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The outrage du jour is a newspaper column entitled “Your DNA is an Abomination” published by a student newspaper at Texas State University. The case is no doubt difficult politically and practically for the people involved. But it really is not an interesting case concerning free speech. As Nancy Reagan said, we should “just say no.”

The column was taken down from the newspaper’s website. It should not have been. How can the rest of us assess its arguments absent an authoritative version of the writing? The student body president has called for defunding the student newspaper. He should not be advocating punishing speech he does not like. A few hundred people have signed an online petition calling for the paper to be defunded. But let’s say I proposed an online petition to take away the right to petition the government “for redress of grievances.” If several hundred people sign my petition, would it be right? No, it would deeply offend the First Amendment.

Texas State President Denise M. Trauth has said the column was “racist” and said its themes were “abhorrent.” So far so good. She is responding to speech with more speech. But she also said, “I expect student editors to exercise good judgment in determining the content that they print.” That is a sensible view but also could be taken as a threat. The president adds, “The Star’s editors have apologized for the column and are examining their editorial process.” But what exactly went wrong in the editorial process? And what precisely are the editors apologizing for? The main issue seems to be that the essay offended or angered people. Of course, Paul Robert Cohen’s jacket that said “F— the Draft” angered and offended people. It was protected speech. Gregory Lee Johnson offended many people (including a couple Supreme Court justices) by burning an American flag. His symbolic speech was also protected by the First Amendment. Living in a free society means you risk occasionally being angered or offended. The important thing is that we can have a reasoned debate about whatever the content of this essay was.

Now imagine there was a “hate speech” exception to the First Amendment. Would such an exception allow public officials to censor “Your DNA is an Abomination?” The author apparently wrote:

Ontologically speaking, white death will mean liberation for all. To you good-hearted liberals, apathetic nihilists and right-wing extremists: accept this death as the first step toward defining yourself as something other than the oppressor. Until then, remember this: I hate you because you shouldn’t exist. You are both the dominant apparatus on the planet and the void in which all other cultures, upon meeting you, die.

So does using the verb “hate” in regard to a group of people constitute “hate speech?” Or are such statements only subject to censorship if the speaker is an “oppressor” but not if they are one of “the oppressed?” Who decides which speakers belong in which categories and thus who can use the verb and who cannot? The courts? Legislatures?

We do know this. Absent a hate speech exception to the First Amendment, this essay has been pulled from a website, its editors have apologized, and the highest-ranking public official involved seems to be obliquely threatening the newspaper and the author of the essay. If “hate speech” were not protected by the Constitution, what would have happened?


While U.S. trade policy under the Trump administration has become a confusing mix of bluster, posturing, threats, and uncertainty, China has gone in the other direction, at least incrementally by lowering some of its tariffs unilaterally. On November 24, China’s Ministry of Finance announced that it would cut tariffs on 187 consumer products. The lower duty rate took effect on December 1, so Chinese consumers are now benefitting from more competition and lower prices. As noted in the announcement, the average tariff on the covered products will be brought down from 17.3% to 7.3%. To give some specific examples, the tariff on cosmetics will be reduced from 10% to 5%; 30% to 10% for electronic toothbrushes; 32% to 10% for coffee makers; and 20% to 10% for mineral water. Baby formula and diapers will no longer face tariffs at all, dropping from 20% and 7.5%, respectively.

Of course, China is far from perfect on trade policy. There is plenty of Chinese industrial policy and protectionism remaining. The World Trade Organization can probably handle more of these trade practices than people think, but new rules may be necessary to deal with certain issues.

Nevertheless, the tariff reduction is a positive development. Commentary on this policy change suggests that the Chinese government’s goal here was, in part, to satisfy the demand of Chinese consumers and to improve the efficiency of Chinese production by introducing foreign competitors. These days, it is nice to see any government basing decisions on this kind of thinking. (And it may contribute to China soon becoming the world’s largest importer, as one report suggests.)

One can imagine that the Trump administration would try to take credit for this tariff reduction. All that badgering of China paid off, right? In reality, this is the fourth tariff cut since 2015. The previous three tariff cuts reduced tariffs on 152 consumer products totalling $11 billion per year in imports. This time the tariff cut has an even broader impact: Imports under this tariff cut are valued at up to $14 billion per year.

While a unilateral tariff cut is always welcome, it is worth noting that taking action unilaterally also means the tariff cut is not bound by an international agreement, and therefore the decision can be reversed at any time. For greater stability and predictability, these tariffs cuts could be incorporated in a trade agreement, as some other countries have already negotiated with China, and which the United States should consider as well. This would provide the predictable and stable framework both businesses and consumers need. 

It isn’t very often that free traders at the Cato Institute and the anti-corporate left agree on matters of trade policy. We free traders oppose barriers and subsidies and seek straightforward, nonintrusive rules to ensure an equality of opportunity for businesses, workers, investors, and consumers. The left tends to see those rules as asymmetrically beneficial to business and seeks to leverage trade barriers and subsidies to achieve what it defines as a greater equality of outcome. Those fundamental differences explain why you would see very little overlap in a Venn diagram depicting the policy objectives of Cato’s trade center and, say, Joseph Stiglitz or Public Citizen’s Global Trade Watch.

But a shaded intersection does exist. It exists because free traders are not “pro-business” to the left’s “anti-business.” We are “pro-market.” Accordingly, we are skeptical of rules or policies that tip the scales in favor of one interest group over another. That’s called protectionism. 

Investor-State Dispute Settlement (ISDS) is one such example. ISDS provisions are intended to ensure that foreign investors—usually companies that have acquired or established operations abroad—are protected from actions or policies of the home government that fail to meet certain standards of treatment and that cause the investor economic harm. ISDS confers special legal privileges on foreign-invested companies, including the right to sue host governments in third-party arbitration tribunals and win damages for failing to meet those standards. 

One might immediately understand why the left would take issue with special provisions that enable multinational corporations to challenge governments’ efforts to regulate them, but there are many problems with ISDS from a free-market perspective, as well. 

Join us tomorrow on the Hill for a discussion. Panelists include:

  • Joseph Stiglitz, Nobel Prize-winning economist and professor at Columbia University
  • Dan Ikenson, director of Cato Institute’s Herbert A. Stiefel Center for Trade Policy Studies
  • Bruce Fein, Fein & DelValle, PLLC constitutional law expert and associate deputy attorney general under President Ronald Reagan
  • Lori Wallach, director of Public Citizen’s Global Trade Watch
  • Moderator: Adam Behsudi, trade reporter for Politico


Democrats have been relentlessly attacking the pro-growth elements of the GOP tax bills, such as the corporate tax rate cuts. They label efforts to improve incentives for working and investment as “trickle-down economics.”

Here are some recent examples:

  • Sen. Pat Leahy (here): “Even these huge corporate tax cuts are not structured in a way that would truly encourage investments here at home and boost workers’ wages.”
  • Sen. Kirsten Gillibrand (here): “After the tax plan was released, a lot of talking heads on TV dredged up the talking points about the virtues of “trickle-down economics”—the myth that if only corporations had more money, it would help everyday American families.”
  • Rep. Tim Ryan (here): “Instead of fixing our broken tax system, the so-called tax ‘reform’ legislation the Republican Majority just rushed through the House relies on the same supply-side, trickle-down economics that has failed in the past.”
  • Rep. Nancy Pelosi (here): “Their trickle-down economics has always been in their DNA. It has never created jobs…”

The House and Senate tax bills include numerous provisions that will not spur growth. But there are plenty of supply side elements as well, and they received support in yesterday’s Joint Committee on Taxation (JCT) dynamic modeling report.

Here are a few findings:

  • “Overall, the net effect of the changes to the individual income tax is to reduce average tax rates on wage income by about one percentage point, while reducing effective marginal tax rates on wages by about 2.4 percentage points.” The marginal rate cuts “provide strong incentives for an increase in labor supply.”
  • “The projected increase in GDP during the budget window results both from an increase in labor supply, in response to the reduction in effective marginal tax rates on wages, and from an increase in investment in response to the reduction in the after-tax cost of capital.”
  • “The macroeconomic estimate projects an increase in investment in the United States, both as a result of the proposals directly affecting taxation of foreign source income of U.S. multi-national corporations, and from the reduction in the after-tax cost of capital in the United States due to more general reductions in taxes on business income.”

So the JCT views GOP efforts to reduce marginal tax rates and improve investment incentives with favor. The problem is that many of the proposed tax changes would add to deficits and not spur growth, combined with the JCT’s off-base assumptions about “crowding out.” The JCT assumes large reductions in investment as deficits from tax cuts supposedly raise interest rates.

J.D. Foster challenges those assumptions here. He notes, “The national debt doubled, and then doubled again, under President’s George W. Bush and Barack Obama, respectively, while real interest rates remain astounding low.” Despite that, the JCT assumes that a modest increase in borrowing for tax cuts would raise interest rates so much that it would choke off investment.

That does not make sense. The solution is to combine tax cuts with spending cuts to limit deficits, and to focus more of the tax changes on pro-growth reforms.

There’s yet more strangeness afoot in the world of financial regulation.  No, it’s not the CFPB this time.  It’s the generally more staid Securities and Exchange Commission (SEC).  Earlier this week, the Department of Justice weighed in on Lucia v. SEC, a case challenging the constitutionality of the SEC’s in-house judges, known as Administrative Law Judges (ALJs).  What is strange is that the DOJ sided with Raymond Lucia and against the SEC.  Seemingly in response, the SEC took action and ratified the appointment of its ALJs, a move it had been resisting for some time. 

The case is currently with the Supreme Court where the Court is considering whether it will hear and decide the matter.  The question is whether ALJs are “mere employees” or are instead “inferior officers.”  If the latter, their appointment is subject to the appointments clause in the Constitution, which permits Congress to “vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.”  Since the process for appointing ALJs has (until recently) not been done by any of these, if they are indeed inferior officers, their appointment would be unconstitutional. 

Cato has filed an amicus brief in support of Lucia.  Given the great discretion that ALJs wield – hearing and ruling on both the admissibility and credibility of evidence, presiding over hearings, and issuing opinions – it is strange to say they are not inferior officers.  Resting on the finality of the decisions alone seems insufficient.  And indeed in another case arguing the same issue, whether SEC ALJs are inferior officers, a federal appeals court in Colorado ruled that they are.  Since there is now a circuit split, with appeals courts in two circuits issuing opposite rulings, it seems likely the Supreme Court will hear the case to decide the issue.

The appeal to the Supreme Court is of a decision by the federal court of appeals in D.C., which ruled that, because ALJs’ opinions are not final and can be reviewed by the SEC commissioners, the ALJs are not in fact inferior officers.

The problem for the D.C. Circuit Court of Appeals is that it already ruled on this question.  In Landry v. FDIC, the D.C. Circuit found that ALJs at the FDIC are not inferior officers because their opinions are not final.  This is the case on which the D.C. Circuit relied in Lucia.  Landry was also appealed to the Supreme Court, but the Court did not take it up. 

Speaking of Landry. When Landry was pending before the Supreme Court, just as Lucia is now, the Department of Justice weighed in on that case, just as it did recently in Lucia.  But that time, the DOJ sided with the FDIC, arguing that the lack of finality in ALJ decisions makes them mere employees and not inferior officers.  Exactly the opposite of what DOJ is now arguing in Lucia.

Although it is generally unusual for the government to be on both sides of a case, it is not the first time this DOJ has weighed in opposite a government agency.  In another case that is still pending before the D.C. Circuit, the DOJ submitted a brief in support of PHH, a mortgage company challenging the constitutionality of the structure of the CFPB.  PHH has argued that the CFPB’s structure, with a single director at its head that is arguably not removable except for cause by the president, is unconstitutional.  Cato has also submitted a brief in this case, supporting PHH’s challenge to the CFPB’s structure. 

Both PHH and Lucia present similar threats to executive power and in both cases the DOJ is making a similar argument: certain structures in each limit the president’s ability to fulfill his constitutional duty to “take care that the laws be faithfully executed.”  In the case of the CFPB, it is the president’s inability to remove the director except for cause that DOJ argues frustrates the president’s ability to fulfill his duty.  In the case of the SEC, it is both the fact that ALJs are not directly appointed by the head of the SEC (who are in turn appointed by the president) and that they are subsequently only removable for cause that limits the president’s authority.

I am certainly not one to argue for an overly powerful executive.  However, the president is at least an elected official and therefore accountable to the people.  As I have argued (over and over again), the structure of the CFPB offers almost no accountability to the people, and the SEC’s method for selecting ALJs has presented similar issues.

So has the SEC fixed the problem by ratifying the appointment of its ALJs?  Sort of, but it may have caused other problems.  The question of whether ALJs are properly appointed has been percolating for awhile.  There are likely two reasons that the SEC didn’t just ratify the ALJs’ appointments when the issue arose.  First, the ratification could be seen as an admission that ALJs were not previously appointed properly, and it could therefore call into question all decisions already issued by SEC ALJs in the past.  Indeed, Lucia’s case remains live because the ALJ issued the opinion in that case before the ratification.  Second, the SEC has only five of the more than 2,000 ALJs in various federal agencies, who are selected through the same process.  Admitting that the SEC’s ALJs are not properly appointed could call into question both the appointment of and decisions made by the thousands of other ALJs throughout the federal government.  The SEC’s action may therefore had wide-ranging consequences in the days and months ahead.

Beyond the highly technical question of whether ALJs have been properly appointed is the bigger question of whether their current employment at enforcement agencies like the SEC is good policy.  In many cases, there is concurrent jurisdiction between ALJs and federal courts.  Federal courts, of course, are established under Article III of the constitution and are subject to certain safeguards as our judicial branch.  Allowing the government’s lawyers to choose whether to bring a case against someone in federal court or before the agency’s own ALJ, while the defendant has no such option, presents if not a question of actual constitutional due process at least a question of fairness.  That, however, will be a fight for another day as it is not a question presented to the Court in Lucia.  Although it is one that the SEC would be well advised to consider on its own, especially while its ALJ program is in its current state of flux. 

This morning the House Committee on Education and the Workforce released its legislation to reauthorize the Higher Education Act, the source of most of what the federal government does in higher ed, especially provide hundreds-of-billions of dollars in student aid. The new legislation is called the Promoting Real Opportunity, Success and Prosperity through Education Reform—or PROSPER—Act. (Oh, these names!) It will take a while to comb through in detail—it’s 542 pages long—but here is a quick reaction to some core parts from a rapid skimming of the bill (and some reporting on a leaked draft):

  • What needs to happen, ultimately, is for federal student aid to be phased out. It fuels tuition inflation, credential inflation, and noncompletion, and students with a demonstrated ability to do legitimate college-level work in in-demand fields would almost certainly be able to find private loans; both borrower and lender would likely profit. This bill, not surprisingly, does not phase aid out. It does, though, consolidate aid programs, and takes some small steps forward, capping total amounts students and their families can borrow from Washington, and letting schools say they won’t let students borrow a lot if the program doesn’t seem to justify it. The federal loan limits aren’t low—from a cap for undergraduate dependent students of $39,000, to a grand possible limit for certain borrowers of $235,500—but just saying there should be caps below the “cost of attendance”—basically, whatever colleges charge plus other expenses—is a start.
  • Other efforts to curb prices and noncompletion include making schools responsible for paying back some of the debt of students who are struggling to repay, and conditioning some funds for minority-serving institutions on at least 25 percent of students completing their programs or successfully transferring to other institutions. Both of these changes appear to put blame on institutions while ignoring the root problem—the federal government gives people money to pay for college without any meaningful assessment of their ability to do college-level work—but it might have some positive effects on prices and completion.
  • The law would end “gainful employment” regulations targeting for-profit colleges, and would also end a requirement that for a school to be accessible online in a state, it must be approved by that state even if its physical home is somewhere else. These things would free the system up a bit, but how much is unclear.

There is a lot else in there—provisions on TRIO programs, accreditation, a data “dashboard” on school and program outcomes, and more—and I’ll really have to scrutinize the thing to make sure I have all the details right. But from a quick look, this bill would generally move in the right direction, though with many miles to go to reach good higher education policy.

Republicans are scrambling to adjust their tax bill to satisfy concerns of lawmakers worried about budget deficits. The Joint Committee on Taxation (JCT) released a report yesterday finding that the government would lose $1 trillion over a decade in revenue even including the dynamic growth effects. Numerous economists (e.g. here and here) have criticized the JCT’s modeling for undercounting the growth benefits.

Still, the JCT’s $1 trillion figure is within the $1.5 trillion that Republicans allotted themselves for the tax bill. So it is surprising that some senators are moving the goalposts and demanding more revenue. But adding triggers or tax increases makes little sense because rising deficits in coming years will be mainly driven by rising spending, not revenue shortfalls—with or without a tax bill.

The chart below shows CBO’s baseline projections of spending and revenues as a share of gross domestic product (GDP). Revenues (red line) are set to rise from 17.7 percent of GDP this year to 18.4 percent by 2027, while outlays (blue line) will jump from 20.5 percent to 23.6 percent. Revenues creep upwards partly because of “real bracket creep” as people move into higher tax brackets. The chart clearly shows that deficits will rise because of rapid spending growth.

The green line shows revenues including the JCT’s projected effects of the Senate tax bill. Revenues fall in the short run, then rise as a result of numerous tax breaks expiring, and as the economy expands modestly per the JCT estimate. The Senate bill would add debt in the near term, but by year 10 would begin reducing deficits.

Even with the JCT’s lowballed growth estimates, projections show that spending restraint is the key to deficit reduction. Rather than adding tax increases, deficit worriers in the Senate should work to replace no-growth provisions in the tax bill, such as child credits, with pro-growth provisions, such as further rate cuts. And rather than holding up the tax bill, they should redouble their efforts in the new year to cut discretionary spending and reform entitlement programs.


Note: the green line is rough estimate as the JCT does not breakout dynamic revenue effects from its estimate of spending increases due to a rising interest rate.

It is no secret that Secretary of State Rex Tillerson and President Trump haven’t been getting along. According to the New York Times, the administration has developed a plan to replace Tillerson with current CIA director Mike Pompeo. If ousted, Tillerson would have one of the shortest stints as secretary of state in U.S. history—not the worst consequence of that position, though an embarrassing one for Tillerson, and perhaps the administration. But the most troubling consequence of Tillerson’s departure would be to replace Pompeo with Senator Tom Cotton as CIA director.

To begin with, it’s difficult to believe Cotton is being considered for the position because of his qualifications. Cotton is a freshman senator with no experience in intelligence. Instead, it seems he is being considered for the prestigious role as director because of his “easy” relationship with President Trump. His support for Trump has indeed been unfaltering: he consistently endorses the president’s incoherent foreign policy, and exhibits what seems like blind loyalty rather than objective analysis. For example, on October 9, on The Global Politico podcast, when speaking about Iran, Cotton seemed to indicate that Tillerson and Defense Secretary Mattis should resign if they are unwilling to execute the president’s policies. Trump’s promotion of Cotton also highlights the president’s own desire to surround himself with yes-men who will tell him what he wants to hear.

Second, he supports torture and other extreme interrogation techniques, like waterboarding, and voted against anti-torture safeguards. Cotton has gone as far as to say that waterboarding, currently illegal, is not torture. If Cotton becomes CIA director, he may push to end restrictions around it, which would contradict the assessments of experienced intelligence professionals.

Third, even though his support for the prison at Guantánamo Bay—referred to as Gitmo—is along party lines, it indicates his erroneous thinking on terrorism. Not only does he routinely inflate the threat of terrorism, but his 2015 statement that  “there are too many empty beds and cells there right now” ignores the fact that the prison has served as a rallying call for terrorist groups, and has undermined U.S. counterterrorism efforts worldwide. Also, his support for Gitmo in general is puzzling considering his legal background: he’s a graduate of Harvard law, clerked for a federal judge Jerry Smith of the 5th Circuit, and practiced law at Gibson, Dunn & Crutcher before joining the Army and holding political office. His defense of a detention facility whose very existence and jurisdiction has caused the Supreme Court to step in at least four times raises questions about his positions on the executive’s power during wartime.

And fourth, his commitment to a hawkish foreign policy is unwavering. For example, his opposition to Iran is so strong that in 2015 he penned an open letter to Iran’s leadership, directly contradicting and undermining ongoing U.S. diplomacy. This summer, he said, “The policy of the United States should be regime change in Iran.” As head of the CIA, his hawkish tendencies will likely result in more military intervention, risking similar disasters like the never-ending wars of Iraq and Afghanistan. Also, intelligence should be driven by objectivity and empirical evidence, and when it is not, disasters like Iraq occur. 

In other words, the administration should take pause before appointing Senator Cotton, an overtly hawkish politician, to the coveted position of CIA Director.  

It’s obviously too early to spike the football, but there is a provision in both the Senate and House tax bills that everyone should be able to endorse, except maybe colleges and their athletics departments: eliminating the 80 percent federal tax deduction college sports season ticket holders get when they pay “seat license” fees—often called “charitable gifts”—charged by schools. It’s an absurd deduction that I’ve complained about periodically, and it’s nice to see it targeted for elimination. And in case we need a reminder that this deduction has zilch to do with the “public good” that higher ed so often gives as its excuse for every special treatment it demands, USA Today has reported that this season 12 big football schools alone are on the hook for at least $70 million to buy out fired head coaches. Sounds like a lot of private good there.

These days it seems like we on Team America can’t agree on anything, but we all ought to agree on this: the seat license deduction must go.

This is the first in a series of posts on global temperature records. The problems with surface thermometric records are manifold. Are there more reliable methods for measuring the temperature of the surface and the lower atmosphere?

Let’s face it, global surface temperature histories measured by thermometers are a mess. Recording stations come on- and offline seemingly at random. The time of day when the high and low temperatures for the previous 24 hours are recorded varies, often changing at the same station. This has a demonstrable biasing effect on high or low readings. Local conditions can further bias temperatures. What is the effect of a free-standing tree 100 feet away from a station growing into maturity? And the “urban heat island,” often very crudely accounted for, can artificially warm readings from population centers with as few as 2,500 residents. Neighboring reporting stations can diverge significantly from each other for no known reason.

The list goes on. Historically, temperatures have been recorded by mercury-in-glass thermometers housed in a ventilated white box. But, especially in poorer countries, there’s little financial incentive to keep these boxes the right white, so they may darken over time. That’s guaranteed to make the thermometers read hotter than it actually is. And the transition from glass to electronic thermometers (which read different high temperatures) has hardly been uniform.

Some of these problems are accounted for, and they produce dramatic alterations of original climate records (see here for the oft-noted New York Central Park adjustments) via a process called homogenization. Others, like the problem of station darkening, are not accounted for, even though there’s pretty good evidence that it is artificially warming temperatures in poor tropical nations.

Figure 1. Difference between satellite-measured and ground-measured trends. Artificial warming is largest in the poor regions of Africa and South America. (Source: Figure 4 in McKitrick and Michaels, 2007).

There are multiple “global” temperature histories out there, but they all look pretty much the same because they all run into the problems noted above, and while the applied solutions may be slightly different, they aren’t enough themselves to make the records look very different. The most recent one, from Berkeley Earth (originally called the Berkeley Earth Science Team (BEST) record) is noteworthy because it was generated from scratch (the raw data), but like all the others (all using the same data) it has a warming since 1979 (the dawn of the satellite-sensed temperature era) of around 0.18⁰C/decade. (Computer models, on average, say it should have been warming at around 0.25⁰C/decade.)

They all have a problem with temperatures over the Arctic Ocean as there’s not much data. A recent fad has been to extend the land-based data out over the ocean, but that’s very problematic as a mixed ice-water ocean should have a boundary temperature of around freezing, while the land stations can heat up way above that. This extension is in no small part responsible for a recent jump in the global surface average.

It would sure be desirable to have a global surface temperature record that suffered from none of the systematic problems noted above, and—to boot—would be measured by electronic thermometers precisely calibrated every time they were read.

Such a dream exists, in the JRA-55 dataset. The acronym refers to the Japan Meteorological Office’s (originally) 55-year “reanalysis” data, and it updates to yesterday.

Here’s how it works. Meteorologists around the world need a simultaneous three-dimensional “snapshot” of the earth’s physical atmosphere upon which to base the forecast for the next ten to sixteen days.  So, twice a day, at 0000 and 1200 Greenwich Mean Time (0700 and 1900 EST) weather balloons are released, sensing temperature, pressure, and moisture, and tracked to determine the wind. There’s also satellite “profile” data in the mix, but obviously that wasn’t the case when JRA-55 began in 1958. These are then chucked into national (or private) computers that run the various weather forecast models, and the initial “analysis,” which is a three-dimensional map based upon the balloon data, provides a starting point for the weather forecast models.

Once the analyzed data had served its forecasting purpose, it was largely forgotten, until it dawned upon people that this was really good data. And so there have been a number of what are now called “reanalysis” datasets. The most recent, and the most scientifically complete one is JRA-55. In a recent paper describing, in incredible detail, how it works, the authors conclude that it is more reliable than any of the previous versions, either designed by the Japan Office or elsewhere.

Remember: the thermistors are calibrated at the release point, they are all launched at the same time, there’s no white box to get dirty, and the launch sites are largely in the same place. They aren’t subject to hokey homogenizations. And the reanalysis data has no gaps, using the laws of physics and a high-resolution numerical weather prediction model that generates physically realistic Arctic temperatures, rather than the statistical machinations used in the land-based histories that inflate warming over the Arctic Ocean.

There is one possible confounding factor in that some of the launch sites are pretty close to built-up areas, or are in locations (airports) that tend to attract new infrastructure. That should mean that any warming in those places is likely to be a (very slight) overestimate.

And so here is JRA-55 surface temperature departures from the 1981–2010 average:

Figure 2. Monthly JRA-55 data beginning in January, 1979, which marks the beginning of the satellite-sensed temperature record.

The warming rate in JRA-55 until the 2015–16 El Niño is 0.10⁰C/decade, or about 40% of what has been forecast for the era by the average of the UN’s 106 climate model realizations. There’s no reason to think this is going to change much in coming decades, so it’s time to scale back the forecast warming for this century from the UN’s models—which is around 2.2⁰C using an emissions scenario reflecting the natural gas revolution. Using straight math, that would cut 21st century warming to around 0.9⁰C. Based upon a literature detailed elsewhere, that seems a bit low (and it also depends upon widespread substitution of natural gas for coal-based electricity).

JRA-55 also has a rather obvious “pause” between the late 1990s and 2014, contrary to recent reports.

The fact of the matter is that what should be the most physically realistic measure of global average surface temperature is also our coolest.

Former New York governor Eliot Spitzer, who resigned in disgrace after a 2008 scandal, has written a short essay by way of memoir in the recent 50th anniversary issue of New York magazine. As one who’s written more than my share about Spitzer’s abuses of power as governor and attorney general, I wasn’t expecting to feel much sympathy, and mostly I didn’t. But then I got to the last paragraph:   

I’m a builder now. Most of what my dad built was on the Upper East Side, because that was the heart of the city. Now it’s Brooklyn. We have a site under construction on Kent Avenue in Williamsburg. As a lawyer, as a prosecutor, in politics, there’s a lot of talk. Occasionally things happen. When you’re building, you actually see concrete being poured and curtain wall being applied to the façade. It’s enormously satisfying. I hate to sound like Ayn Rand, but there’s something very rewarding about that tangible productivity.

My reaction was: hold that thought! And pursue it further, maybe even to the point where being a builder—or for that matter sounding like Ayn Rand—involves no trace of apology or embarrassment.

Fiscal rules can theoretically improve policy by eliminating “time inconsistency” among lawmakers. But the proposed fiscal trigger being discussed in the Senate tax reform bill would be a terrible fiscal rule.

You can see the thinking. Several senators worry about tax cuts blowing a big hole in the public finances. If they do not have the desired impact on economic growth, resulting in less revenue than expected, the budget deficit will grow and drive the national debt even higher. Concerned senators therefore seek a mechanism whereby if revenues are lower than expected, tax cuts will be partially reversed.

It’s welcome that some senators take the US federal government’s burgeoning national debt seriously. But there are obvious flaws with this plan (though we do not know details as yet), some of which have been discussed widely already.

First, how exactly will deviations in revenues be judged? An economy is a complex organism, and it is difficult to disentangle how much any change in revenue relative to forecasts is due to changes in tax rates as against other factors. Just look at the debate in the UK. Last week, the Daily Mail newspaper published a report that tax receipts following corporate tax cuts there had been much higher than expected. But experts from the Institute for Fiscal Studies pointed out that much of this was due to a faster recovery of corporate profits in the financial sector and the effects of Brexit, which had little to do with the changing rate. Under a trigger which merely judged revenues against forecasts, a host of things that affect revenues (both upwards and downwards) could be chalked up as the effects of tax policy, potentially resulting in damaging tax rises.

Then, as J.D. Foster notes, there are likely to be other tax policy changes and changes in growth forecasts in future years too. How will these be disentangled and the effects of this specific Act isolated? Will the trigger apply to just a particular revenue stream, such as corporate income tax revenues, or more broadly to capture all the spillovers of any investment boost? If the former, the probability that the trigger will be activated is highly dependent on the accuracy of any analysis of the incentives to incorporate versus operating as a passthrough. In other words, there are huge unknowns here.

Second, the inclusion of a trigger mechanism actually dampens the pro-growth effects of the tax plan, and risks lower-than-expected revenues becoming a self-fulfilling prophecy. Take corporate rates. On the margin, uncertainty about what the corporate rate might be in the long term deters investments today. Less investment today results in lower GDP and lower tax revenues elsewhere in the code. This lower-than-expected tax revenue then activates the trigger (if it applies across total revenues) which raises corporate taxes. There is good reason why economists say that tax policy should provide certainty and permanence in regard to rates. The GOP plan already has a lot of phase outs resulting from the Senate reconciliation rules. The last thing it needs is the risk of more.

Third, you do not need to be a Keynesian to recognize that an unforeseen recession, which would dampen revenues relative to forecast, would be a terrible time to worsen supply-side incentives by increasing the corporate income tax or marginal income tax rates. In truth, Congress would likely override the trigger in such circumstances. But if the trigger would simply be abandoned when it bound, then it suggests it is not a very well-designed trigger! Of course, there could be a recession escape clause, but similar logic applies more broadly if the economy grows more slowly than expected, due to reasons other than tax reform changes.

In short, a fiscal trigger that threatened higher taxes would introduce considerable uncertainty, risk tax hikes at the worst possible time, and could risk tax hikes when other factors resulted in lower revenue growth. 

On November 22, after some reluctance, Secretary of State Rex Tillerson joined the United Nations and United Kingdom in calling the current Rohingya crisis an “ethnic cleansing.” Holding Myanmar’s military, security forces, and local vigilantes responsible for the crisis, Tillerson stated that the United States could pursue accountability via targeted sanctions. While some hailed Tillerson’s label of ethnic cleansing as a start, it’s worth taking a closer look at the politics behind it. First, ethnic cleansing does not elicit a legal response, whereas the labels of “crimes against humanity” or “genocide” do. Second, targeted sanctions are known to be ineffective, so threatening Myanmar with them seems unproductive.   

The current humanitarian crisis began on August 25, when the Arakan Rohingya Salvation Army coordinated an attack on Myanmar’s police and security forces. Myanmar’s military crackdown on the Rohingya population was severe, resulting in a mass exodus that is now called the fastest growing refugee emergency in the world. Bangladesh, one of the poorest countries in the world, is now host to at least one million Rohingya refugees, and relief agencies like the United Nations Children’s Fund are struggling to establish a health system to try to limit malnutrition and the spread of disease. Stories of burning villages, massacres, sexual violence and rape are emerging daily. So, then, why is there a global unwillingness to label the Rohingya persecution by the Myanmar government and military as genocide?

There are three main reasons why “ethnic cleansing” is preferred as a label over “genocide.”

First, labeling a crisis “ethnic cleansing” has no legal implications—and hence is easier for states to deal with. The Convention on the Prevention and Punishment of the Crime of Genocide has declared genocide to be a crime under international law, and defines it as “the intent to destroy an ethnic, national, racial or religious group.” Ethnic cleansing, on the other hand, refers to the expulsion of a group from a certain area, but there is no treaty that determines its parameters. Even though the lines between ethnic cleansing and genocide are blurry, the former requires no domestic and international legal action. The label of ethnic cleansing, therefore, seems like a call for action but in reality is less politically charged, and is more like a “feel good” option for the international community.    

Second, labeling an atrocity as ethnic cleansing is less time consuming. Historically, applying the label “genocide” takes decades. For example, the systematic killing of the Armenian people by the Ottoman Empire in 1915–1917 was first recognized as genocide by the United States in 1975 (though Alabama and Mississippi still do not recognize it). While 28 countries recognize the Armenian genocide, Turkey continues to reject the label. Similarly, the UN recognized the organized targeting and killing of the Tutsis in Rwanda in 1994 as genocide in 2014—20 years after the atrocities. Just last week, Ratko Mladic, the “butcher of Bosnia,” was found guilty of genocide and crimes against humanity twenty years after committing the acts, and after a trial that took five years to conclude.

And third, ethnic cleansing opens the door for the United States to impose specific economic and military sanctions on Myanmar. The State Department is especially interested in pursuing sanctions against Myanmar’s government and military officials who are directly responsible for the atrocities. The problem is that sanctions are typically unsuccessful in changing state behavior, so even if the United States imposed specialized sanctions on Myanmar, it would do little to ease the plight of the Rohingyas. Targeted sanctions could also derail Myanmar’s already slow economic development, which is largely due to decades of oppressive military rule.

Myanmar’s government, military, and Buddhist hardliners not only continue to deny allegations of genocide but have become emboldened in their persecution of the Rohingyas. For example, Myanmar’s authorities constantly link Rohingyas, who are Muslim, to terrorism, taking advantage of the rhetoric of the Global War on Terror that has mostly targeted Muslims worldwide. Though there are some concerns about jihadist recruitment in the Rakhine province, there is little evidence to suggest the Rohingya as a group are a unique threat. Myanmar’s leader, the now defamed Aung San Suu Kyi, even went as far as to blame “fake news” for distorting information regarding the latest military crackdown in the province, calling it a “huge iceberg of misinformation.” Amidst pressure from Bangladesh, Myanmar signed a repatriation program, but has agreed only to take in those refugees who can present identity documents, such as government-issued “white cards.” This of course is an impossible feat for thousands who fled with almost nothing—and will most certainly be unable to produce any evidence of citizenship and/or residency.

The label of genocide, however, is important—and necessary in the Rohingya case. The most significant advantage that genocide has over any other label is that Myanmar’s authorities would come under the jurisdiction of the International Criminal Court (ICC), a special court that investigates and prosecutes war crimes, crimes against humanity, and genocide. Even though proving genocide takes time, there is a great deal of empirical evidence in the Rohingya case. For example, Article II of the Convention on the Prevention and Punishment of the Crime of Genocide outlines five acts that constitute a genocide:

  1. Killing members of the group,
  2. Causing serious bodily or mental harm,
  3. Deliberately inflicting conditions of life calculated to bring about the group’s physical destruction in whole or in part,
  4. Imposing measures intended to prevent births, and
  5. Forcibly transferring children.

There is ample evidence of the Rohingyas being subjected to each of these heinous acts, and human rights groups are rigorously documenting the physical destruction and psychological torment being inflicted on the Rohingyas by Myanmar’s military now.

Not all labels are created equal. This is precisely why it is imperative to use the correct one. In the case of the Rohingya crisis, genocide is perhaps the only label that could give Myanmar’s government and military pause in their persecution, for fear of being tried at the ICC. As for inviting outside military intervention, the label of genocide shares the same risk as the label of ethnic cleansing. What ethnic cleansing does not provide is a legal implication, which is vital. 

Honduras’ presidential election is mired in controversy as the country’s Electoral Tribunal (TSE) suspended the release of results on Sunday night when president Juan Orlando Hernández was trailing left-wing candidate Salvador Nasralla by 5 percentage points, with 58.5% of polling stations counted. There is no precedent in Honduras for such a blackout on the release of election results and many observers are worried—with good reason—that electoral fraud might take place.

First, some context. Juan Orlando Hernández was barred from running for reelection. Honduras’ constitution is famous in Latin America for its repeated emphasis on presidential term limits. It says that any person who has held the office of the presidency cannot be president or vice president again. Moreover, it states that under no circumstance can the constitution be amended to allow for presidential re-election. In 2009, Juan Manuel Zelaya was removed from power by a Supreme Court ruling for organizing an illegal referendum on a constitutional amendment to allow for his reelection.

Then, things changed. In December 2012, the National Assembly—whose speaker at that time was Juan Orlando Hernández—sacked four justices of the Constitutional Court for voting down several government pet projects. In April 2015, the Constitutional Court—with four new justices—struck down the prohibition on presidential reelection claiming it violated human rights. This allowed Hernández to contest this year’s election, even though the popular legitimacy of his reelection bid was always contested.

As president, Hernández built a reputation of a strongman. With the strategic help of the Liberal Party, Hernández implemented much of his economic and security agenda in Congress. Crime has gone down significantly under his watch and public finances have improved. He also became a Washington favorite for his perceived collaboration in fighting drug trafficking. But there are also widespread concerns about his increasingly authoritarian rule and the control he exerts on otherwise independent institutions such as the Supreme Court and the TSE. Tax authorities are fond of harassing businesses and independent professionals.

Polls indicated that Hernández was going to win reelection comfortably. However, on election night Nasralla—who leads a coalition that includes Zelaya supporters—came ahead when the first results were reported. This did not stop Hernández from declaring himself the winner (Nasralla had done the same even before the TSE released the first results). Then came the blackout from the TSE. The head of the electoral body says that the results from rural polling stations cannot be reported until the votes are counted in the capital, (although such a thing did not happen in previous elections). Rumors—spread mostly by members of the ruling National Party—claim that Hernández has overcome Nasralla’s lead and will win by a small margin.

The stage is set for a political crisis. Nasralla’s supporters are already in the streets denouncing a fraud in the making. Their strategy all along was to denounce an electoral fraud if their candidate was defeated, no matter the margin. But now, they have good reason to suspect one. If Hernández is declared the winner, his legitimacy will be very questionable. Honduras could enter a very dangerous period.

President Trump has nominated Alex Azar to be the next Secretary of Health and Human Services. Azar will appear tomorrow for questioning before (and sermonizing by) members of the Senate’s Health, Education, Labor, and Pensions Committee.

Here are 14 questions I would ask Azar at his confirmation hearings.

  1. Is Congress a small business as that term is defined in the Affordable Care Act?
  2. Colette Briggs is a four-year-old girl with aggressive leukemia who is about to lose coverage for the one hospital within a hundred miles that can deliver her chemotherapy. She’s losing that coverage because insurance companies are fleeing the Exchanges. What do you plan to do, what can HHS do, about this problem?
  3. What will you do to prevent drug manufacturers from using the regulatory process to corner the market on certain drugs so they can gouge consumers and taxpayers?
  4. HHS already publishes data on Exchange premiums and insurer choice. Will you commit to publishing a review of the growing body of research showing Exchange coverage is getting worse for many expensive illnesses?
  5. Does HHS have an obligation to encourage young, healthy Americans to pay the hidden taxes contained in the ACA’s rising health insurance premiums?
  6. How will HHS increase its efforts to educate Americans about all their options for avoiding the mandate penalty?
  7. Short-term health insurance plans are an affordable alternative to increasingly costly Exchange coverage. Will you reinstate the 12-month policy term that existed before this year, and allow short-term plans to be guaranteed-renewable?
  8. The previous administration issued rules making it generally unlawful to purchase or switch Exchange plans for nine months out of the year. The Trump administration has restricted this freedom even more, making it generally unlawful for ten and a half months out of the year. Should consumers be free to purchase and switch health plans when they choose, just like any other product?
  9. Will you require insurance companies to repay the “reinsurance” subsidies the Government Accountability Office found the Obama administration illegally diverted to them?
  10. Will you press the Food and Drug Administration to allow the sale of birth-control pills over the counter, without a prescription?
  11. Medicare, Medicaid, and ObamaCare attempt to pay insurance companies according to the cost of each individual enrollee. If those complicated formulas really work, should government just give the money to the enrollees and let them control their health insurance and health care decisions?
  12. Is Obamacare’s Independent Payment Advisory Board constitutional? 

  13. Should seniors be able to opt out of Medicare without losing Social Security benefits?
  14. Will you end government encouragement of “abuse-deterrent” opioids, which have not reduced overdose deaths and are borderline unethical because some are literally formulated to hurt people?

The distribution effects of the Senate tax bill are examined in a Washington Post story. Reporter Heather Long looks at the bill’s Obamacare mandate repeal, based on a new Congressional Budget Office (CBO) study.

A table in the study appears to show, “The Senate Republican tax plan gives substantial tax cuts and benefits to Americans earning more than $100,000 a year, while the nation’s poorest would be worse off.”

But as Long notes,

The main reason the poor get hit so hard in the Senate GOP bill is because the poor would receive less government aid for health care….The CBO and JCT analyses make it seem as if a family is actually getting money taken away from them, but in reality, most of these families making under $30,000 don’t pay any income tax. The credits and subsidies they received to help them buy health insurance were typically sent directly from the government to the insurance company. So these families are unlikely to see any changes to their tax bills.

Along with the CBO table, Long presents a Joint Committee on Taxation (JCT) table sent to her by Senate GOP staff showing the tax bill’s effects without the Obamacare piece. This table indicates across-the-board tax cuts in the early years, but is in aggregate dollars with no context.

I add context in the table below. The first column shows current law individual and corporate income taxes in 2019, based on my estimates discussed here. (JCT does not post online current law income taxes for 2019). The second column shows the dollar cut amounts—without the Obamacare part—from the JCT/Washington Post table.

The third column shows the percentage cuts. Households at the bottom do not pay income taxes in aggregate, so they are “n/a.” Under the Senate tax plan in 2019, middle-income households would receive much larger percentage cuts than higher-income households.

Given the (unfortunate) political importance of distribution tables, the JCT should post a fuller and more neutral set of such tables online.

Border Patrol agent Rogelio Martinez, 36, was recently laid to rest after dying in the line of duty. The cause of his death is a mystery and the government has released few details. A spokesman for the FBI said that Martinez was “not fired upon” but Governor Greg Abbott (R-TX) said Martinez was killed in “an attack.” A spokesperson for the National Border Patrol Council, a government union that represents Border Patrol agents, said that Martinez may have been bludgeoned to death by rocks. Another source claims that Martinez may have perished because of injuries he sustained in a fall down a culvert. More information will hopefully come forward in the coming days and weeks to clear up this mystery. Martinez’s untimely death is a tragedy regardless of the actual cause.

Many politicians, including President Trump, cited Martinez’s death as a reason for a border wall and more spending on security, but policy should rarely (if ever) be changed as a result of single incidents like these. Instead, properly analyzed data about how many Border Patrol agents are murdered in the line of duty should be a starting point so that we can at least see how deadly the occupation actually is. This information is unreported in news stories on Martinez’s death and I couldn’t find it in an online search, so I estimated it from publicly available data. The government records all Border Patrol agent and Customs officer deaths in the line of duty. I went through the deaths since 2003 and excluded Customs officers. That left 33 Border Patrol agent deaths since the formation of Customs and Border Protection (CBP) in 2003 through November 19, 2017 (Table 1). More agents died in 2012 but 2004 had the highest rate of agent deaths at 0.028 percent of all Border Patrol agents or one out of every 3,606 agents on duty that year. From 2003 through 2017, the chance of a Border Patrol agent dying in the line of duty was about one in 7,968 per year.

Table 1

Border Patrol Agent Deaths Per Year

  Deaths Number of Agents Agents Per Death Percent Death 2003
















































































Source: Customs and Border Protection.

I determined the cause of death for each Border Patrol agent from the online blurbs on CBP’s website. About half of all agents who died on duty from 2003 through 2017 died in car accidents (Figure 1). About 15 percent died because of assault or murder and 18 percent due to other health-related accidents such as heart attacks or heat stroke. Most surprising, 12 percent died from drowning in accidents. I counted the death of Border Patrol agent Luis Aguilar as murder because a car driven by a suspected smuggler struck him. I counted the death of Border Patrol agent Nicholas D. Greenig as caused by a car accident because he struck a large animal with his patrol car. Agent Javier Vega Jr. was murdered while off duty but I counted his death as a result of murder because the CBP website records him as dying in the line of duty for this reason:

On September 20, 2016, it was determined that, in light of information identified during the intensive investigation completed by the Willacy County Sheriff’s Department, Agent Vega’s actions were indicative of his law enforcement training and that he instinctively reacted, placing himself in harm’s way to stop a criminal act and protect the lives of others. His death was later determined to have been in the line of duty.

Figure 1

Border Patrol Agent Cause of Death


Source: Customs and Border Protection.

On its surface, the death of agent Martinez seems to confirm the perception that Border Patrol agents have a dangerous job. But the danger of an occupation must be gauged in relation to the danger of other occupations or populations. About one in 7,968 Border Patrol agents died per year from 2003 through 2017. That compares favorably to all law enforcement officers who had a one in 3,924 chance of dying in the line of duty in 2011. Although incomplete data precludes an apples-to-apples comparison from 2003 through 2017, in 2011 the Border Patrol agent death rate was about one in 10,722 that year. In 2011, law enforcement officers were almost three times as likely to be killed in the line of duty as Border Patrol agents were. 

Car accidents account for about half of the deaths of Border Patrol agents during this time. Assuming that the number of 2016 and 2017 traffic fatalities across the United States are the same as they were in 2015, an American had about a one in 8,344 chance per year of dying in a traffic accident from 2003 through 2017. Border Patrol agents had a one in 16,434 annual chance of dying in a car accident from 2003 through 2017. In other words, Border Patrol agents were about half as likely to die in traffic accidents in the line of duty as Americans were in the course of their lives. A better form of this estimate would compare death rates per mile traveled but that information is not available for Border Patrol officers.

Including Rogelio Martinez, five Border Patrol agents have been murdered in the line of duty since 2003, which means their annual chance of being murdered in the line of duty is one in 52,589. More than 238,000 Americans have been murdered since 2003 with a nationwide death rate of one in 19,431 per year. Regular Americans are almost 3 times as likely to be murdered in any year from 2003 through 2017 than Border Patrol agents were.

Border Patrol agents volunteered for a job that routinely places them in danger but that heightened danger does not translate into a higher chance of being murdered or dying in a car accident, when compared to all Americans, or dying in the line of duty, when compared to other law enforcement officers. Border Patrol equipment, training, and support likely explain that. The death and possible murder of Border Patrol agent Rogelio Martinez is a tragedy but one that is thankfully rare.

Table 2

Border Patrol Agents, Cause of Death, and Year of Death, 2003-2017

Name Year Cause of Death Rogelio Martinez 2017 Assault/Murder Isaac Morales 2017 Assault/Murder David Gomez 2016 Accident (health) Manuel A. Alvarez 2016 Car Accident Jose D. Barraza 2016 Car Accident Tyler R. Robledo 2014 Car Accident Javier Vega, Jr. 2014 Assault/Murder Alexander I. Giannini 2014 Car Accident David R. Delaney 2012 Accident (health) Nicholas J. Ivie 2012 Assault/Murder Jeffrey Ramirez 2012 Accident (health) James R. Dominguez 2012 Car Accident Leopoldo Cavazos Jr. 2012 Car Accident Eduardo Rojas Jr. 2011 Car Accident Hector R. Clark 2011 Car Accident Brian A. Terry 2010 Assault/Murder Michael V. Gallagher 2010 Car Accident Mark F. Van Doren 2010 Car Accident Robert W. Rosas Jr. 2009 Assault/Murder Cruz C. McGuire 2009 Accident (health) Nathaniel A. Afolayan 2009 Accident (health) Jarod C. Dittman 2008 Car Accident Luis Aguilar 2008 Assault/Murder Eric Cabral 2007 Accident (health) Richard Goldstein 2007 Accident (drowning) David J. Tourscher 2007 Car Accident Ramon Nevarez Jr. 2007 Car Accident David N. Webb 2006 Car Accident Nicholas D. Greenig 2006 Car Accident George B. DeBates 2004 Car Accident Travis W. Attaway 2004 Accident (drowning) Jeremy M. Wilson 2004 Accident (drowning) James P. Epling 2003 Accident (drowning)

Source: Customs and Border Protection.

Barely two months in the post, “Lexington,” the new America columnist at the estimable British weekly, The Economist, has taken after America’s newest Supreme Court justice, Neil Gorsuch, over the speech Gorsuch gave 11 days ago before some 2,300 Federalist Society members and friends at the society’s 35th annual convention. Lexington’s title, “Conservative lawyers are among the president’s biggest enablers,” well captures its theme: “A movement dedicated to defending the constitution” will come to regret that it has enabled “a president who cares not a whit for legal philosophy.”

Yet the slim evidence Lexington adduces, outlined below, goes quite the other way. If “the reason many worry about the Federalist Society” is “because its influence is vast, brazen and part of a wider politicising of the last branch of American democracy to succumb to partisanship,” as Lexington avers, that worry is seriously misplaced. Indeed, the Federalist Society was created precisely to check the politicization of the courts that has gone on now for eight decades.

Ironically, toward the end of the piece, Lexington implicitly concedes that long-running politicization by citing Yale’s Bruce Ackerman as worrying that “the federal courts are heading for a period of ‘hyper-politicisation’ not seen since the 1930s.” That’s when Franklin Roosevelt threatened to pack the Supreme Court with six new members after it found several of his New Deal schemes to be unconstitutional. But at the same time, Lexington characterizes the founding of the Federalist Society in 1982 as “a riposte to the legal profession’s liberal mainstream”—as if that “mainstream” were not itself deeply politicized.

It was. Liberal New Deal justices had eviscerated constitutional limits on congressional power, reduced property rights and economic liberty to second-class status, and opened the floodgates to the modern administrative state where most law today is written. Then in the 1950s, liberal judges began finding rights nowhere to be found even among our unenumerated rights. That created a conservative backlash, but conservative justices addressed only the last of those problems, and unevenly at that. Their main concern was to oppose what they saw as liberal judicial “activism” with conservative judicial “restraint” and “deference” to the political branches. Inordinately concerned with judicial behavior—as opposed to the text itself—both sides were too often guilty of reading constitutional and statutory text through their respective political prisms.

It remained for later conservatives and especially libertarians to shift the focus from judicial behavior to legal texts in their full reaches and as originally understood—and nowhere has that evolution been more cultivated and apparent than through the many public programs of the Federalist Society. Yet Lexington takes exception to Justice Gorsuch’s “triumphalist tone”—as if the restoration of originalism and textualism were not to be celebrated—while criticizing the Federalist Society’s “project” of staffing the courts with originalist judges. “It represents an assault on the courts’ already-tested consensual traditions,” Lexington writes, for “the federal courts look stronger for including a range of legal philosophies.”

Think about that. The courts look stronger if they include judges who read the text as it was meant to be read and judges who read it as it was not meant to be read. Thus the courts’ “already-tested consensual traditions.”

Lexington’s one substantive point, drawn from Justice Gorsuch’s speech, concerns the justice’s “boldness” in signaling a legal agenda he means to pursue. He would curtail “the federal bureaucracy’s power to interpret statutes,” Lexington writes, unlike Antonin Scalia, the originalist he succeeded, who “deferred to the executive.” And that augurs “a more activist approach.”

But isn’t that precisely what Lexington wants—an “engaged” justice to check a run-amok president (and legislature), a justice who reads the law as written, not through a political lens? It’s not true that Justice Scalia “deferred to the executive” in any wholesale way. It is true, however, that our courts, in the main, have long been entirely too deferential to the statutory interpretations of administrative agencies.

Before he died, Justice Scalia had begun rethinking some of his earlier administrative law positions. If Justice Gorsuch follows that path, along with others President Trump may put on the bench from among those the Federalist Society has brought to his notice, Lexington need have no worry about America’s politicized courts. They will check this president and others who follow if they try to rule “by pen and phone.” And they will be on their way to recovery as the non-political branch the Framers intended them to be.