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

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

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

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 Race to the Top is over, and No Child has been replaced by the Every Student Succeeds Act (ESSA).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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Cross-posted from Alt-M.org]

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

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

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

Source: Census Current Population Survey March Supplement

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

Source: Census Current Population Survey March Supplement

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

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

Source: American Immigration Council 

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

Source: Census Current Population Survey March Supplement (2014)

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

Source: Census Current Population Survey March Supplement

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

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

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

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

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

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

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

Libertarian movement historian Brian Doherty expands on his seminal influence:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Over at Cato’s Police Misconduct web site we have selected the worst case for the month of October.  It goes to the City of Minneapolis for its handling of an excessive force complaint against Officer Blayne Lehner.

Here’s the background: Lehner and his partner responded to domestic disturbance call at an apartment building where they found two women arguing with one another.   According to the news reports, the encounter was captured on video.  The owner of the apartment building was so disturbed by what he saw–Lehner pushing one of the women without cause–that he filed a complaint with the department.

Later, Police Chief Janee Harteau agrees that Lehner’s conduct was unacceptable.  The Chief terminates Lehner’s employment with the police department.

Only now a labor arbitrator has overturned that employment decision and has ordered the city to reinstate Lehner along with compensation for the time he has been off the force.

News reports also show that Lehner has been the subject of previous complaints and lawsuits:

City records show that since 2000, more than 30 complaint investigations have been opened against Lehner. The vast majority of investigations were closed with no discipline. One case from 2014 with the Office of Police Conduct Review is still open. Records show Lehner was suspended twice in 2013. However, the reasons for the discipline were not listed. Lehner was also issued two letters of reprimand in 2012.

In 2015, Lehner was sued by a man who claimed the officer kicked him in the face, breaking a few of his teeth and causing him to briefly lose consciousness. In a rare move, the city decided not to defend Lehner. However, the city later settled the case for $360,000.

Officer Lehner will soon be back to policing again.

This coming Tuesday, nine states will consider ballot initiatives that legalize marijuana for medical or recreational purposes under state law. Twenty-five states have already legalized marijuana for medical use, and four have legalized fully, and polls suggest many or most of the new initiatives will pass. Opponents nevertheless make strong claims about adverse consequences from existing and proposed legalizations. We argue, based on the evidence, that such claims are exaggerated, misleading, or outright false.

Legalizing marijuana dramatically increases use: Several countries (Portugal, the Netherlands, Australia, and part of the U.K.) have liberalized their marijuana laws with little or no impact on marijuana use. Research on U.S. medical marijuana laws suggests that adult marijuana use has increased only modestly. Preliminary data in Colorado and Washington, the two first states to legalize recreational marijuana, display similar trends in use before and after legalization.

Legalizing marijuana increases other substance use: Whether legalization affects other substance use depends on whether new consumers progress to drugs such as cocaine or heroin (the gateway effect) and whether existing consumers substitute marijuana for other substances.  No scientifically convincing evidence supports the gateway hypothesis for marijuana.  In fact, some research suggests that users substitute from alcohol toward marijuana after liberalization. Rates of cocaine use appear unchanged in the wake of recreational marijuana laws. Research on medical marijuana laws shows little impact on alcohol or cocaine use.

Marijuana is more dangerous than alcohol: In fact, abundant medical evidence points to alcohol as more dangerous than marijuana. Regular alcohol use, for example, can generate life threatening diseases such as cirrhosis of the liver; regular marijuana use has no similar effect.  Indeed, if legalization leads users to substitute from alcohol towards marijuana, as some research suggests, this implies reduced harm from marijuana and alcohol use overall.

Legalization generates crime. States adopting recreational marijuana laws display large declines in arrest rates for drug offenses and no changes in violent and property crime rates. Research on international changes in marijuana policy and U.S. medical marijuana laws similarly show that relaxing marijuana prohibitions does not increase crime. Moreover, the Drug War consumes significant resources and diverts police and judicial attention away from more serious crimes, so liberalizing marijuana may help to reduce other crime.

Marijuana legalization increases traffic fatalities: Colorado, Washington, Alaska, and Oregon have seen no significant change in fatal traffic crash rates or traffic fatalities post-legalization. Research on medical marijuana laws and decriminalization even suggests that liberalization leads to fewer traffic accidents.  Colorado has seen a rise in marijuana-related traffic fatalities, but this likely reflects increased testing for, or labelling of, the presence of marijuana in crash victims – rather than increased accidents caused by marijuana use – because declines in other drug-related traffic fatalities have offset those related to marijuana, resulting in no net change in drug-related traffic fatalities.

Marijuana legalization endangers public health.  On the contrary, legalization promotes public health by providing individuals with safer options to treat their pain. Medical marijuana laws are associated with fewer suicides. Recreational marijuana laws appear to have little or no impact on suicide rates, and they have not led to any public health epidemics. Meanwhile, medical marijuana laws have reduced admissions for substance abuse treatment.  During the years when marijuana dispensaries proliferated in Denver, marijuana-related emergency department admissions were stable.

Marijuana legalization harms youth.  Recent health survey data indicate that relaxing marijuana prohibition does not greatly increase adolescent marijuana use (perhaps in part because these liberalizations do not change the legal status of marijuana for minors). No evidence suggests that marijuana use causes poorer educational outcomes or lower standardized test scores.  The correlation between adolescent marijuana use and cognitive functioning disappears in analyses that control for relevant confounding variables.

Evidence on the liberalization of marijuana laws suggests that this loosening may have increased marijuana consumption modestly, at least among adults. It also seems to have reduced traffic fatalities, suicide rates, and crime rates. Although some drug use may harm users and others, policies more directly targeting these harms could reduce harms more cheaply and effectively.

Yesterday morning, Rep. John Lewis (D-GA) tweeted a picture of himself being arrested as a young man. He captioned it: “I’ve marched, protested, been beaten and arrested–all for the right to vote. Friends of mine gave their lives. Honor their sacrifice. Vote.”

That tweet has gotten 35,000 retweets at this writing, and it will get many more. It’s one of many efforts mainstream politicians and parties are mounting in the final days before the 2016 elections to drive more voters to the polls.

I do honor the sacrifices of Mr. Lewis and so many others in the civil rights movement. If only the vote had made the civil rights strugle an episode in history and not the ongoing struggle that it is.

But it can be stated with certainty that Mr. Lewis’s tweet won’t make the difference in any election. It’s impossible to identify any one voter that may be convinced to go to the polls by that tweet. And if you could find that person, the chance that he or she might change the outcome in any election would be infinitesimal.

Is near-thirty-year office holder Mr. Lewis some kind of time-wasting fool for sending this tweet? Of course not.

John Lewis and the Democrats, just like his counterparts in the Republican party, are working to solve a collective action problem. Each individual acting solely on his or her own behalf would waste time and energy by voting, but acting in concert they move elections and public policy in the directions they prefer.

I’m more convinced than I was before we debated the topic this week that libertarians should adopt the same tactics to work toward their ends. A single vote does have an infinitesimally small chance of swaying any particular election, but the chances get better as you go down the ballot and with years of being a voter. Votes also signal a wide variety of political actors about the desires of the populus. Elected officials, their staffs, political parties, journalists, opinion leaders, future candidates, and donors all incorporate vote information—not just wins and losses, but margins of victory—into their many judgments and actions beyond election day.

Being a voter also positions you to talk to non-libertarians as a brother or sister in a joint enterprise—making our country a better place—which opens them to your ideas. Being a non-voter communicates indifference to people who are voters. If you explain your philosophical reasons for not voting, you’d better have a lot of their time and be really, really good at it, because you’re most likely to just come off a prig.

Professional politics includes efforts to suppress the vote of the other side. I’m not talking about anything illegal, but the artful and subtle ways that the major parties work to dispirit their opposition’s voters. We libertarians are so smart that we have people within our own ranks who drive down the libertarian vote by arguing that it’s irrational. I like those folks—can’t think of single anti-vote libertarian who I don’t—but they would serve our cause well by holding their tongues on the voting question and being smarter than us voters in the privacy of their basements.

As for me, I’m a libertarian and I vote.

Has the United States reached peak incoherence in foreign policy?

President Obama spent seven years expanding the war on terror and intervening inconsistently and incoherently in the Middle East, only to acknowledge in recent interviews that Libya was his greatest mistake. The frontrunners in the presidential campaign are no better. Hillary Clinton supported the Iraq War before she later opposed it, and promoted the TTP and TTIP while Secretary of State but now says they’re a bad idea. Donald Trump’s foreign policy views have doubled back on themselves so often it’s hard to tell where he stands.

Observers on both the right and the left agree that the United States has lost its vision of how to succeed in the international arena. This makes it impossible to craft sound strategy or to build any sort of public consensus around it. What the United States needs is a new paradigm to help cut through the many conundrums that currently have the United States flummoxed. This new vision must clarify the primary goals of American foreign policy and identify the appropriate means for achieving those goals.

Crafting consensus around such a vision will be challenging, however, and in the meantime we need strategies to save us from our worst tendencies towards threat inflation, overspending, and excessive military intervention around the world.

Today I would like to propose a mechanism for doing just that. I call it the Switzerland Test. Applying the test is simple. When assessing threats, making decisions about defense budgets, or thinking about whether to intervene in another civil war, our political leaders should just ask: What would Switzerland do?

Switzerland provides a compelling vision for American foreign policy for several reasons. First, the Swiss assess security threats rationally. The Swiss are lucky, surrounded by mountains as they are, which has allowed them to fend off would-be invaders and occupiers for most of their history. Even Hitler didn’t bother. And today, the Swiss share borders with friendly neighbors. As a result, the Swiss waste little time or money on unnecessary national security initiatives. The most heated security debate in Switzerland recently has been whether or not even to have an army.

The United States will surely keep its army, but notice the parallels here. The United States, like Switzerland, is surrounded by imposing natural obstacles and friendly, militarily weak allies. Beyond this the United States also enjoys the safety of a secure nuclear deterrent. Unlike Switzerland, unfortunately, the United States sees threats everywhere and thus the legacy military-industrial complex from the Cold War continues to rumble along, sucking up trillions of dollars that the private sector economy could put to far better use.

Second, Swiss foreign policy is mostly geared toward improving its economic well being by expanding international trade through the development of cooperative agreements. And because it is so tiny, Switzerland has had to become competitive economically through investments in its people, its educational infrastructure, and its physical infrastructure.

The United States could learn a lot from this effort as well. Rather than focus on military power, which costs a lot but does little to advance the nation’s economic interests, the United States should focus on improving its economic power. Rather than flirt with protectionism like Clinton and Trump have done throughout the campaign, the United States should embrace the cause of free trade much more fully.

Third, Switzerland accepts the world as it is and does not seek to change it or to control it, only to make money by working with it. Unlike the United States, Switzerland does not seek to control the behavior of other nations, to resolve other nations’ internal conflicts through force, or to reshape the world to make it safe for democracy.

To be sure, as a tiny country with zero ability to project military power, Switzerland has little choice in this regard. But the benefits to Switzerland are many. In the United States pundits decry the turmoil in the Middle East and worry about which group of moderate rebels to support in Syria, Yemen, Libya, or Iraq. Does anyone think Switzerland won’t end up making money by trading with whichever government winds up emerging? There is simply no reason for the United States to struggle so hard against what is. Instead, like Switzerland the United States should accept the world as it is and work to get rich and happy by working with the world.

Finally, Switzerland ensures that it will not wind up doing stupid things by staying neutral and maintaining its strategic independence. Rather than entangling themselves in the EU or in NATO, the Swiss stay neutral in most things but remain willing to cooperate to solve problems on a situational basis.

The United States would benefit from the Swiss example here as well. Though the threat of Soviet attack justified American participation in NATO during the Cold War, today there is no reason for the United States to hitch its wagon to Europe’s security. Today, neither Russia nor the Islamic State poses the sort of military threat that requires American assistance. Likewise, though China certainly scares its neighbors in the Pacific, but many of them can take care of themselves and none of them are worth the United States risking major military conflict with China. The United States has more to gain by trading with China than confronting China.

The Switzerland Test is simple, clear, and easy to apply. The primary goals of U.S. foreign policy are national security and prosperity. Since the security angle is almost entirely taken care of by geography and nuclear weapons, most U.S. foreign policy should be focused on expanding America’s economic connections with the rest of the world and enabling those efforts with the appropriate investments in education and infrastructure.

When confronting a foreign policy question, the United States just needs to ask: What would Switzerland do?

Two experiments in a new working paper find some evidence that some drivers using popular ride-hailing platforms discriminate against riders. In some cases African-American riders faced longer wait times or higher probabilities of having a driver cancel on them. To some extent, these findings should temper hopes that these new technologies and platforms would succeed in quickly rooting out these forms of discrimination. It is important to note, however, that this study examined whether there was discrimination within these platforms, it did not compare ride-hailing platforms and traditional taxi companies. These new platforms do offer some advantages over the status quo when it comes to identifying the channels of discrimination through richer data, while the rating system gives riders some recourse to penalize discriminating drivers and an incentive for drivers to maintain a high rating.

In the study the researchers undertook two large-scale experiments to try to determine whether there was a pattern of discrimination for riders using these ride-hailing platforms.

In the Seattle experiment research assistants of different racial backgrounds requested rides along pre-determined, randomized routes. They logged speed of service, directness of the route, and the passenger ratings received. For each of the services analyzed (UberX, Lyft, and the traditional taxi-hailing app Flywheel), African-American riders had longer acceptance times than white riders. In UberX, they also waited about 30 percent longer to be picked up, while there were no significant differences in the other two.

In Boston, research assistants varied the names they used to request rides, with one more “white sounding” and the other a “distinctively black name.” Here wait times and acceptance times did not differed significantly, in one platform the rate of trip cancellations did: in UberX the rate of cancellation for hailers using African American-sounding names was 10.1 percent, compared to 4.9 percent for the white-sounding names, while there were not signs of racial discrimination in Lyft (and women using the African-American names actually had a lower cancellation rate).

Some of this variation in discrimination might be due to differences in the way platforms provide rider information to the drivers. Lyft drivers see the passenger name and photo (if the passenger has chosen to upload one into their profile) before accepting a ride request, in UberX the drivers only get a name after accepting, and in Flywheel there are no passenger photos in traveler profiles at all. The authors suggest that platforms could alter the timing and content of the rider information provided to reduce the possible channels for discrimination.

Again,  this study examines whether there are signs of discrimination within these ride-hailing platforms, that is, differences in wait times, routes, and acceptance rates by gender or race. As the authors are careful to point out, they “do not claim that [transportation network companies] are “worse” than the status quo.”

The authors do provide one brief illustration of the discrimination present in traditional taxis, and find that there is also a substantial different in acceptance rates for traditional taxis when research assistants of different racial background tried to hail a cab.  The first taxi stopped roughly 60 percent of the time for a white hailer, compared to less than 20 percent of the time for an African-American rider. White riders never had more than four taxis pass before one stopped, while African-Americans saw six or seven taxis pass by in 20 percent of the time. So there is unfortunately a substantial amount of discrimination in the traditional taxi industry, but it is has been opaque and harder to measure or understand.  Also, riders who are discriminated against in those instances have fewer options to choose a different platform, give the offending drivers negative feedback, or provide information to the taxi company to make the extent of the discrimination clear.  

Number of Traditional Taxis Passing Waiting Travelers, by Race

Source: Ge et al. (2016).

While these ride-hailing platforms may offer many improvements over traditional taxis when it comes to convenience and cost, this new paper shows that some individual drivers discriminate against riders on the basis of their race or gender. It’s not clear how this level of discrimination compares to traditional taxis, and the study shows that there is a significant amount in the old framework as well. These new platforms make it easier for riders and companies to identify which drivers are doing this, and they give riders more recourse to penalize offending drivers and more options to choose from that might be better on these measures.

Armed with this new information and a fuller understanding of how this driver discrimination is taking place, platforms can experiment with changes to the timing and content of the rider information they provide to drivers to try and address these issues. Ride-hailing platforms have not yet solved the difficult problem of discrimination in that sphere, but they might still make significant progress in reducing it, and they can do it without the need for heavy-handed new government intervention.

The Guardian reports on calls by German chancellor Angela Merkel for internet platforms to “divulge the secrets of their algorithms”:

Angela Merkel has called on major internet platforms to divulge the secrets of their algorithms, arguing that their lack of transparency endangers debating culture.

The German chancellor said internet users had a right to know how and on what basis the information they received via search engines was channelled to them.

Speaking to a media conference in Munich, Merkel said: “I’m of the opinion that algorithms must be made more transparent, so that one can inform oneself as an interested citizen about questions like ‘what influences my behaviour on the internet and that of others?’.

“Algorithms, when they are not transparent, can lead to a distortion of our perception, they can shrink our expanse of information.”

An algorithm is the formula used by a search engine to steer a request for information. They are different for every search engine, highly secret and determine the significance or ranking of a web page.

Merkel has joined a growing number of critics who have highlighted the dangers of receiving information that confirms an existing opinion or is recommended by people with similar ideas.

“This is a development that we need to pay careful attention to,” she told the conference, adding that a healthy democracy was dependent on people being confronted by opposing ideas.

“The big internet platforms, through their algorithms, have become an eye of a needle which diverse media must pass through [to access their users],” she said.

My sense is that some Europeans are frustrated at how American companies dominate many aspects of the Internet. However, instead of trying to compete with the American companies in the marketplace (which would be a welcome development, as more competition is good), they have decided that regulating these companies (e.g., through antitrust scrutiny) is their best strategy for reducing American dominance.

Here, the demand to divulge algorithms strikes me as very odd. Would Chancellor Merkel ask newspapers such as Der Spiegel to divulge the decision-making process for how they decide to present information to their readers? Of course not. That would be absurd. Similarly absurd is telling Google and Facebook to divulge their algorithms for presenting information.

Now, these companies might have their own incentives to be transparent about their decision-making, in response to market forces. But there’s no need for governments to get involved with any of this, and Chancellor Merkel’s efforts may be mostly based on anti-Americanism and frustration with losing in the competition for Internet dominance.

They’ll be watching you: King County (Seattle) uses grocery loyalty card data to figure out who owns pets, according to a new report from local station KOMO. It then sends them letters warning of a $250 fine if they do not license the animals. The “county said they pay the company who pays stores such as Safeway …for access to customer data contained in every one of those reward card swipes.” And “the mailers work. Just last year they brought in more than $100,000 in new pet licenses.”

But remember, government needs access to Big Data to fight terrorism.

In 2008, Georgia’s General Assembly enacted the Qualified Educational Tax Credit Program in an effort to expand educational opportunities for schoolchildren and provide alternatives for parents concerned about underperforming public schools. Under the program, individual and corporate donors can receive a credit against their state income tax liability in exchange for contributions to qualified, nonprofit Student Scholarship Organizations that aid Georgia families in paying tuition at qualified private schools of their choice.

Unfortunately, opponents of school choice are once again trying to restrict parents’ ability to select the best education for their children. Because many of the scholarship students use them to attend religiously affiliated schools, the plaintiffs in this case argue that the tax-credit program entangles government in religion. Specifically, they claim that the program violates the Georgia constitution’s No-Aid Clause—one of the historically anti-Catholic Blaine Amendments—which forbids the taking of money “from the public treasury, directly or indirectly, in aid of any church, sect, cult, or religious denomination or of any sectarian institution.” They also allege a violation of the Gratuities Clause, which says that “the General Assembly shall not have the power to grant any donation or gratuity or to forgive any debt or obligation owing to the public.” Several families who have benefitted from the program, represented by the Institute for Justice, have intervened to defend the law.

The trial court held that plaintiffs lacked standing to challenge the tax-credit program. It further ruled that, even if they had standing, plaintiffs’ constitutional arguments failed because tax credits are not government funds. Violations of the No-Aid Clause require that public funds be spent in aid of a sectarian institution, and the Gratuities Clause could not have been violated because “the General Assembly cannot donate or give what it does not own.” Plaintiffs appealed and Cato has now filed an amicus brief, in collaboration with Neal McCluskey and Jason Bedrick of our Center for Educational Freedom, before the Georgia Supreme Court.

We urge the court to affirm the determination that the tax-credit program does not violate the state constitution, focusing on the fact that it does not involve spending public funds for any sectarian purpose. Because the program makes no expenditures from the public fisc, it cannot violate the No-Aid Clause. Taxpayers choose to donate voluntarily using their own private funds and receive a tax credit for the amount of the donation; no money ever enters or leaves the treasury.

The challengers attempt to get around this fact by claiming that the credits constitute an indirect public expenditure, but this argument relies on a budgetary theory known as “tax expenditure analysis” that finds no support as a legitimate means of constitutional interpretation under Georgia (or federal, or any other state) law. Indeed, the U.S. Supreme Court rejected this type of reasoning in Arizona Christian School Tuition Organization v. Winn (2011).

The argument that the program constitutes an unconstitutional gratuity is likewise incorrect because the tax credits are not public funds, and the government cannot give away that which it does not own. Even if Georgia were giving up something of value, it would not be a “gratuity” because the state receives a substantial benefit in return: increased educational attainment, plus the secondary effects that increased competition and a more educated citizenry create.

The Georgia Supreme Court should affirm the lower court’s decision and uphold the state’s Qualified Educational Tax Credit Program—ensuring educational choice for Georgia families, regardless of how much money they make.

This week and last, the Cato Institute filed amicus briefs urging the Supreme Court to take up two cases dealing with the constitutional status of “cell site location information,” or “CSLI.” This data, collected of necessity by cellular communications providers, creates detailed records of their customers’ movements. The briefs invite the Court to accept these cases so it can revise Fourth Amendment practice to eschew doctrine and more closely adhere to the language of the Fourth Amendment.

The Fourth Amendment states that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Presumably, when called upon to determine whether a Fourth Amendment violation has occurred, courts would analyze the elements of this language as follows: Was there a search? Was there a seizure? Was any such search or seizure of “their persons, houses, papers, [or] effects”? Was any such search or seizure reasonable?

And in cases involving familiar physical objects, courts usually do a sound textual analysis, at least implicitly. But in harder cases dealing with unfamiliar items such as communications and data, courts retreat to “reasonable expectation of privacy” doctrine that emerged from Katz v. United States in 1967, and offshoots of it like the “third-party doctrine.” The “reasonable expectation of privacy” test asks whether defendants’ feelings about things government agents accessed were reasonable. The corollary “third-party doctrine” cancels Fourth Amendment interests in information and things that are shared on the theory that expectations of privacy evaporate in that context.

The “reasonable expectation of privacy” test is the product of one non-essential concurrence in Katz, and the third-party doctrine was wrong when the Supreme Court created it in 1976 to ratify a law that deputized banks into financial surveillance. That doctrine grows further out of synch with each step forward our society takes in modern, connected living. Today, third-party service providers collect incredibly deep reservoirs of information about us: Cellular telephone networks, Internet service providers, search engines, and payment systems have data that can throw open windows onto our relationships, feelings, health conditions, business dealings, sexuality, emotions, and more.

In United States v. Carpenter, the U.S. Court of Appeals for the Sixth Circuit turned aside the appeal of two men convicted of armed robbery, whose CSLI had been used as evidence against them. Relying most heavily on an application of the “reasonable expectation of privacy” test in Smith v. Maryland, the court said that, while the contents of communications are protected by the Fourth Amendment, routing information is not. The court backhandedly dismissed the crucial question of whether the defendants had a property right in the data the government had seized, even though contracts and regulation both allocate property rights in data about communications use to consumers.

And in a similar case, Graham v. United States, the Fourth Circuit held that CSLI isn’t constitutionally protected because “an individual enjoys no Fourth Amendment protection ‘in information he voluntarily turns over to [a] third part[y]’” (quoting Smith v. Maryland).

Rather than relying on misshapen precedent as the appeals courts did, the Supreme Court should find that communications and data are items that can be seized and searched. Consistent with precedents both longstanding and recent, the Court should recognize that telecommunications customers can have property rights in such data, and that when the government seeks to seize and search such data, it generally requires a warrant. This will permit courts below to address seizures and searches of communications and data forthrightly, confidently assessing the reasonableness of government searches and seizures even when communications and data are involved.

The briefs join a merits brief filed this summer in United States v. Benbow, a CSLI case pending in the D.C. Circuit.

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