litany of dark predictions:

  • “The oil and natural gas we rely on for 75 percent of our energy are running out.”
  • “Unless profound changes are made to lower oil consumption, we now believe that early in the 1980s the world will be demanding more oil than it can produce.”
  • “World oil production can probably keep going up for another six or eight years. But some time in the 1980s it can’t go up much more. Demand will overtake production. We have no choice about that.”
  • “We can’t substantially increase our domestic production…”
  • “Within ten years we would not be able to import enough oil—from any country, at any acceptable price.”
  • “If we fail to act soon, we will face an economic, social and political crisis that will threaten our free institutions.”

To avoid that fate, Carter proposed a stiff programme of energy industrial policy, tax-enforced conservation, and alternative fuels research, which he outlined to Congress two days later. (Cleverly, the “Moral Equivalent” speech made no mention of the new taxes and gave few specifics on the other costs to the public.) Failure to embrace his proposals would result in energy scarcity and economic and social calamity in the next decade, he dourly warned.

“This difficult effort will be the moral equivalent of war,” he said, employing the title of William James’ essay concerning the virtues of martial society.

Congress declined to adopt much of Carter’s programme (though it did embrace such lemons as expanding the Strategic Petroleum Reserve and creating the Synthetic Fuels Corporation). Instead, federal lawmakers chose to (somewhat) deregulate energy, giving more freedom to market incentives to direct private energy exploration, production, and conservation. Four decades later, the world is consuming nearly 100 million barrels of oil a day, up from 60 million in 1977, at an inflation-adjusted price little different than it was 40 years ago. U.S. natural gas production is booming. Armageddon, so far, has not occurred.

It’s tempting to ridicule Carter for these gloomy claims. But he was hardly a fool and his proposals and predictions echoed  those made by esteemed energy experts and world leaders at that time—and at various times before and since. The earliest expert prediction I’ve found that the world would soon run out of oil was John Strong Newberry in 1875. The most recent chorus was about a decade ago. Expert a similar chorus five to 10 years from now, and again about 20–25 years from now, and again about a half-century from now, and again…

As the great energy economist Morry Adelman explained in the pages of Regulation more than a decade ago, many energy sources—especially hydrocarbons like oil and natural gas—are disposed to price cycles. Demand at a given price sometimes grows faster than supply, which results in higher prices, which results in new energy exploration, innovation, and investment, which results in lower prices, which leads to a new price cycle. This seems to happen every 15 or 20 years, which makes sense given that it takes about eight to 10 years to bring a new oil field online.

At one end of the price cycle, when prices are high and supply expansion is slow, there are plenty of predictions like Carter’s. Eight or 10 years later, those predictions are forgotten. Another eight or 10 years later, new dire predictions are made, with no memory of previous cycles and their accompanying predictions of doom.

Instead of ridiculing Carter’s speech, let’s hope people learn from it. It shows the power of markets to deal with resource constraints, and the flawed thinking of politicians–even well-intentioned, thoughtful ones. Most of all, it shows the importance of humility in the face of the latest faddish belief that the end is nigh and only government can save us.

An ordinance of the City of Sandy Springs, Georgia, prohibits the sale of sex toys. Businesses and individuals have challenged this statute as unconstitutional under the Fourteenth Amendment’s Due Process Clause in controlling their consensual, sexual behavior in the privacy of their homes. The district court and a panel of the U.S. Court of Appeals for the Eleventh Circuit upheld the ordinance given the Eleventh Circuit precedent of Williams v. Attorney General (2004), which upheld an Alabama sex-toy-sales ban.

Cato has now joined the DKT Liberty Project on a brief to the entire (en banc) Eleventh Circuit asking it to overturn Williams, which is inconsistent with more recent Supreme Court precedent in United States v. Windsor (2013) and Obergefell v. Hodges (2015) (the DOMA and same-sex marriage cases, respectively). Williams had relied on Washington v. Glucksberg (1997), where the Supreme Court declared that for a right to be protected under the Fourteenth Amendment, its specific articulation must be “deeply rooted in our history and traditions” or “fundamental to our concept of constitutionally ordered liberty.”

Williams upheld the law after finding no history or traditions concerning sex toys, though the Fifth Circuit disagreed in 2008 in striking down a similar Texas restriction. Windsor and Obergefell then raised the protection of rights concerning private sexual intimacy and Obergefell described this right as “fundamental.” Obergefell also explicitly rejected the Glucksberg test, at least as applied to sexual intimacy, as “inconsistent with the approach this Court has used in discussing other fundamental rights.”

Williams also misinterpreted Lawrence v. Texas (2003), which in striking down a ban on homosexual sodomy made clear that it wasn’t merely the right to perform “a particular sexual act” that was in question in these intimacy cases, but the infringement of rights regulating “the most private human conduct, sexual behavior, in the most private of places, the home.” Lawrence also made clear that state assertion of a “morality” interest isn’t a sufficient justification for limiting the right to adult sexual intimacy. Lawrence held that, as to “whether the majority may use the power of the State to enforce these [moral] views on the whole society,” the answer is no.

Williams essentially ignored Lawrence, given that state’s only asserted interest in upholding the law here is also based on morality. Windsor also clarified the prohibition on morality being a “legitimate state interest” was a holding of Lawrence. The sexual devices at issue here implicate “the most private human conduct, sexual behavior … in the most private of places, the home.”

Although the Sandy Springs ordinance only prohibited the sale of sex toys, and not possession or use, even Williams recognized that “restrictions on the ability to purchase an item are tantamount to restrictions on the use of that item.” The Supreme Court also recognized in Carey v. Population Services International (1977) that the same test must be used for such burdens on the right as prohibiting its exercise entirely, noting that the burden need not be “as great as that under a total ban on distribution.”

Williams is simply no longer good law and should be overturned. Bans on commercial access to sex toys, like restrictions on other forms of sexual intimacy, are unconstitutional. The Eleventh Circuit will hear Flanigan’s Enterprises v. City of Sandy Springs later this spring.

The Fifth Amendment’s Takings Clause states that the government may take no property for public use without just compensation. Unfortunately, local governments often see the Takings Clause not as a fundamental safeguard of liberty so much as an inconvenient obstacle getting in the way of preferred policy outcomes.

One way cities have devised to avoid their obligations to provide just compensation is to condition issuance of land-use permits on landowners’ surrendering property rights the government would otherwise have had to pay for (what’s a little extortion between friends). That’s exactly what the City of West Hollywood is attempting to do with a zoning ordinance that requires developers who build multi-unit housing to either (1) sell or rent a percentage of that housing at below-market prices or (2) pay an “in lieu” fee that the city calculates using a formula created by statute.

Shelah and Jonathan Lehrer-Graiwer sought a permit to build an 11-unit development and elected to pay the in-lieu fee under protest, later challenging it as an unconstitutional taking. The trial court, following binding state-court precedent, found in favor of the city, and the California Court of Appeals affirmed. Now the property owners seek U.S. Supreme Court review.

Cato, joined by Reason Foundation and the National Association of Home Builders, and with the assistance of Antonin Scalia Law School’s Supreme Court clinic, has filed a brief supporting that request.

Under the Supreme Court’s decisions in Nollan v. California Coastal Commission (1987) and Dolan v. City of Tigard (1994), the government may not require a property owner to surrender a constitutional right (here, to just compensation for a taking of private property) in exchange for permit approval unless there’s an “essential nexus” between the conditions and an alleged harm that would be caused by the development. The conditions must also be roughly proportional to the expected impact.

According to the trial court here, Nollan and Dolan are “inapplicable because the in-lieu fees were assessed pursuant to a generally applicable ordinance rather than an ‘ad hoc’ discretionary permitting decision,” even though there’s no dispute that the fee has no relation whatsoever to any alleged public harm that may result from the new development. The legislative nature of the permit restrictions, the court held, simply forecloses a Fifth Amendment challenge.

But there’s no basis in law or logic for exempting legislatively imposed conditions from Nollan/Dolan analysis. The Supreme Court has never distinguished between legislatively imposed conditions and property-specific conditions imposed by municipal officials. As Justice Thomas remarked in his dissent from the Court’s denial of review in a similar case, “It is not clear why the existence of a taking should turn on the type of governmental entity responsible for the taking.”

There’s little reason to believe legislators are any less prone to seeking a way around the Takings Clause and, indeed, legislators have the ability to target a far broader segment of property owners than agencies engaging in ad hoc determinations. That’s why the Supreme Court should take up the case of 616 Croft Ave., LLC v. City of West Hollywood.

The last few weeks have seen a surprisingly activist foreign policy from the Trump administration. Since the inauguration, the rate of U.S. airstrikes in Iraq and Syria, the willingness to launch special operations raids in countries like Yemen, and the use of taunting rhetoric towards adversaries had all increased in comparison to the Obama administration.

But this month things seems to have been put into hyper-drive. Trump authorized a symbolic punitive airstrike on a Syrian military base–a serious escalation that had no legal authority. The administration also threatened to engage in preventive war against North Korea if it should move forward with a sixth nuclear test. Trump ordered an aircraft carrier strike group to sail within 300 miles of North Korea’s coastline in a show of force meant to bolster this threat. And finally, Trump’s penchant for militarism was on display when the biggest non-nuclear bomb in America’s arsenal, never before used in active combat, was dropped in Afghanistan.

It’s hard to say whether these are signs of a clear Trump Doctrine emerging, or whether this intensification of military activism abroad simply reflects Trump’s character. One can easily recall warnings from candidate Trump’s opponents, on the Democratic side but also from many in his own party, that he was temperamentally unfit for office.

In the latest edition Survival, Francios Heisbourg, Chair of the International Institute for Strategic Studies Council, which publishes the journal, compares Trump to Kaiser Wilhem II, the leader of Germany from 1888 to 1918. Wilhelm II goes down in history as the man who took Germany down the path of naval expansion, colonial aggrandizement, and aggressive militarism, eventually contributing to the outbreak of World War I thanks to military postures that were a great departure from those of the more restrained Otto Von Bismark, whom the Kaiser dismissed in 1890. Heisbourg quotes a German historian describing Wilhelm II thusly:

[He had] a taste for the modern–technology, industry, science–but at the same time [was] superficial, hasty, restless, without any deeper level of seriousness, without any desire for hard work…without any sense of sobriety, or balance and boundaries, or even for reality or real problems, uncontrollable and scarcely capable of learning from experience, desperate for applause and success…He wanted every day to be his birthday–unsure and arrogant, with an immeasurably exaggerated self-confidence and desire to show off.

Perhaps not an unfair comparison to President Trump. As it happens, I came across another description of the Kaiser that seems equally relevant, this time in Yale historian Donald Kagan’s On the Origins of War and the Preservation of Peace, citing a biographer of the German leader:

The last Kaiser’s most pronounced–and most fatal–characteristic was his habitual inclination to act almost entirely on the basis of personal feelings…[H]is implementation in the mid-1890s of a reactionary domestic regime, and the campaign a few years later to construct a gigantic navy can be traced to vanity or pique. This ineffable tendency to personalize everything stands revealed in the Kaiser’s correspondence…or his marginal comments…on countless documents, which display passion but rarely judgment.

Whole libraries can be filled with explanations for the outbreak of World War I, and the Kaiser’s temperament and character likely make up an insignificant fraction of them. But one can certainly make the argument that the prudent, sober, skillful, and restrained foreign policy Germany pursued under Bismark from in 1871 until Bismark’s dismissal in 1890 contributed to an era of European peace many contemporaries didn’t think possible. And by contrast, Wilhelm II’s pettiness, lack of prudence, obsession with honor and status, and militaristic tendencies helped lead Germany down the road to war and, eventually, at the end of his rule, to ruin in 1918.

Historical analogies are by nature inexact. And I don’t believe Trump’s foreign policy will be so disastrous as to lead to the devastation of post-WWI Germany. But character and temperament matter and, unfortunately, the checks and balances that are supposed to constrain the president’s war powers have whittled away over many years. With luck, this administration will learn that, in dealing with tough adversaries and dangerous geopolitical flashpoints, the sticks of foreign policy have to be matched with carrots. Otherwise, the risk of war increases.

Scott Alexander (SA) has provided advice to the free speech movement in general and to a student group at Harvard University in particular. If you want more people, especially on the liberal left or within the social justice movement, to support free speech, he says, then you should not invite speakers just because they are controversial.

SA picks AEI scholar and social scientist Charles Murray as an example. In March, protesting students at Middlebury College shut down Murray when he was invited to speak and debate a local professor. SA defends Murray’s right to speak, but says that if a college invites him or any other controversial speaker it should be because they are interested in his ideas, not because they want ”to invite a generic offensive person and he fits the bill.”

Does SA really believe that the motives behind an invitation to a controversial speaker make any difference to people who believe that he or she shouldn’t be allowed to speak at a given college? I doubt it. To them, the speaker (in this case Charles Murray) is the problem, it’s not whether the organizers had a sincere interest in Murray’s ideas or just were looking for ”the ugliest and most hateable person” they could find.

Allison Stanger, the professor at Middlebury who was supposed to debate Murray, has deep disagreements with Murray and planned to take his arguments apart as best as she could. It didn’t matter to the students. They didn’t want to have Murray in person at the college.

And by the way, there is no such thing as ”a generic offensive person.” The sense of offense and insult is always in the eye of the beholder, it’s not something one can measure in any objective way. What is offensive to SA, may sound like sweet poetry to someone else. (Recall the U.S. Supreme Court Justice John Marshall Harlan II’s remark that “one man’s vulgarity is another’s lyric.”) Even within the same religious or ethnic or political community, there may be different perceptions of what is offensive to the group and its members. This remark may seem banal. But we should keep in mind its truth at a time of grievance fundamentalism when people play the offense card to silence voices whose opinions they don’t like. This truth is especially important for the academic world whose business is knowledge production.

SA has criticized the Open Campus Initiative on Harvard University for wanting to raise awareness of free speech by inviting controversial speakers. It later turned out that the student group’s intention was to promote ”ideological diversity for the student body where it is believed to be lacking,” not just to pick the most controversial speakers. They also said that later on that they would invite speakers from the left.

There are several problems with SA’s reasoning. Let me deal with a few.

1. SA’s insists that if we invoke free speech to justify some unpopular idea, this idea becomes a little more tolerated and free speech becomes a little less popular. He doesn’t provide any evidence for this debatable assertion. First, if you invite a speaker that is perceived to be controversial to the audience, it doesn’t follow that you are doing so to defend this person’s ideas. Second, toleration of unpopular ideas doesn’t imply that you agree with those ideas or endorse them. Toleration means that you have to live with ideas that you hate or dislike without trying to ban them or shut them down through violence, threats, or intimidation. To be tolerant of bad ideas implies that we express our disagreement and discontent to refute them. Tolerance makes it possible to manage disagreements and diversity without resorting to violence and bans. This is what the First Amendment is all about. It is still worth remembering Michael Walzer’s concise words on the essence of tolerance: ”Toleration makes difference possible, difference makes toleration necessary.”

2. SA believes that controversy and controversial speakers in and by themselves are to be avoided if student groups want to promote free speech.

First, according to the dictionary controversy means ”a lot of disagreement or argument about something, usually because it affects or is important to many people.” A controversy is ”a discussion marked especially by the expression of opposing views.” A person is controversial when he or she ”is causing disagreement and discussion.” The opposite of controversial is undisputable, agreeable, certain, irrefutable, and uncontested. Who wants a speaker whose views are ”undisputable”, ”irrefutable,” or ”uncontested”? Maybe in a political party or religious community, but not at a university. What’s the point of inviting a speaker with opinions on issues of the day if you don’t want to have debate and controversy?

Questions of politics, religion, culture, philosophy, social science, history, and economics, areas with no consensus on the fundamental issues among professionals and lay people, are inherently controversial and therefore prone to controversy. Controversy is to be welcomed at universities if we want them to be institutions of knowledge production.

Second, SA posits that controversial speakers and controversy will reinforce polarization. Maybe. Or maybe not. A key explanation for the growing polarization in society and online is that more and more people are living in bubbles where they only are being exposed to point of views with which they agree. Ideological self-segregation has been harmful to our capacity for tolerance. Tolerance doesn’t come naturally to human beings. It has to be taught and cultivated. Our instincts are not in favor of toleration. In order to grow and mature as human beings, we have to learn to grapple with ideas that challenge our beliefs and make us uncomfortable.

Further, why am I not sure controversy will create more polarization as SA suggests? Well, many empirical studies on social psychology indicate that when people find themselves in groups of like-minded types, they are especially likely to move to extremes. According to Harvard law professor Cass Sunstein, providing room for ideological diversity may help fight extremism and destructive polarization. ”A good way to create an extremist group, or a cult of any kind,” writes Sunstein in his book Going to Extremes: How Like Minds Unite and Divide, “is to separate members from the rest of society. (…) With such separation, the information and views of those outside can be discredited, and hence nothing will disturb the process of polarization as group members continue to talk. Deliberating enclaves of like-minded people are often a breeding ground for extreme movements.”

This doesn’t mean that individuals and society won’t benefit from deliberations within communities. It promotes the development of positions that would otherwise be invisible or silenced. Many social movements have been made possible through this route, including the civil rights movement and the LGBTQ rights movement. However, it is important to ensure that such enclaves are not walled off from competing views and that there is an exchange of views between members of a group and those who disagree with them.

It is self-insulation rather than group deliberation as such that carries with it the most serious dangers.

Jonathan Haidt, a professor of moral psychology at New York University and founder of Heterodox Academy, in a recent interview with the Wall Street Journal compared the ideological orthodoxy among some students to the kind of fundamentalism that characterizes some religious communities. Though the majority of college students want to learn, Haidt said, there are ”some true believers who have reoriented their lives around the fight against evil,” and ”they are transforming the campus from a citadel of intellectual freedom into a holy space—where white privilege has replaced original sin, the transgressions of class and race and gender are confessed not to priests but to ‘the community,’ victim groups are worshiped like gods, and the sinned-against are supplicated with ‘safe spaces’ and ‘trigger warnings.’”

Unfortunately, these fundamentalists have been given the heckler’s veto on some campuses, and often they are granted it by a weak-willed university administration.

It seems to me that the Open Campus Initiative wants to counter this troubling trend. That’s a good thing. SA’s criticism would be valid if the vast majority of students and faculty were in agreement with the ”controversial speakers” the Open Campus Initiative wanted to invite, and if the student group inviting him was the only one at Harvard. That would not promote ideological diversity. Both premises are not correct in this case.

3. SA defends Charles Murray’s right to free speech in a problematic way. He says: ”If Charles Murray believes what he says is important and thinks saying it makes the world a better place, then he is the sort of person whom free speech exists to defend.”

What if Charles Murray doesn’t believe that what he says is important and that it won’t make the world a better place? Would he then be the sort of person whom free speech shouldn’t defend? And who is in a position to decide what is important and what makes the world a better place? I am sure Milo Yiannopoulos thinks that what he says on college campuses is important and might make the world a better place, though I and SA may be of a different opinion. SA fears that people like Milo Yiannopolous undermine free speech as part of the commons when he says outrageous things that seek the protection of free speech. Again, who’s to decide? The only way to counter Milo Yiannopolous as long as he doesn’t incite violence is to ignore him or talk back: mock him, ridicule him, insult him, debunk his arguments, and take them apart. But don’t ban him and don’t use violence to silence him.

It seems to me that by calling for a moratorium on inviting speakers that ideological fundamentalists want to ban and prevent from speaking on college campuses, SA is trying to treat symptoms with the wrong medicine rather than curing the disease with the right medicine.

Flemming Rose is a Senior Fellow at the Cato Institute and the author of The Tyranny of Silence.

 

 

My crusade against the border-adjustable tax (BAT) continues.

In a column co-authored with Veronique de Rugy of Mercatus, I explain in today’s Wall Street Journal why Republicans should drop this prospective source of new tax revenue.

…this should be an opportune time for major tax cuts to boost American growth and competitiveness. But much of the reform energy is being dissipated in a counterproductive fight over the “border adjustment” tax proposed by House Republicans. …Republican tax plans normally receive overwhelming support from the business community. But the border-adjustment tax has created deep divisions. Proponents claim border adjustability is not protectionist because it would automatically push up the value of the dollar, neutralizing the effect on trade. Importers don’t have much faith in this theory and oppose the GOP plan.

Much of the column is designed to debunk the absurd notion that a BAT is needed to offset some mythical advantage that other nations supposedly enjoy because of their value-added taxes.

Here’s what supporters claim.

Proponents of the border-adjustment tax also are using a dodgy sales pitch, saying that their plan will get rid of a “Made in America Tax.” The claim is that VATs give foreign companies an advantage. Say a German company exports a product to the U.S. It doesn’t pay the American corporate income tax, and it receives a rebate on its German VAT payments. But an American company exporting to Germany has to pay both—it’s subject to the U.S. corporate income tax and then pays the German VAT on the product when it is sold.

Sounds persuasive, at least until you look at both sides of the equation.

When the German company sells to customers in the U.S., it is subject to the German corporate income tax. The competing American firm selling domestically pays the U.S. corporate income tax. Neither is hit with a VAT. In other words, a level playing field.

Here’s a visual depiction of how the current system works. I include the possibility that that German products sold in America may also get hit by the US corporate income tax (if the German company have a US subsidiary, for instance). What’s most important, though, is that neither American-produced goods and services nor German-produced goods and services are hit by a VAT.

Now let’s consider the flip side.

What if an American company sells to a customer in Germany? The U.S. government imposes the corporate income tax and the German government imposes a VAT. But guess what? The German competitor selling domestically is hit by the German corporate income tax and the German VAT. That’s another level playing field. This explains why economists, on the right and left, repeatedly have debunked the idea that countries use VATs to boost their exports.

Here’s the German version of the map. Once again, I note that it’s possible–depending on the structure of the US company–for American products to get hit by the German corporate income tax. But the key point of the map is to show that American-produced goods and services and German-produced goods and services are subject to the VAT.

By the way, it’s entirely possible that an American company in Germany or a German company in America may pay higher or lower taxes depending on whether there are special penalties or preferences. Those companies may also pay more or less depending on the cleverness of their tax lawyers and tax accountants.

But one thing can be said with total certainty: The absence of an American VAT does not result in a “Made-in-America” tax on American companies. Even Paul Krugman agrees that VATs don’t distort trade.

Moreover, Veronique and I point out that the lack of a VAT creates a big advantage for the United States.

One big plus for Americans is that Washington does not impose a VAT, which would enable government to grow. This is a major reason that the U.S. economy is more vibrant than Europe’s. In Germany, the VAT raises so much tax revenue that the government consumes 44% of gross domestic product—compared with 38% in America.

And to the extent that there is a disadvantage, it’s not because of some sneaky maneuver by foreign governments. It’s because of a self-inflicted wound.

America’s top corporate income tax of 35% is the highest in the developed world. If state corporate income taxes are added, the figure hits nearly 40%, according to the Congressional Budget Office. That compares very unfavorably with other nations. Europe’s average top corporate rate is less than 19%, and the global average is less than 23%… That’s the real “Made in America Tax,” and it’s our own fault.

The column does acknowledge that BAT supporters have their hearts in the right place. They are proposing that new source of revenue to help finance a lower corporate tax rate, as well as expensing.

But there’s a much better way to enable those pro-growth reforms.

If Congress simply limits the growth of outlays to about 2% a year, that would create enough fiscal space to balance the budget over 10 years and adopt a $3 trillion tax cut. If Republicans want a win-win, dropping the border-adjustment tax is the way to get one.

And what if Republicans aren’t willing to restrain spending? Then maybe the sensible approach is to simply cut the corporate tax rate and declare victory.

A group called People Helping People heard of potential civil rights abuses and harassment occurring at Border Patrol checkpoints in Arizona—interior ones, not right at the border—so started a campaign to monitor such activity. The Border Patrol then decided to prohibit any recording within 150 feet of their location, which includes the public roadside.

A federal district court found that the new rule was a valid time, place, or manner restriction on First Amendment-protected activity. Cato, with the assistance of the UCLA Law School First Amendment Clinic and noted scholar Eugene Volokh, has filed an amicus brief asking the U.S. Court of Appeals for the Ninth Circuit to reverse that ruling.

Recording of law enforcement officers engaged in the public performance of their duties promotes the free discussion of government affairs. The roadside in this case is a “traditional public forum” of the sort that the Supreme Court has held to be required to be open to First Amendment-protected activities. The Border Patrol even got a permit that requires that the facilities be “maintained in a manner that will not interfere with the reasonable use of the public right-of-way.” The government cannot choose to shut down such a forum when it is still being used as a public thoroughfare.

There is also evidence that the Border Patrol closed this area specifically in retaliation for People Helping People’s First Amendment activities; new barriers were added within hours of the start of the monitoring program, making it significantly harder to film, and passers-by were told that the barriers were there only to exclude protesters.

The restriction is also not valid because it does not leave open “alternative channels of communication,” as the Supreme Court has required. In McCullen v. Coakley (2014), the Supreme Court struck down a 35-foot buffer zone around an abortion clinic because it burdened more speech than was necessary to advance the government’s interest. A 150-foot buffer zone burdens even more speech, entirely preventing the recording of law enforcement officers, rather than merely regulating the means of doing so.

Even if this were not a public forum, the Border Patrol’s policy constitutes viewpoint discrimination because it allowed observers who were critical of People Helping People to enter the enforcement zone and record. At base, this restriction is unreasonable because there is no articulable reason to prohibit recording from a public roadside that doesn’t interfere with the Border Patrol’s activities.

When the Ninth Circuit takes up Jacobson v. Department of Homeland Security later this spring/summer, it should reverse the district court and strike down the Border Patrol’s buffer zone.

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 monthly “Current Wisdom.”

However, in addition to some very wet periods, the [Southeast] region has also experienced periods of extreme drying.
- U.S. Global Change Research Program, 2014

The quote above is from the 2014 federal report, Climate Change Impacts in the United States, Southeastern Region. Given the title and the subject, one would have to conclude that our government is telling us that this is a result of climate change.

“Authoritative” documents such as this often wind up in legal proceedings, as the “science” backup for proposed regulations. As such, statements of this ilk should be based upon some semblance of reality.

We find that many of these “factuals” are indeed subject to test. The one above is yet another assertion that climate change, presumably caused by emissions of carbon dioxide, is the cause of an increase in the frequency or severity of “extreme” events.

Floods and droughts qualify. After all, a flood is merely a cases of extreme high streamflow, and a prolonged drought will result an extreme low. Further, it is hard to find any weather extreme, any hurricane, tornado or wildfire where some apparent authority finds a television camera and does not blame it on global warming.

The folly of such claims, however, is easily exposed by long-term data sets that go beyond the instrumental period. Such records reveal the true nature of natural climate variability and invariably show that present-day extreme weather events are in nearly every case eclipsed in frequency and magnitude by events from the historic past. And because such historic events occurred prior to the bulk of societal industrialization and the modern buildup of CO2 in the atmosphere, there is zero chance that those historic events were caused by human emissions of greenhouse gases. Recognizing these facts, as long as current extreme weather events remain within the realm of natural variability observed over the recent historic past, one cannot conclude with any degree of certainty that current extreme weather events have any anthropogenic or human-induced component in them. Stated another way, one simply cannot reject the hypothesis that such events are entirely natural.

Nor is it often very difficult to find data to test whether an assertion is true. With regard to southeastern floods and droughts, the recent study of Harley et al. (2017) is germane.

The storied Suwannee River is the second largest river system in Florida and is the least impacted by human disturbance. There are very good streamflow records beginning in 1927 that reveal multiple periods of flood (high flow) and drought (low flow) superimposed on a long-term linear decline in discharge rate that led to recently recorded low flows. Is it because of dreaded climate change, especially during the period of record low monthly flows observed during 2010 and 2011? According to the authors, this drought produced “widespread negative impacts on the economy and ecology of the basin.”

In order to generate a longer, “proxy” record of streamflow, Harley et al. analyzed new and existing tree-ring chronologies from multiple tree species to produce a reconstruction of March through October Suwannee River discharge for the past 450 years. The method is in principal straightforward, requiring a composite of the tree-ring data be statistically related to the observed streamflow records, and then back-calculating the proxy streamflow prior to the instrumental record.

There are a lot of solid criticisms of the use of tree rings to generate proxy temperatures, mainly because, in many instance, the ring width is a more a function of available water than it is one of temperature. The relation to rainfall is especially strong in an environment like Florida, where warm-season temperatures vary little from year to year.

Results of their analysis are shown in the figure below, which displays an 11-year running mean of standardized river flow anomalies relative to the long-term mean (1550-2005). The most intense and prolonged wet and dry periods did not occur during the instrumental record. Rather, they occurred during the historic past long before humanity increased the CO2 concentration of the atmosphere by any significant amount. What is more, it is interesting to note the “drastic hydroclimatic shift” from extremely dry to extremely wet conditions that occurred naturally around 1860. And as for the cause(s) of the streamflow variability, Harley et al. report finding multiple periodicities in the reconstructed data (2-5, 7, 11, 45 and 85 year bands are statistically significant), which, they suggest, indicate “the important influence of coupled oceanic-atmospheric processes” over the past four-and-a-half centuries.  

Figure 1. Historic streamflow of the Suwannee River based on an 11-year running mean of standardized river flow anomalies relative to the long-term mean (1550-2005). Adapted from Harley et al. (2017).

The take-home message of Harley et al.’s work is summarized in their statements that (1) “we found that instrumental period flow conditions do not adequately capture the full range of variability of the Suwannee River beyond the observational period,” and (2) wet-period “pluvials and droughts that eclipse instrumental events in terms of severity and duration have occurred during the 16-19th centuries,” which latter finding they add is “echoed by other studies of long-term precipitation variability in the Southeast U.S. (e.g., Stahle and Cleaveland, 1992; Cook et al., 2007; Seager et al., 2009).”

Clearly, therefore, based on the material presented in the work of Harley et al., there is no discernible human impact on Suwannee River streamflow over the instrumental record; and there is no compelling reason to conclude that anything other than natural climate variability has contributed to the extreme wet and dry periods observed in this portion of the globe over the past 450 years.

 

References

Cook, E.R., Seager, R., Cane, M.A. and Stahle, D.W. 2007. North American drought: reconstructions, causes, and consequences. Earth Science Reviews 81: 93–134.

Harley, G.L., Maxwell, J.T., Larson, E., Grissino-Mayer, H.D., Henderson, J and Huffman, J. 2017. Suwannee River flow variability 1550-2005 CE reconstructed from a multispecies tree-ring network. Journal of Hydrology 544: 438-451.

Seager, R., Tzanova, A. and Nakamura, J. 2009. Drought in the southeastern United States: causes, variability over the last millennium, and the potential for future hydroclimate change. Journal of Climate 22: 5021–5045.

Stahle, D.W. and Cleaveland, M.K. 1992. Reconstruction and analysis of spring rainfall over the southeastern US for the past 1000 years. Bulletin of the American Meteorological Society 73: 1947–1961.

 

Establishment reporters don’t seem to think that anything good happens in society without a stream of federal money attached to it. That sort of tunnel vision was on display in a recent Washington Post story about the Appalachian Regional Commission (ARC). And it was on display again in the Post today in a story about the National Endowment for the Arts (NEA).

The story discusses NEA projects in Indiana, a state presumably chosen for the same reason that the prior story focused on the ARC and Kentucky: the Post wants to sow dissension in a part of the country that voted for Trump.

NEA-Indiana projects described by the Post include $3,000 for a tunnel made of twisted branches and $10,000 for a sound project that “takes place in multiple spaces and includes a hangout where visitors can listen to records, have a coffee or beer, and will eventually include a low-powered FM radio station.” Numerous NEA grants seem to trickle through state and local governments before being dispensed to local artists and nonprofits, thus creating jobs for paper pushers along the way.

The story warns that the NEA is “under attack.” President Trump “has proposed eliminating the agency altogether.” What a heathen! In Indiana, “artists and nonprofit leaders in small towns or underserved communities fear that lawmakers don’t understand how much they depend on the millions of arts dollars distributed each year outside booming metropolises.”

The NEA’s annual budget is $150 million. Indiana has two percent of the U.S. population, so I would guess that it receives about two percent of NEA funding, or $3 million a year.

If NEA spending in Indiana is important, couldn’t Indiana governments and philanthropists support it? State and local governments in Indiana currently spend $43 billion a year from their own revenue sources. Couldn’t they carve out just $3 million—or 0.007 percent—of that to support local quilters, hoop net makers, puppeteers, and other Indiana craftspeople?

For further reading on the NEA, see here.

Who pays for women’s mandated paid leave and other women-centric labor policies? At a superficial level, it depends on who you ask. Proposals for federal mandated paid leave and child care laws run the gamut, and advocates identify government, taxpayers, or private companies as backers. Unfortunately, those answers reveal a glaring oversight: directly or indirectly, women will pay.

Economists of a variety of ideological persuasions agree, including Larry Summers, former Director of the National Economic Council for President Obama. In 1989, Summers wrote “Some Simple Economics of Mandated Benefits” where he asserted that “The expected cost of mandated benefits is greater for women than it is for men.”

What does that mean? In his paper, Summers concludes that women will be paid less or not hired as a result of mandated benefits. In his words, “If wages could freely adjust, these differences in expected benefit costs would be offset by differences in wages.” And if not? “[T]here will be efficiency consequences as employers seek to hire workers with lower benefit costs.”

In the real world, Summers’ predictions seem to be borne out. Jonathan Gruber, an MIT economist historically unopposed to economic intervention, authored research that “consistently suggest[ed]” women’s wages are reduced to reflect the cost of benefit mandates in states that try them. Gruber estimated that the shift in cost is around “the order of 100 percent.”

And more recent research indicates women “pay” for mandated paid leave and job protections in other ways.[1] According to Jenna Stearns, wage and job entitlements led fewer women to hold management positions and promotion-track jobs in Great Britain. Her research provides “evidence that access to job-protected paid maternity leave can actually exacerbate gender inequality among highly educated workers” [emphasis added].

Although proponents rarely mention it, the U.S. policy status quo holds some counterintuitive advantages. A 2015 study comparing the U.S. against other countries suggests that women in the U.S. are more likely to have full time jobs and work as managers or professionals. That difference is attributed to a lack of maternal wage and job entitlement policies.

Importantly, if the U.S. did move toward paid leave or job entitlements for women, the loss of wages and/or opportunities during childbearing-aged years would not be one-time penalties. Being passed over for a job, involuntarily mommy-tracked, or having wages slashed to pay for prospective benefits can have impacts that last a professional lifetime.

These points aren’t mentioned in the current debate, but they should be. As Summers concludes, “There is no sense in which benefits become ‘free’ just because the government mandates employers offer them to workers.” Intellectual honesty requires we don’t ignore this inconvenient, but important fact: paid leave means women pay.

 

[1] Additional evidence here

The ongoing controversy and litigation over the Trump administration’s “Muslim ban” has reignited a debate that has raged since the 9/11 attacks: Who commits more domestic terrorism–violent Salafists or traditional “right wing” extremists? According to a Government Accountability Office (GAO) report, it’s the latter and by a very wide margin. From p. 4 of GAO’s report:

Of the 85 violent extremist incidents that resulted in death since September 12, 2001, far right wing violent extremist groups were responsible for 62 (73 percent) while radical Islamist violent extremists were responsible for 23 (27 percent). 

But as researchers at the Georgia State recently reported, media coverage of terrorist incidents makes it seem as if terrorism is almost exclusively perpetrated by Muslims:

We examined news coverage from LexisNexis Academic and CNN.com for all terrorist attacks in the United States between 2011 and 2015. Controlling for target type, fatalities, and being arrested, attacks by Muslim perpetrators received, on average, 449% more coverage than other attacks. Given the disproportionate quantity of news coverage for these attacks, it is no wonder that people are afraid of the Muslim terrorist. More representative media coverage could help to bring public perception of terrorism in line with reality.

That incident-media reporting disconnect is matched by another: the notion that Arab/Muslim-Americans are more susceptible to radicalization, and thus to becoming terrorists, and that there are a discreet set of reliable indicators that will tell authorities who is or is not more likely to become a terrorist. 

The same month the Georgia State researchers released their terrorism-media bias findings, the Brennan Center released a report on the state of the debate and federal “countering violent extremism” (CVE) programs. Citing dozens of empirical studies and recognized experts in the fields of criminology, psychology, and intelligence, the report states “Extreme or radical views are often assumed to lie at the heart of terrorism. But evidence shows that the overwhelming majority of people who hold radical beliefs do not engage in, nor support, violence.”

With respect to the alleged role of Salafist ideology in motivating domestic acts of terror, the Brennan Center study quotes the FBI’s own assessment on the topic:

It is difficult to quantify the degree to which Islamist materials and ideologues — such as Anwar al-Aulaqi (US Person), Abdullah e-Faisal, and Feiz Muhammed, all of whom appeal to English-speaking audiences — played a part in the radicalization of the persons included in this assessment. … While Internet personalities are often cited as a source of radicalization, factors outside the scope of this assessment — such as social environment and personal psychology (how a person processes both external and internal messaging) — were also influential. 

As for claims that there are a combination of indicators that, if detected early enough, can tell family, friends, or local authorities who may be on the path to terrorism, the Brennan Center report uses the research and conclusions of former CIA officer Marc Sageman to rebut the notion. “…we still do not know what leads people to engage in political violence. Attempts to discern a terrorist ‘profile’ or to model terrorist behavior have failed to yield lasting insights.” 

That hasn’t stopped the FBI, via it’s now-infamous “Don’t Be A Puppet” website, from continuing to peddle the debunked “terrorist profile” concept. And as the Brennan Center report lays out, the FBI is only one of a number of federal, state, or local entities using discredited “terrorist profile” models.

Unfortunately, the Senate and House members who originally requested that GAO look at federal CVE programs–including Senate Homeland Security and Government Affairs Chairman Ron Johnson (R-WI) and ranking member Claire McCaskill (D-MO), along with House Homeland Security Committee ranking member Bennie Thompson (D-MS)–did not ask GAO to evaluate the theories and assumptions underlying federal CVE programs. Accordingly, the audit offers recommendations for tinkering with programs that discriminatorily and disproportionately target the Arab/Muslim-American community on the basis of long-since debunked notions about who and why someone becomes a terrorist. 

House and Senate members need to base federal counterterrorism policies on facts–such as the role U.S. foreign policy in the Arab and Muslim world plays in fueling terrorism. Members of Congress who want to win the war of “hearts and minds” vis a vis ISIS need to remember that our greatest weapon is a strict adherence to constitutional norms of free association and speech, and that targeting fellow citizens of Arab descent or the Muslim faith for evidence-free surveillance and political repression only validates the ISIS narrative that America is at war with the Muslim and Arab world.

 

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