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This Thursday, the Cato Institute will release the 14th edition of the Cato Supreme Court Review, covering the Court’s October 2014 and 2015 terms. The lead article, “King v. Burwell and the Triumph of Selective Contextualism,” is by Jonathan Adler and yours truly. Here’s the abstract:

King v. Burwell presented the question of whether the Patient Protection and Affordable Care Act of 2010 (ACA) authorizes the Internal Revenue Service (IRS) to issue tax credits for the purchase of health insurance through Exchanges established by the federal government. The King plaintiffs alleged an IRS rule purporting to authorize tax credits in federal Exchanges was unlawful because the text of the ACA expressly authorizes tax credits only in Exchanges “established by the State.” The Supreme Court conceded the plain meaning of the operative text, and that Congress defined “State” to exclude the federal government. The Court nevertheless disagreed with the plaintiffs, explaining that “the context and structure of the Act compel us to depart from what would otherwise be the most natural reading of the pertinent statutory phrase.” The Court reached its conclusion by disregarding portions of the ACA’s text and considering only selected elements of the ACA’s structure, context, and purpose. The King majority’s selective contextualism embraced an unexpressed congressional “plan” at the expense of the plan Congress actually enacted.

Our article—which is available now at SSRN—quotes Darth Vader more often than any previous Cato Supreme Court Review article. (Probably.)

I Am Altering The Deal

Adler and I will also discuss the King ruling on a panel at Cato’s 14th Annual Constitution Day Conference this Thursday, September 17, from 10:45am-12pm. Click here to register.

The United States ranks 16th in the new Economic Freedom of the World index co-published in the United States by the Cato Institute and the Fraser Institute. The report has been tracking the decline of the country since 2000, when it still retained its decades-long place among the top three countries on the index. The U.S. decline in the five major areas the report measures—size of government; legal system and property rights; sound money; freedom of trade; and regulation—amounts to an overall decline that is greater than three times the average fall in economic freedom of the mostly rich OECD countries. Based on academic research, the authors once again warn that the large drop in economic freedom could cut U.S. long-term growth (3%) by half.

Other countries in the index rank as follows: Hong Kong (1); Singapore (2); New Zealand (4); Switzerland (4); Mauritius (6); Canada (9); United Kingdom (10) tied with Chile (10); Germany (29); South Korea (39); Spain (49); Greece (85); Russia (99); Vietnam (109); China (111); India (114); Egypt (118); Iran (147); Venezuela (157).

The report finds a strong relationship between economic freedom and a range of human development indicators. Economic freedom is unambiguously good for the poor, for example. According to the authors, “the average income of the poorest 10% in the most economically free nations [by quartile] is about 50% greater than the overall average income in the least free nations.”

This years’ report includes a chapter on the relationship between economic freedom and perceptions of life control and life satisfaction. The authors of that chapter (Hans Pitlik, Dulce Redin and Martin Rode) note that past research has found that the more people feel they are in control of their lives, the more satisfied they are with their lives. Furthermore, past research has found that more economic freedom improves life satisfaction over and above its impact on greater per capita income (increases in income improve life satisfaction). The authors now find that economic freedom plays an important role in giving people a feeling of control over their own lives and thus plays a significant role in determining peoples’ levels of happiness.

See those and other findings on the role of economic freedom in our lives here.

Few Republican candidates these days are talking about George W. Bush and Dick Cheney. Indeed, they’ve been avoiding the last Republican administration since 2006. Even Jeb(!) Bush dances around the topic of his unpopular brother.

But this weekend I got an email from “Dick Cheney” – actually a fundraising appeal for the Republican National Committee, sent from its GOP.com. The email promises that if I give the RNC at least $59.99, I’ll get a copy of Cheney’s new book, which “describes the kind of leader we desperately need in the White House.”

The RNC must be sending this appeal widely. I’m not on their general email list. I get lots of unsolicited emails from both Republican and Democratic candidates, but I can’t recall one from GOP.com. So they seem to have acquired a lot of outside lists for their Dick Cheney pitch.

Cheney’s book has garnered widespread criticism, from Carlos Lozada at the Washington Post and Steve Chapman at Reason, for instance. According to Lozada, Cheney and daughter Liz call for

a massive military buildup, including new missile-defense systems, more nuclear weapons and a force prepared to wage war in multiple geographic locations simultaneously… the restoration of National Security Agency’s surveillance authorities, the return of “enhanced” interrogation of terrorism suspects, the deployment of thousands of military “advisors” to battle the Islamic State and a halt to the U.S. withdrawal from Afghanistan… aggressive actions against rival nations, such as sending troops to NATO countries that border Russia, in order to “signal American determination.”

No wonder Republican candidates are not holding public events with Cheney. That’s not a platform candidates would want to ask the voters to endorse. But now the Republican National Committee – which calls itself in the email “the Official Committee in Charge of Taking Back the White House” – is wrapping itself in the arms of Dick Cheney and dangerously interventionist agenda. I wonder if any presidential candidates were consulted on this tactic.

I’m a big fan of fiscal data.

In part this is because I’m a policy wonk, but I also like budget numbers because they generally provide strong evidence for my philosophical belief in small government and spending restraint.

For instance, I enjoy sharing my table showing nations that have experienced great success with multi-year limits on spending growth, particularly since I enjoy putting my leftist friends in an uncomfortable position by asking them for a similar list of countries that have made progress by raising taxes (hint: that’s called the null set).

Given my affinity for budget data, I was excited to learn that the Joint Economic Committee (JEC) just released “An Economic History of Federal Spending and Debt.”

This new publication is filled with fiscal information starting in the late 1700s.

To give you an indication, check out this chart which, in one fell swoop, provides more than 200 years of data on spending, revenue, and debt, along with information on major wars and economic dislocations.

Since that’s an intimidating amount of information, I thought it might be a good idea to break out the most important set of numbers in that chart.

But I warn you that I’m not about to share good news. This chart shows how peacetime federal spending dramatically expanded during the 20th century.

Since I’ve already decided that data on dependency in Denmark was the most depressing powerpoint slide in the world, I guess we’ll call this the most tragic chart in the world.

Especially since it symbolizes a very unfortunate change in the attitude about the proper role of the federal government.

A progressive philosophical shift in federal spending began under President Woodrow Wilson. …George Will—writing on Wilson’s underlying philosophy—succinctly contrasted Wilson with James Madison by noting, “Wilsonian government, meaning (in Wilson’s words) government with ‘unstinted power,’ is hostile to Madison’s Constitution, which, Madison said, obliges government ‘to control itself.’”

And if you want to feel even sadder, check out the projections showing that America will become Greece in the absence of genuine entitlement reform.

Here’s a table from the JEC report that shows how bad attitudes, bad jurisprudence, and bad policy have led to a dramatic expansion in the burden of government spending. The most important column, which I’ve circled, shows that we used to have a very small federal government that consumed, on average, less than 3 percent of economic output. But now we have a Leviathan that diverts more than 20 percent of GDP to Washington programs.

The report isn’t just numbers. There’s also some very useful analysis.

For instance, it notes that FDR’s New Deal did not work (as I’ve repeatedly explained, though it also should have acknowledged that Hoover made the same mistakes).

On balance, empirical research provides little support for the contention that President Franklin D. Roosevelt’s Keynesian policies helped to pull the United States out of the Great Depression.

It also makes important points about the economic impact of government spending.

While more spending and a bigger federal government can mean more federal jobs, these jobs come at the expense of private sector resources, meaning fewer private sector jobs and lost economic opportunities. …there is an inverse relationship between federal spending and private payroll employment.

And it echoes arguments that I’ve made about the progress that was achieved during the Clinton years.

…though spending increased in real dollar terms during this period, as a percent of the economy, spending actually declined. In FY1995, non-interest mandatory spending equaled 9.75 percent of GDP and discretionary spending equaled 7.19 percent of GDP. In spite of the spending increases, by FY2001, mandatory spending amounted to only 9.56 percent of GDP and discretionary spending amounted to only 6.16 percent of GDP.

Perhaps most important, the study endorses Mitchell’s Golden Rule!

…a politically viable path to a balanced budget and fiscal stability: Restrain the growth in federal spending below the rate of economic growth, and a sustainable fiscal environment will follow.

Last but not least, it endorses a spending cap modeled after the Swiss Debt Brake.

The ideal base for a spending cap would be similar to a GDP-cap, but it would provide greater spending restraint in economic booms and greater flexibility in economic downturns. Fortunately, such a measurement, which helps to smooth the business cycle, does exist: Potential GDP. …basing a spending cap on potential GDP is very helpful for budgeting purposes, as it creates a more predictable budget path over an extended period of time.

There is a lot of additional information in the JEC report, so if you have any interest in America’s fiscal history, it’s worth your time to read the whole thing.

P.S. Other developed nations basically have made the same fiscal mistake as the United States. Nations in Western Europe and Japan also used to have very small governments. Once the welfare state began, however, economic liberty morphed into bloated welfare states.

If California were to decline to follow federal driver licensing mandates, would the Transportation Security Administration turn Californians away at our nation’s airports, preventing more than 10% of the nation’s population from flying? Of course not. The outrage would be palpable, and it would be directed at the federal government’s most unpopular agency, TSA.

But the incredibly low risk of federal punishment is apparently what spurred the California legislature to pass A.B. 1465, which now sits on Governor Jerry Brown’s desk. If signed, the bill would move California another step closer to compliance with the REAL ID Act, increasing the burden on California driver’s license applicants just a little more, so that TSA will continue to defer enforcement of the national ID law as to California.

But TSA hasn’t enforced REAL ID for any state since the statutory compliance deadline in 2008. (It’s ongoing mass deferment is disguised by crediting some states with satisfying a “material compliance checklist.” Find a history in our report, REAL ID: A State-by-State Update.) The reason why is not kindness on the part of the feds or good faith progress on the part of states. It’s the fact that the federal government does not have the power to demand compliance from states. State leaders would not be blamed if TSA denied people’s IDs at the airports. TSA would be.

There is no need for California to spend a dime on REAL ID compliance, but the most recent analysis of A.B. 1465 says the California DMV would incur costs of approximately $5.56 million in 2016-17 and $5.4 million each year after that. The legislator most responsible for delay and expense at the DMV is Assemblymember Rich Gordon (D-Menlo Park).

The spending is absolutely unnecessary. The federal government will always back down. There is no reason California should obey federal national ID demands.

Several Cato scholars, such as Walter Olson and Ilya Shapiro, have commented on the religious liberty and rule-of-law aspects of the Kim Davis case. In addition to their arguments, the Davis case is perhaps the clearest in modern times for a state establishment of religion.

Free Exercise is only half of the constitutional package of First Amendment religious protections. There is also the Establishment Clause, preventing the state or its agents from establishing a religion. It is a blanket anti-theocracy clause that is understood to be applicable to the states by the Fourteenth Amendment. As James Madison said on the House floor in 1789, the Establishment Clause seeks to stop a particular religion or sect from “establish[ing] a religion to which they would compel others to conform” or “enforc[ing] the legal observation of [a particular faith] by law.”

The key, under-explored factor in this case is that Kim Davis claimed “[the Christian] God’s authority” in denying same-sex couples the right to marry. By claiming “God’s authority” as the basis for denying the license—rather than any man-made law—Davis effectively established her religion in the Rowan County Clerk’s office and imposed on the religious liberty of those who hold other (or no) faiths.

People who do not ascribe to Davis’s particular brand of Christianity lose substantive rights guaranteed by the Constitution. That includes the right to civil marriage. Moreover, Davis’s establishment directly impinged on the right to freely practice any faith that accepts same-sex marriage, such as the United Church for Christ.

The right against establishment is just as important a protection for religious freedom as the Free Exercise Clause. Imagine if the Roman Empire had an anti-establishment rule. Christians pre-Constantine would have been able to expand Christianity without the threat of gruesome martyrdom. The right to be free from state-imposed religion is thus an important buttress to the Free Exercise Clause; without it, the state would always have a compelling interest in promoting its preferred religious uniformity at the expense of free exercise. That is a particularly undesirable result for a religiously diverse nation.

Regardless of what one thinks of the decision in Obergefell v. Hodges, same-sex couples have the constitutional right to civil marriage. Absent a constitutional amendment it is incumbent upon government officials to obey Obergefell. If that ruling conflicts with state officials’ consciences, their state duty not to establish their religion and impose it on others through state offices still trumps (when it comes to their official capacity—Ilya Shapiro wrote about the distinction between official and civil disobedience here).

The United States is a government of laws, not gods and men. Davis can quit, do her job, or recuse herself and let her office issue licenses without her participation, but she cannot claim God’s law as public authority to use her office to impinge on others’ rights and expect to be protected under the First Amendment. That is precisely the harm to liberty that the Establishment Clause was designed to prevent.

Peter Hannaford, a longtime aide to Ronald Reagan, has died at 82. As the Washington Post puts it, after Reagan’s term as governor ended in 1975, Hannaford “teamed with ex-Reagan aide Michael K. Deaver to handle radio broadcasts, newspaper columns and appearances that kept the presidential aspirant in the public eye” until his election as president in 1980. The Post obituary notes the last time Hannaford recalled sending Reagan an idea, in 1988 near the end of his presidency:

He had come across a saying attributed to a Chinese philosopher: “Govern a great country as you would cook a small fish.” Mr. Hannaford said he knew it would appeal to Reagan’s belief in applying only a light touch to free-market enterprise.

“I knew he would like it,” Mr. Hannaford said. “And sure enough, it was in the State of the Union speech.”

Indeed it was. The ancient Chinese philosopher was Lao-tzu (or Lao-tse, or Laozi). In The Libertarian Mind I write:

The first known libertarian may have been the Chinese philosopher Lao-tzu, who lived around the sixth century B.C. and is best known as the author of the Tao Te Ching. Lao-tzu advised, “Without law or compulsion, men would dwell in harmony.” 

And in The Libertarian Reader I include selections from the Tao. Not chapter 60, which Reagan quoted, but other sections with similar ideas:

Exterminate the sage [the ruler] and discard the wisdom [of rule],
And the people will benefit a hundredfold.

Without law or compulsion, men would dwell in harmony.

All things carry the yin and embrace the yang.
They achieve harmony through their interaction.

The more prohibitions there are,
The poorer the people will be.
The more laws are promulgated,
The more thieves and bandits there will be.
Therefore a sage has said:
So long as I “do nothing” the people will of themselves be
So long as I love quietude, the people will of themselves go
So long as I act only by inactivity the people will of themselves
become prosperous.

The people starve because those above them eat too much tax-grain.
That is the only reason why they starve. The people are difficult to
keep in order because those above them interfere. That is the only
reason why they are so difficult to keep in order.

Professor Joseph Adler of Kenyon, an expert on Chinese religious traditions, wrote about Confucianism and Taoism:

The Tao Te Ching, or the Scripture of the Way and its Power, is one of the foundational texts of Chinese civilization – in particular of the religious and intellectual tradition of Taoism. Taoism is one of the two main streams of Chinese thought, along with Confucianism. They took shape at roughly the same time, from the 5th through 3rd centuries BCE, at a time when China was in a long period of civil war, aptly named the “Warring States” period.

Taoism and Confucianism both attempted to provide a new philosophical underpinning for government and society. Confucius’ theory was that a well-ordered and harmonious society could only be brought about when the ruling classes (the aristocracy and government officials) were composed of virtuous people. Their virtue, he said, would then spread throughout society like a wind rippling through a field of grain, mediated by able officials actively managing society through rational and benevolent means.

The Taoist approach focused not on society and conventional morality but on the individual’s relationship with the natural world. The Taoists had a laissez faire theory of government, although they too said that having a good ruler at the top was crucial. The difference was that for them, the ideal “sage-king” was one who did as little as possible to interfere with the people’s natural wants and needs. Their ideal form of action in the world, for both the ruler and the ordinary person, was called wu-wei, or “actingless action” – i.e. a form of natural action that reacts spontaneously to the flow of events and changing circumstances. The sage-ruler, they said, understands that governing a large kingdom is like “cooking a small fish.” How do you cook a small fish? As lightly as possible.

Two years ago, the Supreme Court’s 7-1 ruling in Fisher v. UT-Austin (Fisher I) made clear that race-conscious college admissions programs must be subject to strict judicial scrutiny, requiring universities to prove that their consideration of race is precisely tailored to serve a compelling government interest. Because Fisher I came to the justices without a developed factual record, the Court remanded the case for further development.

After the lower court essentially rubber-stamped its previous ruling, Abigail Fisher—the applicant who claims that she was denied admission because she’s white—got a second trip to the Supreme Court, which will finally have to determine whether the University’s “holistic” review process passes constitutional muster. Cato has again filed an amicus brief supporting Fisher.

Texas’s program allows application readers to take race into account when assigning applicants a “personal achievement score.” But there’s no oversight of readers’ use of race in assigning these scores, with the result that the university can’t explain how (or how often) race plays a role in admissions decisions. All we’re left with is an opaque, arbitrary, and unaccountable program supported only by the talismanic use of the word “holistic” to evade scrutiny.

But invoking that word should not be the end of judicial review. The Court’s equal-protection precedents establish four distinct requirements that a university employing a race-conscious admissions process must satisfy to demonstrate that its plan is narrowly tailored. The University of Texas has satisfied none of them.

First, the university can’t show that its program is necessary to achieve diversity because it can’t show how or when race affects application decisions. (Moreover, about 80 percent of its freshman class is admitted under the race-neutral Top Ten Percent Law—the top 10 percent of students from each Texas public high school are automatically admitted—which the university hasn’t shown to be insufficient to produce the desired diversity.)

Second, Texas can’t show that its chosen means properly “fit” its ends because it hasn’t offered any evidence that would enable a court to evaluate whether the use of race is narrowly tailored to achieve its purported “qualitative diversity” goal.

Third, the university can’t show that the program provides individualized consideration to every applicant—which the Supreme Court demanded in its 2003 Grutter v. Bollinger decision. This requirement ensures that colleges don’t make race the “defining feature” of the application process, but the black-box nature of Texas’s admissions policy makes it impossible to ascertain whether race amounts to a thumb or a brick on the scale.

Finally, UT-Austin’s program frustrates accountability and transparency because the school wields “holistic review” as a shield to obscure the role of race in admissions and frustrate scrutiny, judicial or otherwise. This opaqueness may create more racial hostility than it remedies. Further, holistic review can serve as a cover for the illegitimate or unnecessary use of race, as statistics from a variety of American universities indicate. Even the Harvard Plan that Justice Powell in Regents of the University of California v. Bakke (1978) assumed would withstand strict scrutiny has a less-than-illustrious history, beginning with its origin as a less-controversial alternative to explicitly capping the number of Jewish students admitted. More recently, evidence suggests that Harvard’s holistic review has facilitated forbidden racial balancing with regard to lowering the number of Asian admittees.

Accordingly, the Supreme Court should review the holistic review regime at the University of Texas with an eye toward curtailing the improper use of race in university admissions nationwide.

For more on our arguments, see this SCOTUSblog essay.

I write at Politico Europe

Charee Stanley, an American flight attendant and recent convert to Islam, just filed a discrimination complaint against her employer, ExpressJet, because it won’t excuse her from serving alcohol to passengers. Stanley’s backers at the Michigan chapter of the Council on American-Islamic Relations (CAIR) say that for a time Stanley worked out an arrangement for other attendants to handle liquor serving duties, but it broke down.

Stanley’s scruples about screwpulls instantly drew the attention of culture warriors, who after a whole week spent bickering about defiant Kentucky clerk Kim Davis — in terms of online controversy, practically a Thirty Years’ War — pivoted deftly to the Stanley case and away from Davis’s refusal to license same-sex marriage as her job requires her to….

Here’s the thing: The EEOC has already sided with Muslim employees who wish to avoid handling alcohol. In 2013 the commission sued the Star Transport Co. in Illinois for failing to provide a reasonable accommodation to two Muslim truck drivers when it dismissed them for refusing to haul booze, a case that appears still to be pending.

More here. With religious accommodation in the workplace so much in the news, I’ve recently written four pieces on the subject, including my post last week in this space about the Kim Davis case (see also Ilya Shapiro’s). I’ve also written a lengthy essay on EEOC v. Abercrombie & Fitch, the hijab-accommodation case, for the forthcoming Cato Supreme Court Review, which I’ll be discussing at Cato’s Constitution Day next week (September 17). Previously in this space I’ve related issues such as government accommodation of religiously-based adoption and foster care agencies, and the wars under state anti-discrimination laws over cake-baking and related wedding services.

Finally, at Newsweek, just out, I’ve written an extended analysis of the problems with what is called the First Amendment Defense Act (FADA), a current social-conservative priority:

FADA as currently drafted isn’t really an accommodation law. It’s an our-guys-win law. It says that even if the government has set you up as the monopoly provider of some service or gatekeeper for some permission, you may use that monopoly or gatekeeper status against same-sex couples and their interests with entire impunity.

Should Republicans really be rushing to endorse this bill?

Dale Carpenter at Volokh Conspiracy has further thoughts on the potential constitutional infirmities of the bill, along with kind words for my article. 

On Monday, my colleague Caleb Brown will sit down with Trevor Butterworth, Director of Sense About Science USA and editor for STATS.org, for a live discussion as a part of our Cato Connects series.

Sense About Science’s mission is to advocate for the public interest in sound science and evidence as the basis for informed decisionmaking and political engagement. “The challenge,” Butterworth says, “is that science is not always sound and that evidence is often missing — or misinterpreted or manipulated. The opportunities for making poor policy decisions — or cherrypicking the data to fit a belief or policy objective — are enormous.” As a result, discussions on everything from GMOs to medicines to recreational drugs to the environment, and to nutrition have become more and more politicized and less and less insightful.

Tweet your questions about the relationship between governments and science with the hashtag #CatoConnects and join us at 2:00 p.m. on September 14, when Trevor Butterworth will answer live from the Cato Institute. Be sure to share our event invite on Facebook, and follow @CatoCSS and @CatoEvents on Twitter for news on upcoming events!

A new report from the National Association of Criminal Defense Lawyers highlights the myriad inadequacies in the current system of federal indigent defense. 

NACDL identifies “Seven Fundamentals of a Robust Federal Indigent Defense System,” including a system insulated from judicial interference, adequate funding, sufficient training and expertise among indigent defense lawyers, and greater transparency, and finds each of them to be lacking under current circumstances.

The nuts and bolts of how the current system fails to adhere to those fundamentals can be found in the full report here.

Notably, one reform that is entirely absent from the report is the introduction of client choice and free market competition into the indigent defense system. 

As the NACDL report itself notes:

Short of warfare, there is no more awesome use of governmental power than the power to prosecute.  A criminal prosecution can result in life-altering consequences, including the loss of reputation, property, liberty, and even life itself.  For this reason, the founders of this nation recognized that no person should stand alone against a criminal prosecution.

Given the stakes, it seems bizarre that those individuals who have the entire weight of the state brought to bear against their liberty should depend on that very same state to choose the person to represent them.  It’s certainly true that public defenders tend to be undercompensated and buried under incomprehensible caseloads; but it’s just as true that a public defender system fails to respect the agency of the people who have the most at stake.

The introduction of defense vouchers, which would allow indigent defendants to choose their own lawyers rather than have that all-important decision made at random by a judge or public defender, was the subject of a Cato Policy Analysis in 2010 by David Friedman and Stephen Schulhofer. It would allow defendants a say in their representation and force lawyers to compete to serve them. In doing so, it would come closer to ensuring those fundamental principles of indigent defense than any entirely government-run system is likely to.

The voucher idea is not just a theory; a version of it has now been implemented in Comal County, Texas, which you can read about in more detail here.

When the government takes the immense step of putting someone’s life or liberty in jeopardy, why shouldn’t that person have at least some choice in who will defend them?

From humble beginnings, a new musical has moved onto Broadway this July. Quite fitting, in a way, for the story of an American who was all about moving onward and upward. The play is called Hamilton, the story of our youngest founding father and the man on the 10-dollar bill (for now). Hamilton, created by Tony and Grammy award winner Lin-Manuel Miranda, is destined for success. The critical darling sold out 119 performances at the off-Broadway Public Theater and brought in $27.6 million, with over 200,000 tickets sold before its July 13th opening. These are huge numbers for Broadway, and among the biggest pre-opening totals in history. Nonetheless, the popularity surrounding Hamilton the man and Hamilton the musical does not come at an auspicious time for one of America’s heroes.

 On June 17th, Treasury Secretary Jack Lew shocked many, including former Chairman of the Federal Reserve Ben Bernanke, when he proclaimed that Alexander Hamilton (1755-1804)–the first and foremost Treasury Secretary–would be demoted and share the ten-dollar bill with a yet unnamed woman. Undaunted by widespread criticism, Secretary Lew continued to press his case at an event at the Brookings Institution on July 8th. When asked about the ten-dollar bill’s selection, Secretary Lew insipidly claimed that it was the “next up” for redesign in order to combat forgery. The diminution of Hamilton, for whatever reason, is simply indefensible.

 I would say that Secretary Lew should do himself a favor and buy a ticket to “Hamilton,” but he’s already seen it. How ironic. On August 26th, Secretary Lew, former Secretary Timothy Geithner, and former Secretary Robert Rubin were all coincidently at the same Hamilton performance. As Mr. Rubin remarked: “[Hamilton’s] sense of fiscal responsibility is still alive in the Treasury—people do identify with [him].” Mr. Lew echoed Mr. Rubin’s observations by saying, “Alexander Hamilton left an enduring mark on our nation, and all of his successors, including me, are indebted to him.” I, however, am having a hard time believing that Mr. Lew is being honest on the matter.

Does Mr. Lew know who Alexander Hamilton was? Hamilton was a world-class financier. He established a federal sinking fund to finance the Revolutionary War debt. Moreover, he engineered a large debt swap, in which the newly created federal government assumed the debts of individual states. By August 1791, federal bonds sold above par in Europe, and by 1795, all foreign debts had been paid off. Hamilton’s solution for America’s debt problem provided the country with both credibility and a confidence shock.

In addition to being the first and most distinguished Treasury Secretary, Hamilton was also a renowned journalist and lawyer. His most famous journalistic project was a collaboration to produce a series of 85 opinion pieces that called for the ratification of the Constitution. These essays are called The Federalist Papers and are among the most cited sources by the U.S. Supreme Court.

Hamilton’s work as a lawyer was well respected among his colleagues. Chief Justice of the U.S. Supreme Court John Marshall is known to have said that he was a mere schoolboy next to Hamilton. Indeed, in three of Marshall’s landmark decisions–Marbury v. Madison (1803), Fletcher v. Peck (1810), and McCulloch v. Maryland (1819)–he turned to Hamilton’s legal writings for guidance.

Thirty members of the Brookings Institution are seeing Hamilton this fall because they feel that Alexander Hamilton “best symbolized a seriousness of purpose around economic policy, fiscal responsibility, and support of the central government.” I hope that Mr. Lew’s recent trip to Hamilton has imbued him with a greater respect for Alexander Hamilton. He was in need of it. 

“I’m going to make sure that some employers go to jail for wage theft and all the other abuses that they engage in,” said presidential hopeful Hillary Clinton at a Labor Day rally in Illinois.

Wage theft” is an elastic sort of epithet. These days, it gets used to describe employer practices ranging from the offering of unpaid internships – a practice, it should be noted, that Hillary Clinton has engaged in herself – to not paying employees overtime when they send or read work-related email after hours.  Last year, union advocates in the press widely accused an Amazon.com contractor of “wage theft” in a dispute over whether employees should be on the clock while undergoing physical security checks. The Supreme Court ruled 9-0 that the practice was not a labor law violation in the first place, let alone “theft.” 

Of course there are cases where employers (often of the fly-by-night sort) defraud workers of promised pay. The law has long, and rightly, treated this class of cases with severity. The effect of the suddenly prevalent “wage theft” phrasing — indeed, I would go so far as to say its purpose — is to blur the lines between those cases and the countless disputes that arise under the Fair Labor Standards Act and similar laws over employee classification, portal-to-portal compensation, tip pooling, donning and doffing time, and so forth. Because the FLSA and similar laws are vague and hard to interpret, and have repeatedly been clarified only after-the-fact by court interpretations (when courts manage to agree with each other), anticipating what is lawful is often a matter of guesswork. In typical situations, established employers delivered as promised on the compensation deal that workers had come to expect, and workers similarly stayed on the job with eyes wide open, but it is argued after the fact that the intricacies of the New Deal-era FLSA required the offering of a different deal.

This is bait and switch terminology and there is no reason to give it a pass. Reporters should ask Hillary Clinton which cases, specifically, she has in mind when she talks of jailing employers, and whether that includes cases in which managers were obliged to guess what the law required of them (adapted from Overlawyered.)


If everyone agrees that forcing public employees to subsidize a labor union’s political or ideological speech impinges their First Amendment rights—and the Supreme Court has been unanimous on that point for decades—then what possible justification is there for requiring workers who’ve declined to join the union to go through the arduous process of opting out from making such payments year after year?

There is none, argues Cato’s amicus brief in Friedrichs v. California Teachers Association. As the Court recounted in Knox v. SEIU (2012), “acceptance of the opt-out approach appears to have come about more as a historical accident than through the careful application of First Amendment principles.” But as a matter of principle, opt-out plainly violates the cardinal rule that procedures involving compelled speech and association must be “carefully tailored to minimize the infringement” of First Amendment rights.

Under the opt-out approach, dissenting workers bear the risk that, if they are unsuccessful in following the opt-out procedure reluctantly administered by the union, their money will be used to further political and ideological ends with which they do not agree. The labor union, whose constitutional rights are not at stake, bears no risk at all—by default, it gets the money.

For example, a teacher who learns partway through the year that her payments to the union are being used to fund speech that she finds abhorrent—and the union here lobbies on controversial issues like abortion, gun control, and immigration reform—is still compelled by the government to continue funding that speech until the next opt-out period.

Unions, of course, favor opt-out precisely because it allows them to take advantage of inertia on the part of would-be dissenters who fail to object affirmatively. But that is no basis to countenance the wholesale violation of public employees’ First Amendment rights. Courts “do not presume acquiescence in the loss of fundamental rights,” and application of that principle here will spell the end of abusive opt-out regimes.

The Supreme Court will hear argument in Friedrichs in the middle of the upcoming term, likely in January. For more on the case and our argument, see this SCOTUSblog essay.

This week, Hillary Clinton unveiled her proposals to reform campaign finance laws. Unsurprisingly, Clinton’s proposals would make it much more difficult to criticize, you guessed it, Hillary Clinton.

Accompanying the announcement is her new campaign video, which acknowledges the elephant in the room: Citizens United was a case about censoring a movie that criticized Hillary Clinton. But rather than this biasing her opinion on the case, the video argues that her connection to the case gives her insight because “she knows firsthand what it’s done to our democracy.”

Clinton has pledged to use overturning Citizens United as a litmus test for Supreme Court justices, and she also supports a constitutional amendment to overturn the decision.

This wouldn’t be the first time a politician pushed to censor criticism as a public service. In 1798, President John Adams signed the Alien and Sedition Acts, which made it a crime to “write, print, utter, or publish” anything that might bring “the government of the United States, or either house of the Congress of the United States, or the President of the United States into disrepute or to excite against them…the hatred of the good people of the United States.” Maybe we should just resuscitate that law and add the name “Hillary Clinton.”

According to her video, Citizens United was “a conservative organization that wanted to bring down Hillary Clinton’s candidacy because they didn’t like who she is, they don’t like what she stands for”–in other words, the quintessence of political speech protected by the First Amendment. Yet, because Hillary: The Movie was funded by a corporation–a nonprofit corporation founded to forward conservative causes–the movie and its accompanying advertisements ran afoul of the Bipartisan Campaign Reform Act. In short, the government was explicitly censoring political speech.    

In Clinton’s words, according to the Associated Press: “I want to tell you, Citizens United was about me. Think how that makes me feel. A lot of people don’t know that, but the backstory is eye-opening.”

Eye-opening, indeed. A small nonprofit that sought to make movies criticizing politicians runs headlong into a law that was partially intended to silence speech critical of politicians and candidates. As Senator John Edwards (D-NC) said during the floor debates over the Bipartisan Campaign Reform Act: “[people] turn on their televisions in the last 2 months before an election and see mostly hateful, negative, personal attack ads posing as issue ads… . Those are the ads we are trying to stop.”

Senator Jim Jeffords (I-VT) complained that he “had to face seeing ads on television which totally distort the facts and say terrible things. You watch a 20-percent lead keep going down[.]”

Senator John McCain (R-AZ) thought that the ads “are negative to the degree where all of our approval ratings sink to an all time low,” and that the ads “simply drive up an individual candidate’s negative polling numbers.” Senator Dick Durbin (D-IL) grumbled that the ads “[do] not help our image.”

These quotes demonstrate that censoring critical and “negative” political speech is often a proximate goal of campaign finance “reformers.” They also show that giving elected representatives the power to censor campaign speech will unleash self-serving and grotesque motivations to protect “20-percent lead[s].”

When it comes to letting representatives alter the process by which they get elected, we should heed the words of Nobel laureate James Buchanan: “Don’t let the fox guard the chicken coup.”

In July, Georgetown law professor Michael Seidman had parallel op-eds in the Washington Times regarding religious objections to providing services to same-sex weddings. This wasn’t a point-counterpoint – neither of us saw the other’s writing before publication – but the Federalist Society invited us to respond to each other on its new blog. Seidman declined, but here’s my response. 

Professor Seidman fundamentally misunderstands the paradigm here. When people object to Obamacare Robertscare mandates or to facilitating same-sex weddings, they aren’t objecting to society’s basic laws or impeding government. Instead, they’re demonstrating the inherent social clashes that the government itself creates when it expands beyond legitimate bounds.

In other words, Seidman is correct to note that society couldn’t function if people decided they didn’t have to obey criminal laws—whether against murder or illegal left turns—but it can function very well indeed without forcing people to buy pay a “tax” for not buying health insurance. Seidman is likewise absolutely right that the government couldn’t fund itself if people could withhold tax dollars to the extent they object to federal programs, but nobody is hurt if a gay couple has a choice of 99 instead of 100 wedding photographers.

Yet Seidman sees no difference between regulations that ensure public safety and those that ensure politically correct attitudes, between generally applicable laws and those that redistribute income. It seems that in Seidman’s world, people have no rights or liberties other than those which the government deigns grant them.

From that worldview, a statist noblesse oblige could deign allow small deviations to placate eccentric superstitions, indulgences purchased for a token dhimmi tax. What’s a little freedom of conscience between friends?

Too many Americans have become so accustomed to government authority that resisting state action looks anomalous. The right to freely exercise religion—not just to worship—is thus an exception to the general rule of government power.

The cultural flashpoint surrounding wedding vendors’ pleas for toleration is evidence of a more insidious process whereby the government foments social conflict as it expands its control into areas of life that we used to consider public yet not governmental. These conflicts are exceptionally fierce because, as Bloomberg View columnist Megan McArdle put it, “the long compromise worked out between the state and religious groups—do what you want within very broad limits, but don’t expect the state to promote it—is breaking down in the face of a shift in the way we view rights and the role of government in public life.”

Indeed, it’s government’s relationship to public life that’s changing—in the places that are beyond the intimacies of the home but still far removed from the state, like churches, charities, social clubs, small businesses, and even “public” corporations that are nevertheless part of the private sector. Under the influence of the Obama administration, the Left is weaving government through these private institutions, using them to shape American life according to its vision.

Again, the key to this far-reaching agenda is the conceit that the government grants fundamental rights. In the Hobby Lobby case, the government and dissenting justices essentially argued that the rights that Hobby Lobby’s owners asserted weren’t inalienable or natural ones, but privileges bestowed by the grace of government.

Through an ever-growing list of mandates, rules, and “rights,” the government is regulating away the “little platoons” of our civil society. That civil society, so important to America’s character, is being smothered by the ever-growing administrative state that, in the name of fairness and equality, takes away rights in order to standardize life from cradle to grave.

No, Professor Seidman, what we have here isn’t merely “strong and sincere conscientious scruples against obeying generally applicable and democratically enacted laws.” And the solution isn’t “compromise” but vigilance to ensure that government doesn’t needlessly violate our most basic freedoms.

[cross-posted at the Federalist Society blog]

“As health concerns for former President Carter mount,” Caleb Brown noted recently in this space, “it’s nice to be able to look back on his time in the White House and see something remarkably positive.” Indeed, our 39th president doesn’t remotely merit the bad rap he gets from conservatives and libertarians. As I wrote a few years back, “at its best, the Carter legacy was one of workaday reforms that made significant improvements in American life: cheaper travel and cheaper goods for the middle class.” For loosening controls on oiltruckingrailroads, and airlines, he should, Daniel Bier suggests, be thought of as “the Great Deregulator.” It’s in no small part thanks to him that conservatives can cry in their microbrews over the sorry state of the 2016 Republican field.  

So the man from Plains has a lot to be proud of. In the coming months, I hope he’ll have the consolation of seeing the record corrected and his historical reputation start to rise. 

Judging by his recent press conference announcing his illness, however, Carter shares a widely held misconception about where his presidency went wrong. Asked about his regrets, he answered: “I wish I’d sent one more helicopter to get the hostages and we would have rescued them and I would have been re-elected.” Carter was referring to “Operation Eagle Claw,” the aborted Iranian hostage rescue attempt in April 1980. If you’re old enough, you probably remember: the operation never got past the initial “Desert One” rendezvous point, due to the mechanical failure of three helicopters, and eight US soldiers were killed during departure when a helicopter collided with a transport plane. 

The botched rescue attempt definitely contributed to Carter’s defeat. But the mission failed during the “easy” part; when you look at what was supposed to come next, it’s hard not to think the whole operation would have been the Bay of Pigs meets Black Hawk Down.

Writing in the Air & Space Power Journal in 2006, war gaming professor Charles Tustin Kamps observed that “the things which did cause the mission to abort were probably merciful compared to the greater catastrophe which might have taken place if the scenario had progressed further than the Desert One rendezvous.” “In the realm of military planning there are plans that might work and plans that won’t work,” Kamps writes, “In the cold light of history it is evident that the plan for Eagle Claw was in the second category.” It would have required “the proverbial seven simultaneous miracles” to succeed. 

Here’s what was supposed to happen, per the Eagle Claw factsheet at the Air Force Historical Support Division website: 

[Eagle Claw] called for three USAF MC-130s to carry a 118-man assault force from Masirah Island near Oman in the Persian Gulf to a remote spot 200 miles southeast of Tehran, code-named Desert One. Accompanying the MC-130s were three USAF EC-130s which served as fuel transports. The MC-130s planned to rendezvous with eight RH-53D helicopters from the aircraft carrier USS Nimitz. After refueling and loading the assault team, the helicopters would fly to a location 65 miles from Tehran, where the assault team would go into hiding. The next night, the team, dependent upon trusted agents, drivers, and translators [provided by the CIA], would be picked up and driven the rest of the way to the embassy compound.

Meanwhile, a separate 13-man team would peel off to attack the Foreign Ministry building and rescue three hostages being held there, as the main Delta group hit the embassy.  

After storming the embassy, the team and the freed hostages would rally at either the embassy compound or a nearby soccer stadium to be picked up by the helicopter force. The helicopters would then transport them to Manzariyeh, 35 miles to the south, by that time secured by a team of U.S. Army
Rangers. Once at Manzariyeh USAF C-141 transports would fly the assault team and hostages out of Iran while the Rangers destroyed the remaining equipment (including the helicopters) and prepared for their own aerial departure. An extremely complex operation, Eagle Claw depended on everything going according to plan. Any deviation could cause the entire operation to unravel with possibly tragic consequences. 

Just in case things didn’t go exactly according to plan, the Delta guys were issued this handy “Farsi Survival Guide” (one page of which is pictured below) to help them bargain and cajole their way out of the country without blowing their cover. For example, they could try something like: “You Iranians and Moslems are famous for hospitality. For the sake of God, I need your help.” 

In real life, things started going wrong almost instantly: “Soon after the first MC-130 arrived [at Desert One], … a passenger bus approached on a highway bisecting the landing zone. The advance party was forced to stop the vehicle and detain its 45 passengers. Soon, a fuel truck came down the highway. When it failed to stop, the Americans fired a light anti-tank weapon which set the tanker on fire and lit the surrounding area.” 

In a riveting 2006 Atlantic article, “The Desert One Debacle,” Black Hawk Down author Mark Bowden described the resulting chaos: “Suddenly the night desert flashed as bright as daylight and shook with an explosion. In the near distance, a giant ball of flame rose high into the darkness. One of the Rangers had fired an anti-tank weapon at the fleeing truck, which turned out to have been loaded with fuel. It burned like a miniature sun. So much for slipping quietly into Iran.” 

Eight copters left the Nimitz; two had to turn back on route due to mechanical problems. Of the remaining six that made it through the vicious sandstorms (or “haboobs”) on the way to Desert One, another arrived with irreparable hydraulic problems. The plan called for a minimum of six helicopters; down to five, on-scene commander Col. Charles Beckwith had little choice but to cancel the mission. As the force began to evacuate, “tragedy struck. One of the helicopters’ rotor blades inadvertently collided with a fuel-laden EC-130. Both aircraft exploded, killing five airmen on the EC-130 and three marines on the RH-53.”

Had Beckwith not hit “abort,” however, it’s easy to imagine that most if not all of the assault force would have been captured or killed and none of the hostages would have made it. Bowden quotes a Delta Force officer who summed it up well: “The only difference between this and the Alamo is that Davy Crockett didn’t have to fight his way in.”

This, to paraphrase Argo, was the worst bad idea we had.

Wait, scratch that: actually, the worst idea was the followup plan developed by the military after the Desert One debacle. According to Carter’s national security adviser Zbigniew Brzezinski: “the second plan involved going into the airport at Tehran, taking the airport, shooting up anything in the way, bombing anything that starts interfering, storming the embassy, taking out anybody who’s alive after that process and then going back and taking off.” Except the hostages had been moved out of the embassy after the first failed attempt, and the commandos would have had to try to find them at remote locations. Everybody was supposed to reconvene at the Tehran soccer stadium where a C-130, jerry-rigged with rockets so it could take off and land like a V-22 Osprey, would whisk them to safety. You can watch the modified C-130 crash and burn in a test video here (luckily no one was hurt). 

The code name for this scheme? “Honey Badger.” Yes, the second rescue plan took its moniker from the “tenacious small carnivore” identified by the Guinness Book of World Records as “the most fearless animal in the world,” and later the subject of that inescapable 2011 YouTube video—to wit: 

“The honey badger don’t care! It’s getting stung like a thousand times. It doesn’t give a [expletive deleted]. It’s just hungry. It doesn’t care about being stung by bees. Nothing can stop the honey badger when it’s hungry. What a crazy [expletive deleted]!” 

(Trigger warning: expletives not deleted in viral video link.)

As Michael Crowley noted in a Time article reporting on the scheme, Honey Badger was likely “a last-resort contingency in case Iran began executing the hostages without provocation”–a desperate measure if all else failed. What’s really astounding is that the original plan, Eagle Claw, got the go-ahead in far less desperate circumstances.

Relentless public pressure to “do something!” often leads presidents to do something stupid. The hostage rescue mission was not Jimmy Carter’s finest hour. But it could have been much worse.

Earlier today, New York Governor Andrew Cuomo proposed a $15 per hour minimum wage for his state; Vice-President Joe Biden joined the press conference.

Cato and other scholars have long argued against any minimum wage; see here.  I will not re-hash those arguments today.

Instead, let’s ask the proponents of a minimum wage why, if a $15 per hour minimum is good, why isn’t a $150 per hour minimum better? 

The answer will presumably be, “Well, $150 per hour would kills job.”  


So why is not the same true of $15 per hour, just to a milder degree? How can proponents seriously claim that minimum wages do not affect employment? Existing evidence does show small effects from most minimum wage hikes; but that is because those hikes have been modest. Were they ever large (as with Cuomo’s proposal), substantial disemployment and other distortions are inevitable.  


Ocean acidification is the name given to describe the process by which, in response to rising carbon dioxide (CO2) emissions, more and more CO2 is taken out of the atmosphere and dissolved into the surface waters of the world’s oceans, thus lowering their pH values. Such reductions are hypothesized by many scientists to harm marine life. Citing the review paper of Briffa et al. (2012), for example, Jutfelt and Hedgärde (2015) state that “a number of reports in recent years have suggested that the behavior of coral reef fish, including their activity level, boldness, behavioral asymmetry (lateralization), and responses to olfactory and auditory cues, may be affected by ocean acidification.” Such reports have promulgated widespread concern that ocean acidification may well become a major threat to marine fishes in the not-too-distant-future; and in light of this concern, the two Swedish scientists decided to conduct a study of their own to learn more about this important topic.

The subject of Jutfelt and Hedgärde’s analysis was Atlantic cod (Gadus morhua), which they describe as an “ecologically and economically important species that has a history of being exposed to overfishing (Rose, 2004) and cod populations may therefore be sensitive to the effects of additional stressors such as ocean acidification.” For their analysis, the two researchers reared juvenile Atlantic cod for 30 days in control water (~500 μatm) or water with elevated CO2 levels (~1,000 μatm), during which time the juveniles were subjected to three separate behavioral experiments: (1) swimming activity, measured by the number of lines crossed per minute (12-19 days after exposure), (2) emergence from shelter, assessed by how long it took the fish to exit a shelter after a disturbance (26 days post exposure), and (3) lateralization, measuring turning side preference and the strength of behavioral symmetry (29-30 days post exposure). The purpose of the experiments was to determine whether or not these specific behaviors were affected by exposure to elevated CO2, as they “were previously reported to be affected by CO2 exposure in tropical reef fish.”

When all was said and done, however, Jutfelt and Hedgärde report they found no effect of CO2 treatment on any of the behaviors tested, writing that “behavioral effects of CO2 are not universal in teleosts” and that “the behavior of Atlantic cod could be resilient to the impacts of near-future levels of water CO2.” Ruminating on why this may be the case, the authors note that Atlantic cod have been observed to forage in deep waters with low pH, and, therefore, may be “physiologically adapted to be tolerant to high environmental CO2 levels.”

Whatever the reason, one thing is clear. As stated by the two researchers in the final sentence of their paper, “the results obtained in this study complicate the prediction of future effects of ocean acidification on fish, suggesting that behavioral effects could be negligible in some species and that we might not be able to make good predictions until more species from representative geographical and phylogenetic groups are tested and published.” Ocean acidification alarmists—take note!


Briffa, M., de la Haye, K. and Munday, P.L. 2012. High CO2 and marine animal behaviour: potential mechanisms and ecological consequences. Marine Pollution Bulletin 64: 1519-1528.

Jutfelt, F. and Hedgärde, M. 2015. Juvenile Atlantic cod behavior appears robust to near-future CO2 levels. Frontiers in Zoology 12:11, DOI 10.1186/s12983-015-0104-2.

Rose, G.A. 2004. Reconciling overfishing and climate change with stock dynamics of Atlantic cod (Gadus morhua) over 500 years. Canadian Journal of Fisheries and Aquatic Sciences 61: 1553-1557.


As delegations finally start tackling the trickiest issues left in the Trans-Pacific Partnership negotiations, we’re getting to see the ugly consequences of trade diversion, which happens when governments liberalize trade from some countries but not all of them.  I wrote last month about Canada and Mexico’s opposition to liberal rules of origin for automobiles in the TPP because it would reduce the advantages they enjoy under NAFTA.  Now a group representing sugar growers in countries outside the TPP is protesting a proposal that would give Australia more access to the U.S. sugar market.

The federal government helps U.S. sugar growers through a complex scheme of subsidies, restrictions, and import quotas that keep the price of sugar high in the United States.  Rather than reform this baldly protectionist system, a move that would benefit almost everyone, the United States is most likely just going to give Australia a larger share of the quota.  The hope is that such an offer will be adequate to satisfy Australia’s demands in the TPP negotiations without upsetting the politically powerful U.S. sugar industry.

But sugar growers from other countries are up in arms over the proposal.  The International Sugar Trade Coalition has written a letter to the U.S. Trade Representative claiming that the TPP proposal would violate existing U.S. and international law.  But why do they care?  The ISTC represents the sugar industries of 17 small countries who support the U.S. sugar program because the import quota guarantees them access to the U.S. market.  You see, the sugar program is supposed to protect U.S. sugar growers, but it also protects inefficient foreign producers who happen to have been granted a share of the quota. 

Fiddling with the quota numbers through the TPP won’t give us freer trade; it will merely shuffle the winners and losers of the current managed trade scheme.  Australia will win because it is at the table and these other countries will lose because they are not.  One thing that’s clear is that none of thise is going to benefit U.S. consumers.