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Donald Trump’s election ushers in a new challenge for homeland security and counterterrorism both at home and abroad. Trump owns, has a stake in, or has lent his name to scores of properties all over the United States and the world. A terrorist could decide to target a Trump Tower in Stuttgart, a Trump hotel in South Korea, or a Trump golf resort in Dubai. A terrorist might even decide to target the famous carousel in Central Park, which Trump also owns. The attraction to the terrorist is obvious: Trump’s hotels, resorts, and condominiums are vulnerable “soft targets,” without any of the serious security measures surrounding American embassies or other government buildings. Even better, most of these targets have the president’s name on them in huge letters. Clearly the symbolic damage of such an attack would be immense.

What is not clear, however, is just how great a threat this exposure represents and how the United States should deal with it.

A quick look at the list of Trump’s properties reveals that several of them are located in countries with significant serious civil unrest and instability. Trump Tower in Istanbul, for example, probably seemed like a pretty safe bet five or ten years ago as Turkey was working towards membership of the European Union. But today, thanks to spillover from the Syrian civil war, the failed military coup, and the recent assassination of the Russian ambassador to Turkey, the neighborhood seems much less secure than it used to.

Trump properties in Muslim-majority nations may present the greatest risk of attack, given Trump’s hardline rhetoric towards the Islamic State and towards Muslims and Islam more generally. Trump Tower Manila, for example, sits within easy striking distance of Abu Sayyaf, a Philippine Islamist group that has pledged allegiance to the Islamic State and has a history of bombing attacks. Trump also owns high-visibility properties in Azerbaijan, the United Arab Emirates, and India, all of which house one or more jihadist groups. Even Trump Tower in Seoul might not be safe: ISIS has recently labeled South Korea an enemy of the caliphate, attempting to incite attacks on U.S. installations in South Korea. In all of these locales, Trump Towers might prove to be an irresistible target.

Trump’s properties clearly present a new kind of Achilles heel for the United States, but what exactly should be done about the potential threat? One position might be to argue that the United States should do nothing. After all, the United States government bears no legal responsibility for providing security at these private establishments. But practically speaking it seems obvious that a major terrorist attack on one of Trump’s towers would have political and security implications that go well beyond the legal question. Attacks on American embassies from Tehran to Benghazi, for example, have always provoked anger and support for retaliation among U.S. citizens. Aware of the symbolism of an attack on a Trump Tower, Americans would likely feel similarly, putting pressure on the U.S. government to respond.

Perhaps one of the most critical aspects to consider along these lines is the reaction of the president himself. How would Trump respond if Trump Tower in Istanbul went up in smoke, killing hundreds of people? From everything we have seen since he began his presidential campaign, it seems likely that Trump would take such an act extremely personally. And given his hawkish rhetoric about dealing with terrorism, it is possible that Trump would respond emotionally, using his executive authority to take extreme measures beyond those dictated by a cool calculation of costs and benefits. Unfortunately, not only might such a response be dangerous and counterproductive for the United States, it might also play right into the hands of terrorists seeking to provoke just such an overreaction.

A second possibility is for Trump to divest from his private holdings and to begin to take the necessary steps to rename his associated properties. This would have the benefit of dramatically reducing the symbolic value of the properties as targets while simultaneously reducing the potential emotional impact on Trump himself. An attack on a hotel that “used” to bear Trump’s name is less likely to offend his ego and to provoke him to an overreaction.

If Trump is unwilling to do this, then he must come up with an alternative plan to ensure that his privately-owned properties and those bearing his name do not expose him to potential blackmail or provocation once he becomes president. Unfortunately, Trump’s reluctance to divest from his businesses, or even to acknowledge the potential for conflicts of interest, strongly suggests that he will not come up with such a plan, or even admit that such a plan is necessary. If so, Trump will be choosing to leave the United States vulnerable on a new front in the battle against terrorism.

The laudable goal of increasing accountability in law enforcement could lead to increased surveillance. Perhaps nothing illustrates this danger better than the merger of body camera and facial recognition technology, something some body camera manufactures have already achieved. Strict policies on facial recognition being used on body camera data are not in place at any of the major police departments that either are or soon will be equipping officers with the cameras. This is especially concerning at a time when body cameras are very popular with the American public. But, with restrictions in place, it is possible to increase police accountability while protecting privacy.

The risks of using facial recognition technology with body cameras was recently outlined by Constitution Project privacy fellow Jake Laperruque at Cato’s recent surveillance conference. You can watch his presentation here.

Laperruque rightly points out some of the most concerning issues associated with facial recognition and body cameras. Police body cameras with facial recognition could be prone to misuse. While this technology could be used to identify violent suspects it’s worth considering that it may also be used to identify those who have outstanding warrants for petty crimes.

There is also the possibility of police using the fusion of body camera and facial recognition technology in order to track people. As Laperruque correctly highlights, mobile police with body cameras could allow for surveillance far more intrusive than the stationary CCTV cameras that are ubiquitous in many cities.

Some may argue that if you’ve done nothing wrong then you have nothing to hide. But, as Laperruque reminds us, even those taking part in First Amendment protected activities, such as taking part in a protest or attending a mosque, could be identified via body camera, thereby prompting some kind of chilling effect.

Pew found that a similar chilling effect affected some Americans who changed their online habits in the wake of the Edward Snowden revelations. One survey respondent said, “I don’t search some things that I might have before,” and another remarked, “I used to be more open to discussing my private life online with my select friends. Now I don’t know who might be listening.” It’s reasonable to think that similar sentiments will accompany the proliferation of facial recognition-equipped police body cameras on display at protests and religious gatherings.

These concerns shouldn’t prompt lawmakers to ban facial recognition software being used on body cameras. Good policies can allow for police to use facial recognition software during emergencies. As Laperruque points out, exigent circumstance exceptions to the Fourth Amendment already exist and can be applied to police using facial recognition technology to analyze body camera footage. 

Laperruque suggests limiting facial recognition to investigations into serious offenses and requiring judicial authorization before police use facial recognition to track or identify someone. This will prevent police officers from indiscriminately scouring body camera footage with facial recognition technology in order to build profiles of citizens engaged in legal activity. 

When considering body cameras we should keep in mind that they can be used as platforms for surveillance technologies. As criminal justice reformers continue to call for the deployment of police body cameras they should remember that body cameras without appropriate policies in place could be used as tools for surveillance rather than increased accountability. Fortunately, as Laperruque shows, policies can be implemented to mitigate this risk. 

Imagine that your company’s board chairman, against the wishes of the board of directors and in contravention of the corporate charter, hires an interim CEO. Despite that illegal action, the interim CEO disciplines you in some manner. Would that discipline be any more legitimate if, two years later, the board finally agrees to hire the CEO, who then retroactively approved his own previous actions?

This is what’s happened at the highest levels of government. When Congress created the Consumer Financial Protection Bureau as part of the larger Dodd-Frank financial reform, it specified that the director was to be appointed by the president “by and with the advice and consent of the Senate.” This placed what’s called an Appointments Clause limitation on the director’s position.

Nearly five years ago, President Obama named Richard Cordray the CFPB director—after Elizabeth Warren’s expected appointment met significant political resistance—during what the president erroneously believed was a Senate recess. (You’ll recall that the Supreme Court unanimously invalidated the National Labor Relations Board appointments Obama made at the same time.) Cordray was only confirmed as the director, in a larger compromise with the Senate, nearly two years later.

In the interim, the CFPB filed an enforcement action against Chance Gordon regarding his provision of mortgage-relief services, and Cordray later ratified it. Gordon challenged the enforcement action as emanating from an unconstitutional authority, but the lower courts ruled against him, finding that the post hoc ratification resolved any Appointments Clause deficiencies. Now Gordon has petitioned the Supreme Court for review.

Cato has filed an amicus brief in support of Gordon, urging the Court to take up the case. Congress created the CFPB with the advice-and-consent requirement for a reason: the agency has vast power with virtually no accountability mechanisms, such that the Appointments Clause provision is one of the few meaningful checks on its activities. Furthermore, Congress did not authorize the CFPB to bring enforcement actions without a duly appointed, Senate-confirmed director.

Advice and consent is “more than a matter of etiquette or protocol,” the Supreme Court held in Edmond v. United States (1997), it’s a structural safeguard intended to curb executive power. Also, when Dodd-Frank first gave the CFPB its sweeping authority to define unfair, deceptive, or abusive acts or practices, it specified that these enforcement powers could not be exercised before a director had been validly appointed. Cordray’s later ratification of his own actions can’t cure the original unconstitutional sin of an unsanctioned prosecution. Only Congress could authorize the CFPB’s use of its awesome powers without first having a fully confirmed boss in place—which Congress purposely did not do.

Allowing Cordray to ratify the agency’s otherwise illegal past conduct would prejudice Gordon’s rights, and those of many other similarly situated individuals and companies. The lower courts have effectively allowed the CFPB—an agency that already possesses massive enforcement powers—to circumvent the Appointments Clause (in violation of Article II) while, at the same time, seizing the ultimate authority over the legal effect of judicial orders (in violation of Article III).

As James Madison observed in Federalist 47, “The accumulation of all powers legislative, executive and judiciary in the same hands . . . may justly be pronounced the very definition of tyranny.” The Supreme Court should take up Gordon v. CFPB to prevent this sort of dangerous accumulation of power from happening in the future.

In January 2015, Randy Metcalf was involved in a bar-fight in Dubuque, Iowa, where he seriously hurt a man. Was he prosecuted for assault under state law? No. Because Metcalf allegedly shouted racial slurs during the fight, federal prosecutors indicted him for one count of violating the Hate Crimes Prevention Act of 2009 (HCPA): causing bodily injury “because of the actual or perceived race, color, religion, or national origin of any person.”

The HCPA was enacted under Section 2 of the Thirteenth Amendment, which authorizes Congress to enforce the Constitution’s ban on slavery—an authority the Supreme Court has extended to eliminating the “badges and incidents” of slavery. Before his trial—and ultimate conviction—Metcalf challenged the constitutionality of the HCPA, arguing that racially motivated violence does not fall within congressional authority.

The district court upheld the HCPA, however, deferring to Congress’s power to “rationally determine” what the badges and incidents of slavery are. Metcalf appealed his case to the U.S. Court of Appeals for the Eighth Circuit, where Cato has now filed an amicus brief that mirrors two previous ones we filed on the same issue in unrelated cases. We argue that the use of hate-crime laws to sweep intra-state criminal activity—here an allegedly racially motivated bar fight—into federal court has nothing to do with stamping out slavery, and therefore does not fall within Congress’s enumerated powers. 

Not only are federal hate-crime laws constitutionally unsound, but, as George Zimmerman’s trial highlighted, they invite people dissatisfied with a state-court outcome to demand that the government retry unpopular defendants. That implicates one of our most fundamental liberties: protection from being prosecuted twice for the same act. Indeed, this protection from being placed in “double jeopardy” is explicitly enshrined in the text of the Fifth Amendment: “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.”

In the 1920s, however, the Supreme Court recognized a “dual sovereignty” exception to the rule, permitting the federal government to prosecute defendants even after they had endured trial at the state level. This exception emanated from the Court’s narrow concern that weak state enforcement of prohibition laws would disrupt the federal government’s ability to bring bootleggers to justice. Once Prohibition ended, however, the dual-sovereignty exception did not. Not only did it survive, it has thrived in the face of the ever-expanding federalization of the criminal law—a body of law that has now grown so large the number of crimes it covers cannot be counted, exposing more and more people to federal criminal penalties for crimes traditionally reserved to the states to enforce through their police power.

The HCPA is a prominent example of the danger federal overcriminalization has wrought, and is indeed even more susceptible to abuse due to the highly emotional nature of the underlying offenses. Moreover, the HPCA’s coverage is so broad that almost any violent crime could be subject to double prosecution by the state and federal government—and indeed any rape could be seen as hating a particular sex.

In United States v. Metcalf, the Eighth Circuit should end this practice, find the HCPA unconstitutional, and let state authorities deal with the Randy Metcalfs of the world.

Donald Trump has said he wants to cancel President Obama’s Deferred Action for Childhood Arrivals (DACA) program and has implied he would do it on his first day in office. DACA allows young immigrants—known as Dreamers—who were brought to the U.S. illegally as children to live and work here temporarily

Trump recently softened his tone, saying he would try to “work something out” with Dreamers. But DACA probably won’t disappear overnight when Trump assumes office on January 20th in any case. Rather, it will slowly wind down as the immigrants’ temporary work permits expire. Here’s why and how that will happen.

How DACA operates

There are essentially three parts of DACA, which are detailed in a Department of Homeland Security (DHS) memorandum from Secretary Janet Napolitano. The first part is the deprioritization of removal of non-criminal unauthorized immigrants. Currently, the department relies on detailed priorities when deciding whether to remove a specific person. The DACA memo tells DHS agents to prevent Dreamers that they encounter “from being placed into removal proceedings or removed from the United States.”

The second part of DACA essentially formalizes that decision not remove them. DACA recipients apply for and are issued a Notice of Action I-797 form (below) stating that removal action against them has been “deferred” for two years. Their information is entered into a database, and if it is checked against immigration databases, they are shown as lawfully present in the United States during that time. More than 800,000 young immigrants have enrolled in DACA and received such a letter.

Figure 1: DACA Form I-797 Notice of Action

Source: Imgur

Finally, this receipt of deferred action authorizes the immigrants to request an employment authorization document (EAD) similar to the one below, which is also valid for two years. Under current law, any person in the United States—legally or illegally—can legally seek employment, but it is illegal for an employer to employ a noncitizen who is not authorized to work. Thus, an EAD is really about authorizing employers to make a hire, not about authorizing the DACA recipient to seek a job.*

What Trump can do about DACA

Trump could theoretically overturn the first part of DACA on day 1, authorizing agents to apprehend and remove DACA recipients. This is very unlikely. First of all, Congress has repeatedly enacted Homeland Security appropriations bills that instructed the president to “prioritize the identification and removal of aliens convicted of a crime by the severity of that crime.” Second, while it is possible that Trump could ignore this, he has stated that he will indeed continue to prioritize criminals (one Trump advisor has suggested that immigrants arrested for, but not yet convicted of, serious offenses would also be prioritized). Third, Trump’s vague promise to “work something out” implies at least some unwillingness to go out of his way to deport Dreamers. Fourth, Trump’s unrealistic vow to deport 2 million criminals makes it unlikely he will waste precious resources on low priority, non-criminal cases.

Trump could easily cancel the second part of DACA on day 1, telling U.S. Citizenship and Immigration Services to cease accepting applications for I-797 deferred action forms. These forms are technically valid for two years, but they clearly state that they were issued as part of DACA. Deleting DACA recipients from ICE databases that list them as “lawfully present” could be more time-consuming, but probably not technically impossible.

Figure 2: DACA-based Employment Authorization Document (EAD)

Source: WangLawOffice

Because employment authorization is dependent on a grant of deferred action, canceling part 2 of DACA would legally end part 3 as well. But in practice, the administration cannot prevent DACA recipients from working until their employment authorization document expires. As can be seen in the EAD above, nothing on the physical document indicates that it was issued under DACA, and employers are legally obligated to accept any facially valid, non-expired form of identification issued by the federal government. There is no electronic way to cancel an EAD, and discriminating against job applicants simply because they are using an EAD is illegal.*

The Obama administration has showed how difficult ending DACA quickly will be

President Obama actually tried to cancel certain DACA EADs in 2015. In 2014, two years after DACA was initially implemented, the Obama administration declared it would expand DACA to a broader group of immigrants and issue 3-year EADs. When several states sued to prevent implementation of that memo and the Deferred Action for Parents of Americans memo, a judge imposed an injunction against the expanded DACA in February 2015. The Obama administration initially misinterpreted his order and incorrectly continued to issue 3-year EADs as renewals to the initial group of DACA recipients.

The administration sent or resent 2,600 three-year EADs to DACA recipients after the judge’s order in February. Because the expiration date on the EAD prevented the administration from halting DACA recipients’ employment authorization electronically, U.S. Citizenship and Immigration Services (USCIS) had to individually recoup them. DHS sent out 2,600 letters and called each recipient to inform them that they would be replacing 3-year EADs with 2-year EADs. USCIS officials also apparently made visits to some recipients’ “listed address” to collect the 3-year EADs in person. DHS also said, “If you fail to return your card, USCIS will terminate your DACA and all employment authorizations effective July 31, 2015.” It is not clear how they planned to effectuate this termination.

Ultimately, USCIS failed to recover 22 cards, or failed to receive good cause for not receiving them. As a result, those 22 individuals were “terminated from DACA.” The agency says termination involved sending the following letter to DACA recipients:

Any DACA-based EAD you received (including your recently issued 2-year EAD) is now invalid. You must return all DACA-based EADs to USCIS immediately. Fraudulent use of your EADs could result in a referral to law enforcement. You are still required to return your invalid EADs to USCIS. As noted in your Notice of Intent to Terminate, USCIS may consider failure to return your invalid EADs a negative factor in weighing whether to grant any future requests for deferred action or any other discretionary requests.

However, this letter failed to provide a statute under which the DACA recipient could be prosecuted, and the immigration statute and two criminal statutes relating to misuse of documents or fraudulent use of documents do not appear to prohibit use of a genuine EAD issued legally to the person who is using it.* In any case, there would be no practical constraint on these DACA recipients seeking employment, since an employer that was unaware of the cancellation could continue to employ them lawfully.* Moreover, there is no indication that these 22 immigrants were in fact removed from the country.

In the end, even when offering to replace EAD cards, DHS needed to send agents to recipients’ homes, and 1 percent of recipients still failed to cooperate. It is easy to imagine how difficult it would be if there was no offer of a replacement. While the fact that home visits were made demonstrates that DHS does have the knowledge and ability to track down DACA recipients in certain cases, it is likely that as soon as any apprehensions were made, other DACA beneficiaries would move.

How DACA would naturally wind down

Even if it wanted to, the Trump administration would likely be dissuaded from ending DACA immediately by the practicalities of cancelling all 800,000 EADs alone. But it makes especially little sense to do this when a majority of the EADs will expire within a year of Trump assuming office in any case. The Obama administration has since 2014 made public quarterly breakdowns of when DACA recipients renewed their status or received their status for the first time. Figure 3 provides those figures with projections for the last three quarters, based on the typical rate of approvals for initial applications and the number of 2-year renewals during the same quarters two years prior.

Figure 3: Timeline of DACA Approvals—Initial and Renewals—April 2014 to March 2017

Source: USCIS Data Set: Form I-821D Deferred Action for Childhood Arrivals. July 2016 to March 2017 are projections based on the number of two-year renewals in those months in 2014 and 2015. January to March 2017 is projected based on the percentage of days of the current administration’s term.

This timeline of DACA approvals allows for the creation of a rough timeline of DACA EAD expirations, provided in figure 4. More than 85 percent of all DACA EADs are 2-year authorizations. Another 108,000 are 3-year authorizations that were issued in late 2014 and early 2015. Unfortunately, the 3-year EADs will expire for most receipients in December 2017 or January 2018—sooner than if they had been issued two-year renewals, which they could have renewed in December 2016 and early January 2017, allowing for an extra year of authorization. As a result, there will be a more constant stream of DACA expirations than there were DACA approvals.

Figure 4: Projected DACA Expirations by Quarter

Source: Author’s calculation based on USCIS DACA Approval Figures. See figure 3 explanation.

Approximately 314,000 DACA recipients will lose DACA EAD authorization in 2017—about 38 percent of all DACA applicants. Another roughly 467,000 will lose authorization in 2018—about 115,000 of those will happen in the first quarter of 2018, meaning that DACA will be half over by March 2018.

Figure 5: Projected DACA Expirations by Year

Source: Author’s calculation based on USCIS DACA Approval Figures.

A couple of uncertainties are present in this analysis. First, the administration allows DACA renewal applications up to 6 months in advance, and some DACA renewal approvals occurred before the initial 2-year period ended, meaning that the administration issues a determination before the new period begins in some cases. In other cases, the administration issued renewals after the 2-year period was over. Thus, it is possible that the periods of DACA authorization could continue somewhat beyond the 2-year mark of their approval (though the data is divided into 3-month chunks, so it cannot be far off). Second, for the same reason, it is possible that the current administration could issue pre-approved EADs before the end of its term. This would obviously require ramping up the already-high current pace of renewals.

Worst case and best case scenario for DACA recipients under President Trump

The worst case scenario for DACA recipients would be that the Trump administration stops accepting new DACA applications and eliminates any kind of priorities for removal, allowing agents to apprehend any unauthorized immigrant that they meet. The administration could further create panic in the immigrant community by targeting certain DACA recipients for arrest, using the address information that they provided as part of their application. At the same time, the Trump administration could potentially threaten to prosecute employers or the immigrants themselves if they use their EADs. This would create chaos for employers and workers, as no employer would know if the EAD they were reviewing was valid.

At the other extreme, the Trump administration could continue the current priorities for removal and allow current recipients of DACA to use their EADs until they expire, while not accepting new applications or renewals. This would be the least controversial and most practical decision that would also be consistent with Trump’s campaign promises.

*The contents of this article are intended to convey general information only and not to provide legal advice or opinions. No action should be taken in reliance on the information contained in this article. If the reader is in need of legal advice, they should contact a licensed attorney.

Think of college, and your mind may well conjure images of ivy creeping up the walls of stately, gray, Gothic stone buildings in which the deepest of learning occurs. Such buildings exist, of course, but reality is not so pleasantly simple: Those buildings cost big money to erect and maintain, money many colleges may not have. What’s more, students often demand that more fun stuff, rather than deep learning, occur inside them. Or so a new report suggests.

“College and university enrollments are, in aggregate, either stable or declining,” intones the report, titled “The State of Facilities in Higher Education: 2016 Benchmarks, Best Practices and Trends.” The paper is from Sightlines, an outfit that provides facilities data to academia. “In light of the building boom of recent years, many campuses now have more space to maintain and fewer students to fill it.”

Essentially, the report says that colleges have been on a big building binge, but enrollment has been stagnant or declining. The basic math is concerning: Greater capital costs, plus decreasing revenue, equals trouble.

Has the building boom been driven by an edifice complex — college presidents and faculty love new buildings all over campus that are imposing, cutting edge, or both — or an amenities arms race to bring in students?

It’s probably both, but the report puts the onus on a destructive race to attract increasingly scarce students who demand ever more luxury:

Several campuses, realizing the possibility of a decline in enrollment, used the new construction (especially for housing, dining, and recreation facilities) as a way of attracting additional students. The hope being that the development of new amenities and support services can make a campus more attractive to millennials. According to several campus administrators, today’s student body “expects” high-end dormitories, multiple dining options, and modern fitness and recreational facilities. But fulfilling those expectations comes at a cost.

The report says that for decades, college construction has focused more on creating non-academic than academic space, and about half of all college space today is for non-academic use.

It’s a classic arms race: Colleges frightened of losing tuition dollars feel constant pressure to spend on expensive facilities to compete for students, in the process greatly increasing the danger of becoming even more insecure financially, maybe hopelessly so.

But how can students demand all these pricey things that are often superfluous to learning?

The answer, largely, is that someone else is paying.

Students, like most people, would take nice things, all else equal. But most people are constrained by cost: They often can’t afford, or cannot justify, spending their hard-earned money on many lovely but expensive items or services. The vast majority of students, however, pay for college in part with someone else’s dough.

Much of that is in the form of direct taxpayer subsidies to public institutions, which enroll about 73 percent of all students, and in 2015 absorbed around $87 billion in state and local subsidies. Then there is federal student aid, including grants, loans, work study, and tax benefits, which totaled $158 billion in 2015.

Students can demand so much because, in large part, you and all your taxpaying friends are footing the bill.

College campuses are often covered in buildings that feel grand, almost mythical. But they are rooted in gritty reality: Someone’s got to pay for them, and that’s getting harder to do. Maybe the solution is to have those who demand the good life pay for it themselves.

[Cross-posted from the Washington Examiner’s Beltway Confidential blog]

Several senators have introduced bills this month to prevent the elimination of President Obama’s Deferred Action for Childhood Arrivals (DACA) program. DACA has granted work permits and lawful presence to more than 800,0000 young immigrants—known as Dreamers—who were brought to the U.S. as children. It would be an unquestionably positive thing for the United States if one of these bills becomes law, but DACA had a flaw that Congress can correct: it included only those young immigrants who are here illegally, excluding children of immigrants who came to the United States legally.

It may seem that these immigrants do not need help since they have a legal status, but unfortunately, under America’s dysfunctional immigration system, many thousands of young legal immigrants are forced to leave, even though they followed the rules. Because these new bills continue DACA as is, they fail to address this major problem.

Here is how many young legal immigrants end up in this situation. Immigrants often initially enter the United States on work visas, such as the H-1B visa. H-1B visas allow skilled foreign workers to work in the United States for up to six years. Their spouses and minor children can also enter with them on H-4 visas. If an employer sponsors them for a green card—or permanent residency—the H-1B worker with their spouse and minor children can remain in the United States beyond the six-year limit until a green card is available. Then, the worker, their spouse, and minor children can adjust to permanent residency.

This system would work fine in theory. But for various reasons—1) because far more H-1Bs and H-4s are issued than green cards, 2) because the U.S. discriminates against immigrants from populous countries under the “per-country limits,” and 3) because spouses and minor children are not counted against the H-1B limit, but are counted (erroneously) against the green card limit—long backlogs develop for immigrants from certain countries. As I’ve written before, no one even knows how long these legal immigrants will have to wait.

The children of H-1B workers suffer the most under this flawed system. Even though they are in a legal status, they are prohibited from working legally in the country that is their home. Worse still, even though they grew up in the United States, they become ineligible for their status once they reach the age of 21 as they are no longer a “minor” child of an H-1B. Simultaneously, they lose their eligibility for a green card under their parents’ green card category, even if they had been waiting in line for years

These two problems are known as “aging out.” Although no one is counting, they affect tens of thousands of legal immigrant children every year. Essentially, these legal immigrants are subject to deportation solely because they grew up, and America is losing talented, already assimilated workers.

DACA could have helped these young people because it provided work permits and lawful presence to immigrants under age 31 who came to the United States before age 16. Unfortunately, the Obama administration included a requirement that an immigrant is eligible under DACA only if they had no “lawful status on June 15, 2012” when the Obama administration created the program. In other words, unauthorized immigrants whose parents violated the law benefited, while those immigrants whose parents followed the law did not.

Here are five ways to address this problem.

  1. Grant status and work authorization to legal immigrant Dreamers who otherwise meet the criteria for DACA in any bill extending DACA (which is essentially what the 2013 Senate-passed reform bill did).
  2. Authorize spouses and children of H-1Bs for work authorization. Banning legal immigrants from working is counter to America’s economic interests.
  3. Prevent aging out of green card petitions (which the Senate bill also did).
  4. Allow children of H-1Bs who have extended beyond the six-year limit to extend their status along with their parents.
  5. Fix the three problems with the immigration system that lead to the green card backlog in the first place—too few green cards, limits on individual countries, and counting spouses and children against the green card limits.

DACA recipients are benefiting the United States, but the Obama administration’s decision to close it off from legal immigrants serves no purpose, and Congress has no reason to perpetuate its mistake. 

Donald Trump has tabbed Andy Puzder to lead the Department of Labor. Puzder is the CEO of CKE, the restaurant outfit (read: Hardee’s and Carl’s Jr.). CKE, thanks to Puzder saving it from the bankruptcy hammer, employs 75,000 workers (read: jobs). Puzder knows that “high” minimum wages, such as the $15 per hour one thrown around by progressives, is a job killer for low-skill workers.

During his nomination hearings, Andy Puzder will no doubt be grilled about his views on “high” minimum wages. His inquisitors will trot out glowing claims about the wonders of a $15 per hour minimum wage, as did President Obama in his 2014 State of the Union address. As the President put it: “It’s good for the economy; it’s good for America.” Not so fast.

The glowing claims about minimum wage laws don’t pass the most basic economic smell tests. Just look at the data from Europe. The following two charts tell the tale and should be tucked into Andy Puzder’s briefing portfolio.

There are six European Union (E.U.) countries in which no minimum wage is mandated (Austria, Cyprus, Denmark, Finland, Italy, and Sweden). If we compare the levels of unemployment in these countries with E.U. countries that impose a minimum wage, the results are clear. A minimum wage leads to higher levels of unemployment. In the 21 countries with a minimum wage, the average country has an unemployment rate of 11.8%. Whereas, the average unemployment rate in the seven countries without mandated minimum wages is about one third lower — at 7.9%.

This point is even more pronounced when we look at rates of unemployment among the E.U.’s youth — defined as those younger than 25 years of age.

In the twenty-two E.U. countries where there are minimum wage laws, 27.7% of the youth demographic — more than one in four young adults — was unemployed in 2012. This is considerably higher than the youth unemployment rate in the seven E.U. countries without minimum wage laws — 19.5% in 2012 — a gap that has only widened since the Lehman Brothers collapse in 2008.

So, minimum wage laws — while advertised under the banner of social justice — do not live up to the claims made by those who tout them. They do not lift low wage earners to a so-called “social minimum”. Indeed, minimum wage laws — imposed at the levels employed in Europe — push a considerable number of people into unemployment. And, unless those newly unemployed qualify for government assistance (read: welfare), they will sink below, or further below, the social minimum.

As Nobelist Milton Friedman correctly quipped, “A minimum wage law is, in reality, a law that makes it illegal for an employer to hire a person with limited skills.”

According to a New York Times report on President-Elect Donald Trump’s meeting with technology leaders last week, Mr. Trump asked the executives “to see if they could not apply data analysis technology to detect and help get rid of government waste.”

They can not. The existence of data that would permit them to do so will be dictated by the Trump administration’s approach to implementing the DATA Act.

The DATA Act requires the federal government to transform all spending information into open data. If the federal government follows through on publishing spending data in open formats—which is very much an open question—technology companies old and new will be able to work the kind of magic they have in other fields.

There is not an algorithm, of course, to separate wasteful spending from useful. These are value judgments made by humans. But while the data underlying these judgments is held by insiders, their preferences for lush spending will be satisfied. Average Americans seeing multiplicitous government programs and bloated government contracts perceive that as waste.

Nothing specific that I’m aware of suggests any Trump administration policy yet with respect to the DATA Act, but the selection of Rep. Mick Mulvaney (R-SC) to head the Office of Management and Budget may bode well. OMB has been a drag on government spending transparency, and Mulvaney is the type to do away with business as usual. The DATA Act would do for the whole government what he sought from National Credit Union Administration in recent legislation: line-by-line budget transparency.

When the time comes to formulate policy on spending transparency, ask not what technology leaders can do for you, Mr. Trump, but what the DATA Act can do for them.

Parents are more satisfied with their child’s learning environment when they choose it. Indeed, as economist Tyler Cowen put it recently, “the single most overwhelming (yet neglected) empirical fact” about educational choice programs is that “they improve parent satisfaction.” A slew of new reports add a number of hefty boulders to the mountain of evidence. 

As I explained in greater detail last week, bureaucrats tend to focus excessively on test scores but parents take a more holistic approach to evaluating the quality of an education provider. As Cowen notes, “parents may like the academic programs, teacher skills, school discipline, safety, student respect for teachers, moral values, class size, teacher-parent relations, parental involvement, and freedom to observe religious traditions, among other facets of school choice.” Parents know their children are more than scores.

Voters generally tend to reflect the views of parents more so than education technocrats. In a recent survey from Public School Options, only 14 percent of voters said they “consider state standardized test scores the critical factor in assessing a student’s overall success in school” and 78 percent said that schools “should never be closed primarily on the results of that particular school’s average” on the state’s standardized test. Moreover, 65 percent said they “believe an ongoing summary of each school’s status using a dashboard of multiple measurements would be more helpful to parents and policy makers” than a “system that provides a single letter grade for each school.” If we want an education system that considers the individual needs of each child rather than grading schools on a few narrow measures of performance for an imagined “typical” child, then we should entrust parents with holding education providers accountable for academic outcomes.

Education savings accounts (ESAs) are one way to accomplish that goal. With an ESA, parents can customize their child’s education, using it to pay for private school tuition as well as tutors, textbooks, online courses, educational therapy, and more. The ESAs are typically funded from a portion of the funds that the state would have spent on a child at his or her assigned district school, but they could also be funded through tax-credit eligible donations. In a 2013 survey, Arizona parents of students with special needs expressed unanimous satisfaction with the educational settings they chose for their children using the ESA funds. Moreover, the lowest-income families were the most likely to express dissatisfaction with their assigned district school (67 percent) and the most likely to say they were “very satisfied” with the education their child obtained through the ESA (89 percent).

Last week, Empower Mississippi released a similar survey of parents of students with special needs using Mississippi’s ESA. Participating students had an array of conditions, including autism, hearing or visual impairments, traumatic brain injuries, speech impairment, emotional disturbances, and more. The results mirrored those from Arizona. As shown in the two figures below, most participants were dissatisfied with their previous experience in their assigned district school (67 percent) but they overwhelmingly expressed satisfaction with the educational setting they chose using ESA funds (98 percent). 

Source: Empower Mississippi

These views may not reflect the views of all Mississippi parents, or even all parents of special needs children. Nevertheless, they show that the district schools are not serving a subset of the population and that those parents believe their children are much better served in settings that they choose.

That said, national survey data indicate that parents generally are happiest at chosen schools. In a recent survey, Education Next asked parents of children attending a variety of different types of schools about their levels of satisfaction with their school’s teacher quality, school discipline, expectations for student achievement, safety, instruction in character or values, location, racial and ethnic diversity, and the school building and facilities. Parents were significantly more likely to express satisfaction with schools that they chose than the district schools to which their child was assigned. Moreover, as shown in the figure below, parents were more satisfied with private schools, where they generally pay at least some tuition, than at public charter schools, which do not charge tuition.

Education Next also published parental satisfaction data that the U.S. Department of Education under “the most transparent administration in history“ had collected but never reported publicly. As Harvard Professor Paul Peterson explained in the Wall Street Journal:

As we were completing our analysis, we unearthed a U.S. Education Department survey from 2012 that posed similar questions to a nationally representative sample of parents, and we found that the Obama administration has never reported the charter-school results from this survey, although the raw data are publicly available for others to analyze.

Digging into this data, we discovered that this survey, too, reveals both private-school parents and charter parents to be more satisfied with their schools than parents with children assigned to public schools. They are also more satisfied with teachers, academic standards, discipline and “the way the school staff interacts with parents.”

Once again, the DOE survey found that parents are more satisfied when their children attend schools that they chose, particularly private schools. As shown in the figure below, low-income parents are significantly less satisfied their assigned school than wealthier parents, and they are also more satisfied when their children attend private schools than schools in any other sector. The same is true for parents of all ethnic backgrounds, whether they live in the city, the suburbs, or rural areas.


Parental satisfaction levels do not conclusively prove that students are receiving a better education at any given school, but neither do standardized test scores. As Tyler Cowen reminds us, “how the buyers like the product is the fundamental standard used by economists for judging public policy.” Parental satisfaction should not be the only metric that policymakers consider, but it should be chief among them. And on that metric, the evidence is clear and conclusive: parents prefer schools that they choose for their children.

Technocratic attempts to determine school quality using quantifiable and standardizable metrics like reading and math scores fail to capture a wide range of outcomes that we want from education. Moreover, when such narrow metrics are used to reward and punish schools, they can create perverse incentives that narrow curricular options and stifle innovation. By contrast, parents consider a wider variety of metrics, both quantifiable and non-quantifiable.

Policymakers should work to empower parents with a wider range of educational options through policies like education savings accounts, and education policy wonks should direct their efforts toward building institutions—like independent certifiers, expert reviewers, and platforms for student and parent reviews—that help parents make informed decisions. That is the surest way to foster innovation and improve the quality of education available to our nation’s children.

The so-called English Rule on legal fees, better termed the rest-of-the-world rule, requires the losing party in a lawsuit to compensate the prevailing party for some of the costs it has laid out having to prove that it was in the legal right. Over centuries around the globe the rule has shown itself consistent with the interests of justice (since it helps to make whole parties whose actions and legal claims were vindicated) and has generally improved incentives in litigation by discouraging speculative claims and defenses, narrowing issues, and promoting settlement.

The organized lawyers of one nation, however, have remained stubbornly resistant to loser-pays: those in the United States. There are, to be sure, some notable exceptions: Alaska has practiced a form of the rule since its days as a territory, and “offer of settlement” variants, invoked after litigants turn down an offer and then do less well at trial, have made some headway lately. Since legislators in several states, especially out West, have shown an interest in promoting the loser-pays principle, you’d think there would be faster progress. Yet such legislative declarations are often foiled when court systems interpret guidance language narrowly or unsympathetically so as to restrict fee shifts to a relatively few outrageous or abusive cases. 

That was the situation in Idaho until this fall. Since 1979 the Idaho Supreme Court had followed a rule directing courts to deny fee awards except in cases that were “brought, pursued or defended frivolously, unreasonably or without foundation.” Eight years later, in a 1987 enactment, the state’s legislature declared its intent that “winners in civil cases have ‘the right to be made whole for attorney’s fees and costs when justice so requires,” on the face of it a broader standard. A lot of good that did: for nearly 30 years, the high court in Boise refused to take the hint and stuck with its old standard.

Until now. On September 28, in the case of Hoffer v. Shappard, the Idaho Supreme Court announced that it would at last yield to “the clear intention of the legislature” and adopt, for cases pending as of next March 1, a more generous fee standard. It will recognize that “prevailing parties in civil litigation have the right to be made whole for attorney fees they have incurred ‘when justice so requires’ ” and will accord “broad authority to judges overseeing civil actions to award reasonable attorney fees.”

Critics, as well as dissenters in the 3-2 ruling, are predicting the worst. Their concerns are summed up in Betsy Russell’s report in the Spokane Spokesman-Review (which also generously quotes me). As I note, there are genuine risks ahead: experience suggests that courts in a fee-shift system must be on guard to check lawyers’ temptation to gold-plate fee requests, and the high court or legislature should step in to cabin discretion if lower court judges head off in such different directions that fee outcomes start to vary arbitrarily from one courtroom to the next. Loser-pays systems typically develop mechanisms to handle cases of split or partial victories, and Idaho should be prepared to do so as well.

Those important points aside, I’m rooting for the Court’s new approach to succeed, and hoping that Idaho legislators, trial judges, and lawyers will cooperate in coming months to help make that happen.


The fog of war, coupled with the output from multiple propaganda machines, makes it difficult to determine which side has the upper hand in any conflict. After the fall of Aleppo, it appears that President Bashar al-Assad’s forces are getting the upper hand. But are they?

The best objective way to determine the course of a conflict is to observe black market (read: free market) exchange rates, and to translate changes in those rates via purchasing power parity into implied inflation rates. We, at the Johns Hopkins-Cato Institute Troubled Currencies Project, have been doing that for Syria since 2013.

The two accompanying charts—one for the Syrian pound and another for Syria’s implied annual inflation rate—plot the course of the war. It is clear that Assad and his allies are getting the upper hand. With their recent victory in Aleppo, the black-market exchange rate has moved in Assad’s favor and, likewise, inflation has continued to fall.

The 2016 presidential election took its toll on friendships around the country, but particularly among Democratic women. Fascinating new research from the Public Religion Research Institute (PRRI) finds that Democratic women are three times as likely as Republicans to say they blocked, unfriended, or unfollowed a person on a social networking site because of what they posted about politics: 30% versus 9%.

Democratic men (14%) are little less than twice as likely as Republican men (8%) To say they ‘unfriended’ someone. Democratic women (30%) are three times as likely Republican women (10%) to say they’ve done the same. Among all Americans the number stands at 13%.

You can find the full report at PRRI here.

Last week, the National Highway Traffic Safety Commission (NHTSC) formally proposed to mandate that all new cars be equipped with “vehicle-to-vehicle” (V2V) communications, also known as connected-vehicle technology. This would allow vehicles stuck in traffic to let other vehicles know to take alternate routes. It would also allow the governments—or hackers—to take control of your car anytime they want.

The good news is that the Trump Administration will take office before NHTSC has a chance to put this rule into effect, and may be willing to kill it. The bad news is that this rule will feed the paranoia some people have over self-driving cars.

This article, for example, considers self-driving cars to be a part of the “war on the automobile” because they offer an “easy way to track the movements of individuals in society.” In fact, the writer of the article is confusing self-driving cars with connected vehicles. As I’ve previously noted, none of the at least 20 companies working on self-driving cars or software appear to be making V2V an integral part of their systems. This is mainly because they don’t trust the government to install or maintain the infrastructure needed to make it work but also because self-driving cars don’t need that technology.

There are good reasons to be paranoid about connected-vehicle mandates. First, they will give government the ability to control your car, and some governments in the United States have shown that they are willing to use that control to reduce your mobility. The state of Washington, for example, has mandated a 50 percent reduction in per capita driving by 2050. This is a state that has forbidden people to build homes on their own land if they live outside of an urban-growth boundary. If they can’t reduce per capita driving through moral suasion, it is not too much of a stretch to imagine that they will just turn peoples’ cars off after they have driven so many miles each month.

Second, if every car uses exactly the same vehicle-to-vehicle software, they will be incredibly vulnerable to hackers. Remember that hackers figured out how to remotely control a Jeep that Chrysler had wired to the cell phone network. Chrysler responded by recalling 1.4 million cars to install a firewall between the network and the car’s operating system. But now the government wants to mandate that all cars connect their operating systems to the cell phone or other wireless network, with no firewalls allowed.

While the risks of mandatory V2V systems are significant, the benefits are tiny. Marc Scribner of the Competitive Enterprise Institute notes that, “As NHTSA readily admits, hypothetical safety benefits of the mandate will be trivial for the next 15 years, at which point far superior automated vehicle technology may be deployed to consumers,” especially if manufacturers aren’t locked into technologies prescribed by the government.

People should not be paranoid about self-driving cars because none of the technologies required for self-driving cars would allow someone to remotely control your car. But people should be paranoid about V2V communications, especially those mandated by the government. Some auto makers are already offering various connected technologies with their cars, such as OnStar, which leaves it up to consumers whether they want to buy those kinds of systems and gives manufacturers incentives to keep their systems hack-proof. But government mandates for connected vehicles are both dangerous and pointless.

Although public opinion data shows stark partisan divides in evaluations of police performance, a Cato Institute/YouGov survey shows that Americans—regardless of partisanship—are worried for police safety.

Two-thirds (65%) of respondents say that police officers have “very dangerous” jobs, 30% say police jobs are “somewhat dangerous,” and only 5% say their jobs are not very dangerous. Concerns about police safety extend across partisan groups. Six in 10 Democrats and independents as well as 7 in 10 Republicans think police jobs are “very dangerous.” 


Although concern for police safety is bi-partisan, Republicans are far more worried than Democrats and independents that the police are being disrespected. More than three fourths (77%) of Republicans think that people show “too little respect” for the police these days. In contrast, only 45% of Democrats agree—a 32 point margin. Independents fall in between with 56% who believe people don’t show enough respect for the police. This pattern is not simply due to differences in partisan racial composition: white Republicans are 28 points more likely than white Democrats to worry the police are being disrespected (78% vs. 50%).[1]

Given these data, it’s less surprising that 82% of Republicans believe there is a war on police today. In contrast, 49% of Democrats agree—a 33-point margin.

Find the full public opinion report here.

These data suggest that when people talk about there being a “war on police,” for the most part, they aren’t talking about how dangerous the job is. Most Americans—Republican, Democrat, or otherwise—already believe that police have dangerous jobs. Instead, the “war on police” that Republicans are worried about is rhetorical—they believe police officers aren’t being adequately respected by the public.

There has been a temptation for police reformers to respond to claims that there is a “war on police” by providing facts and figures about how fatal occupational injuries are higher in other occupations like taxi driving, truck driving, or roofing, or how police fatalities have been on a downward trend for the past 35 years, with 2015 being one of the safest years for law enforcement. But this is not what the perceived “war on police” is all about. It’s about police not getting the respect Republicans think they deserve.

Why do Republicans care more than Democrats about people showing respect for the police? Social psychologists have found that individuals who have an above average desire for social order tend to believe that society will breakdown and devolve into chaos without strong authority figures to maintain order.[2] Consequently, these individuals tend to have greater respect for authority figures who they believe help maintain social stability. While nearly everyone cares about social stability and respecting authority to some degree, this is a more salient concern for conservatives.[3]

In fact, Republicans (42%) are nearly twice as likely as Democrats (25%) to score in the highest quartile of our Respect for Authority Index (RAI), which is based on answers to three questions that measure people’s general respect for authority without out asking about police.

“Law and order” conservatives who look to the police to prevent chaos may fear that criticizing them, or not showing them adequate deference, may undermine their legitimacy and authority—thereby fostering social disorder.[4]

Consequently, those interested in police reform may be more effective by making it clear they support the police and avoid responding to claims that there is a “war on police” by saying there is no physical war on police. Instead, acknowledge the real challenges police officers must face and demonstrate how reform will help police officers do their jobs more safety and effectively. Furthermore, show that police reform can strengthen police legitimacy by restoring public confidence in the police. This by extension will bolster the legitimacy of the law.

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

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


[1] Similarly, Hispanic Republicans are 27 points more likely than Hispanic Democrats to worry people aren’t showing enough respect to police (71% vs. 44%). However, black Republicans (35%) are about as likely as black Democrats (39%) to worry the police aren’t receiving adequate respect. This is a familiar pattern we’ve written about previously where black Republicans and black Democrats have similar views of the police even though white and Hispanic Republicans have more positive views than white and Hispanic Democrats. These data about perceptions of police being disrespected among black and Hispanic Republicans and Democrats come from combining the June 2016 and November 2015 national surveys (N=4000), which offer greater precision and smaller margins of error for subgroups. (Unweighted: Black Republicans=45, Hispanic Republicans=165, Black Democrats=630, Hispanic Democrats=409.) Results have been weighted to be representative of the national population.

[2] See Karen Stenner, The Authoritarian Dynamic (Cambridge: Cambridge University Press, 2005), Jonathan Haidt, Jesse Graham, and Craig Joseph, “Above and Below Left-Right: Ideological Narratives and Moral Foundations,” Psychological Inquiry 20 (2009): 110-119. Jonathan Haidt, The Righteous Mind: Why Good People Are Divided by Politics and Religion (New York: Pantheon Books, 2012). Jonathan Haidt and Jesse Graham, “When Morality Opposes Justice: Conservatives Have Moral Intuitions that Liberals May Not Recognize,” Social Justice Research 20 (2012): 98-116. Jesse Graham, Jonathan Haidt, and Brian A. Nosek, “Liberals and Conservatives Rely on Different Sets of Moral Foundations,” Journal of Personality and Social Psychology 98, No. 5 (2009): 1029-46.

[3] Ibid.

[4] For example, see Heather MacDonald, “The Danger of the “Black Lives Matter” Movement,” Imprimis 45 (2016), http://imprimis.hillsdale.edu/the-danger-of-the-black-lives-matter-movem….

When Simon Tam formed an all Asian-American rock band, he knew it needed a name that would capture the band’s identity and ethnic pride. He chose “The Slants” to, in his own words, “take on these stereotypes that people have about us, like the slanted eyes, and own them.” The Slants knew they might have some critics, but they weren’t expecting that one would be the U.S. Patent and Trademark Office (PTO), which punished them for their naming choice by denying their trademark application.

The PTO acted under a provision of the Lanham Act (the federal trademark statute) that bars the registration of any trademark “which may disparage … persons, living or dead, institutions, beliefs, or national symbols.” After a three-judge panel of the U.S. Court of Appeals for the Federal Circuit upheld this denial, the full court reheard the case and reversed, striking down the disparagement clause as violating the First Amendment. The case is now before the Supreme Court.

Cato, joined by a basket of deplorable people and organizations that includes satirist P.J. O’Rourke, former ACLU president Nadine Strossen, and Flying Dog Brewery (which makes the tasty “Raging Bitch” Belgian-style IPA), has filed a brief – our third annual “funny brief” – urging the Court to affirm the Federal Circuit. We ask a simple question: Should the government get to decide what’s a slur?

Do we really want PTO lawyers determining which messages are “disparaging” and which aren’t? For example, Cato’s brief was written by a cracker, a dago, and a frostback. Can we get away with saying that? It depends whom you ask. Is “water buffalo” a racial slur? What about “niggardly” or “tar baby”? Enormous controversies have raged over exactly these questions, yet the PTO thinks it can draw an objective line.

Even if we could determine which words are actually “disparaging,” should the government really be putting its thumb on the scale to take such controversies out of the public square? Insulting terms and disparaging language have played an important role in American history. Why should we discourage coining phrases like the “Know-Nothing Party” when, for many, they have captured a truth more than any “official” name ever could?

Moreover, the process of reclaiming slurs has been crucial to the development of many groups’ identities. Jesuits, Methodists, Mormons, and Quakers all owe their popular names to reclaimed terms that were originally disparaging. The Slants, just like N.W.A., Pansy Division, the Hillbilly Hellcats, and many bands before them, are engaging in exactly the same proud tradition. The disparagement clause places an economic penalty on brands that choose to express a certain message—the definition of an unconstitutional condition.

Could the government deny copyright protection to a book it doesn’t like? Could the police decline to protect a demonstration with which they disagree? Allowing the disparagement clause to stand would raise these and other troubling questions. Instead, the Court should draw a clear line, get rid of the disparagement clause, and let The Slants rock on!

The Supreme Court will hear argument in Lee v. Tam on January 18.

Economist Jeffrey Sachs of Columbia University recently made this claim (emphasis mine):

“We’re so rich in our total production and in our capacities to do things that we could solve absolutely fundamental challenges, such as ending extreme poverty or addressing climate change or preserving biodiversity without much effort … it cannot be the most important issue in the world whether the U.S. grows at another 3% or 3.5% or 2.9% a year, when over the last 65 years there’s been no discernible rise in wellbeing

That is the theme of his new book, The Origins of Happiness.

By “we” Sachs appears to mean the U.S. and other rich countries and calls for their governments to engage in wealth transfers to poor countries and a plethora of environmental projects. What he does not seem to realize is that humanity is already making swift progress—through the free actions of billions of individuals—toward ending poverty and better preserving the environment.

As global GDP per person has skyrocketed, global poverty has plummeted. Fewer people live in extreme poverty than ever before, both as a share of the population and in absolute terms. In other words, although there are more people alive, the number of people living in extreme poverty is lower than it has even been. If current trends continue, extreme poverty will be practically eliminated by 2030.

After China liberalized its economy, hundreds of millions of its people escaped extreme poverty. Once India moved towards economic freedom in the early 1990s, its population saw a remarkable decline in poverty as well. It’s tempting to want to make this story about “us” in the U.S. and other rich countries acting as saviors for the global poor, but the reality is that people in the developing world are lifting themselves out of poverty wherever they have the economic freedom to do so. In contrast, no country has ever become rich through foreign aid, which is plagued by many problems.

As incomes rise and people move past worries of basic survival, more of them come to care about the environment. Technological progress is also helping to improve environmental stewardship, by boosting agricultural yields per hectare of land and increasing water productivity, among other things. We are now witnessing numerous trends that give cause for environmental optimism, from expanding forest area in China to falling emissions in the United States.

Once again, Sachs’ well-meaning call for state intervention seems misguided. The U.S. emits less CO2 today not because of EPA regulations or costly subsidies for unreliable wind and solar energy, but because the market delivered a technological breakthrough (hydraulic fracturing) that reduced reliance on more polluting energy sources.

Despite Sachs’ protests, there has been a discernible rise in wellbeing over the last 65 years. Even the amount of progress achieved just in my own lifetime is astounding. Sachs’ book presents data suggesting that higher incomes and better education do not heighten people’s happiness as much as sound health and strong interpersonal relationships do. From this he concludes that despite being richer and better educated, people today are not any better off than their fore-bearers.

Actually, even in terms of health and interconnectedness, we are still better off today. Consider health. Life expectancy is at an all-time high. More infants survive to see their first birthday and more mothers survive childbirth. Cancer takes the lives of fewer men and women. We lose fewer lives to droughts, hurricanes, lightning, tornadoes and extreme temperatures. Safety advances also mean fewer traffic fatalities and fewer fatal plane crashes. Infectious diseases that were once common causes of death have been defeated by better treatment and prevention methods.

As for relationships, despite having more disposable income, today people work less and enjoy more leisure time to spend with loved ones. In 1950, an average American worker worked 1,983 hours in a year. In 2016, that had fallen to 1,774. That’s 209 fewer hours of labor—and 209 more hours to spend with family and friends.

Technology, although much maligned for providing distracting alternatives to social interaction, also makes it possible to remain in contact with others even across vast distances. Access to electricity, mobile phones and the Internet has never been more widespread, connecting more lives across the planet.

Technology not only makes it easier to maintain relationships, but to form them. Just last month I attended a wedding where the bride and groom had first met through a dating app on their smart phones. They were not unusual—online dating now brings about more than a third of U.S. marriages, and the rapid spread of communications technology has also facilitated the formation of many friendships.

To make his case Sachs also cites data showing that people don’t identify as happier today than a half-century ago. If true, that is perhaps evidence in favor of the “hedonic treadmill” theory of psychology, which claims that people quickly get used to improvements in their lives and take them for granted. A year after winning the lottery, for example, many people are no happier than they were previously. In a sense, just being alive right now means you’ve won the lottery—the average American today is richer in many ways than John D. Rockefeller a century ago.

Sachs is too quick to dismiss the incredible progress that humanity has made by practically every measure, and also too quick to assume that government intervention is the best way to bring about progress. You can find even more data showing how far humanity has come at HumanProgress.org.

The incoming Secretary of Energy, Rick Perry, has talked in the past about abolishing the department that he will be running. President-elect Donald Trump has expressed skepticism with some types of energy subsidies. However, Trump’s campaign website mentioned support for “continued research into advanced energy technologies.”

As they consider their energy policy approach, the Trump team should look at the past record of federal spending, which I discuss in a new study on energy subsidies at DG.org.

The government has been subsidizing conventional and renewable energy for decades. Department of Energy (DOE) spending has been fraught with failure. Billions of dollars have been wasted on ill-advised and mismanaged projects. The study includes nine case studies of DOE failure, from the Clinch River Breeder Reactor debacle in the 1970s to the recent Solyndra scandal.

There is no need for federal energy subsidies. U.S. energy markets have changed dramatically over the past decade. Technological advances in the oil and natural gas industries—particularly hydraulic fracturing and horizontal drilling—have led to large increases in domestic production. U.S. imports of oil and gas have plunged, while exports have increased. U.S. businesses and consumers have benefited as gasoline and natural gas prices have fallen.

This energy revolution was driven by private innovation and competitive markets, and it has created environmental as well as economic benefits. Cleaner natural gas, for example, is replacing coal as a fuel source in U.S. electricity production.

The oil and gas revolution shows that American businesses can generate innovations and progress with their own resources. Furthermore, investors and major corporations have pumped billions of dollars into alternative energy technologies in recent years. The U.S. energy sector is vast, dynamic, and entrepreneurial, and it does not need subsidies to thrive.

New York Times columnist David Leonhardt claims, “G.D.P. growth has been stronger after recent tax increases on the wealthy.”  To prove it he writes,  “The economy has performed better under Democratic Presidents during the last half century.”  

This might make sense if Eisenhower and Nixon had cut tax rates for the wealthy and JFK and LBJ raised them.  But the opposite happened.  It might also make sense if Clinton had raised the capital gains tax rate in 1997 rather than cutting it from 28% (under Reagan-Bush) to 20%. 

President Eisenhower put the highest tax rate up to 92% in 1953-54 and the lowest rate to 22%.  By contrast, President Kennedy’s 1963 plan for “getting America moving again” proposed to cut income tax rates to 14-65%.  As enacted by LBJ after Kennedy’s assassination, the top tax rate was reduced to 70% and the lowest to 15%.  These rate cuts came quickly, unlike Reagan’s – which were was unwisely postponed until 1983-84. 

Economic growth was indeed twice as fast (5.2%) under the Kennedy-Johnson’s top tax rate of 70% than it was under Eisenhower’s top tax rates of 91-92% (2.5%).  That may suggest “Kennedy Republicans” (like Jack Kemp) are wiser than pro-tax Eisenhower Democrats, as I put it in The Wall Street Journal (“Avoiding the Eisenhower Legacy” Nov 17, 1992). My 1992 analysis may have inspired a famous President Clinton outburst to his staff: “’I hope you’re all aware we’re all Eisenhower Republicans,’ …his voice dripping with sarcasm. ‘We’re all Eisenhower Republicans here…” 

President Carter did try to raise tax rates on the wealthy, mostly by raising the tax on capital gains to nearly 40% by 1977.  As with FDR in 1938, Democrats in Congress rebelled. On July 3, 1978, an alarmed Washington Post editorial said, “THE WILD POPULARITY of the Steiger amendment among the Democrats in Congress is a remarkable Phenomenon. The Steiger amendment, you will recall, cuts capital-gains taxes for a small number of citizens, most of whom roost comfortably on the top rung of the income ladder…  Mr. Carter says that he will veto the bill.”  But he didn’t. 

The capital gains tax was again slashed from 28% to 20% in August 5, 1997, with the support of President Clinton and over 80% of the Democrats in the House and Senate.

If higher tax rates on the wealthy produce stronger GDP growth, why was that not also true from 1932 to 1936?  Growth was certainly not stronger after June 6, 1932, when President Hoover raised the top tax rate from 25 percent to 63 percent, doubled the estate tax and raised corporate taxes. And growth was not stronger after the Revenue Act of  June 22, 1936, which briefly raised tax rates on capital gains and profits until a Democrat Congress (fearful of being blamed for the deep 1937-38 recession) repealed it.  

Those who misunderstand the nonpartisan history of tax policy successes and blunders are doomed to repeat the blunders.

Rep. Peter King (R-NY), fresh out of a meeting at Trump Tower yesterday, said he pressured President-elect Donald Trump to implement a nationwide surveillance program directed at Muslim Americans “similar to what” existed in the New York Police Department’s Demographics Unit under Commissioner Ray Kelly.

Rep. King insisted that the NYPD program “which unfortunately the civil liberties union and The New York Times didn’t like … [was] very effective in stopping terrorism and really should be a model for the country.”

There is little evidence that the program “stopped terrorism,” and Rep. King did not provide any revelations. The evidence we do have (much of it from agents themselves) points in the opposite direction. In more than a decade of pervasive surveillance, the program simply didn’t work.

I wrote about that NYPD program back in March, when Sen. Ted Cruz (R-TX) made a similar suggestion following a terrorist attack in Brussels.

 [T]he police infiltrated mosques, set up surveillance cameras around Muslim-owned businesses and residences, went undercover to monitor everyday conversations, and even infiltrated student groups at schools as far away as Yale and the University of Pennsylvania in order to monitor what students talked about, who they spoke to, and how often they prayed.

The end result of years of Demographic Unit surveillance on American Muslims was… nothing.

No convictions, no prosecutions, and, according to Assistant Chief Thomas Galati, not even a single legitimate lead.

Instead of policing murders and rapes in New York City, agents were busy with things like whitewater rafting trips to upstate New York, where an officer who infiltrated a Muslim student organization took detailed notes of how many times the students prayed and who they talked to.  

While the program failed to generate actionable intelligence about terrorists, it did produce millions of dollars worth of costly litigation over the dubious constitutionality of suspicionless spying against religious communities.

Aside from the inefficacy of the program, it remains unclear how Rep. King expects the president to implement such a program nationwide. Given manpower limitations on federal law enforcement, the most likely avenue for nationwide implementation would be the expansion of federal law enforcement grants, such as the Urban Areas Security Initiative, in order to entice state and local law enforcement agencies to construct surveillance efforts similar to the NYPD program.

UASI grants, which are ostensibly intended to keep Americans safe from terrorists, have been used by state and local police to procure military-grade vehicles, weapons and surveillance technology without going through their local appropriations processes.  Aside from outfitting local police forces like paramilitary units, there is little evidence that such grants have made Americans safer.  In December of 2012, then-Senator Tom Coburn (R-OK) released a damning report on the UASI program, arguing that billions of dollars in federal grants had not made American law enforcement any better at protecting against or reacting to terrorist attacks.

In the sense that terrorism grant programs have already wasted billions of tax dollars and police man-hours while distorting local law enforcement priorities, Rep. King’s surveillance program is a perfect fit. But if we want our federal, state, and local law enforcement agents spending their time policing actual crimes rather than counting how many times young Muslims pray while whitewater rafting, New York’s failed surveillance program should be left in the past.  The NYPD itself agrees.


For more on domestic surveillance in the War on Terror:

This week Cato hosted our annual Surveillance Conference.  My colleague Patrick Eddington moderated a panel on “countering violent extremism,” which is a government program designed to give officials advanced warning of the alleged radicalization process of young Muslims.  The panel included remarks from Maya Berry of the Arab American Institute, Sharia Mayfield of the Oregon Department of Justice (whose father Brandon was falsely accused by the FBI of taking part in the Madrid train bombings), Arjun Singh Sethi of the Sikh Coalition, Mike German of the Brennan Center for Justice’s Liberty and National Security Program, and Luther Reynolds of the Montgomery Co. Police Department.