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For many years, Violet Dock Port had owned and operated a docking facility that stretched along a mile of the Mississippi River in St. Bernard Parish, Louisiana. As a private business, Violet was in economic competition with the local Port Authority, which also owns and operates riverfront property.

In 2007, the Port Authority took an interest in Violet’s land and tried to negotiate a purchase, but those negotiations failed. If this had been a normal negotiation between two private market participants, the Port Authority would have had only two options at that point: improve its offer or walk away. But instead it decided to appeal to its status as a public agency and claim that it required Violet’s land for “public use.” Invoking Louisiana’s eminent domain power to complete the deal by force, the Port Authority took over Violet’s business and eliminated its competition.

Violet has challenged this taking in state court, and the case has now reached the Louisiana Supreme Court. Cato has joined the National Federation of Independent Business Small Business Legal Center, Southeastern Legal Foundation, and Louisiana Association of Business and Industry on an amicus brief urging the state supreme court to strike down this taking under both the federal and Louisiana constitutions.

Under both constitutions, private property can only be taken by eminent domain if it is for a true public use. But a taking that is solely for the purpose of eliminating private competition is not a legitimate “public use.” There is nothing public-minded about destroying a private-sector business for the benefit of a public enterprise, and no reason to believe that such an agglomeration will help consumers or the economy. Indeed, the state’s economic arguments are dangerously broad because they could apply just as much to a private company that wished to eliminate competition.

Allowing this taking to stand would incentivize politically powerful corporate interests to lobby for the forcible transfer of property from smaller firms—solely for the purpose of eliminating competition.

Beyond the issue of “public use,” the Louisiana Constitution also specifically speaks to exactly what happened here. It declares that “no business enterprise or any of its assets shall be taken for the purpose of operating that enterprise or halting competition with a government enterprise.” The lower court implausibly interpreted this clause to not apply to the Port Authority because of a separate clause granting general eminent domain power to public ports. But as we point out in our brief, that ignores the core interpretive principle that the specific takes precedence over the general.

The lower court’s reasoning could effectively write an important property protection out of the state constitution entirely, by subordinating it to every general grant of government authority. For each of these reasons, the Louisiana Supreme Court should reverse the lower court in St. Bernard Port & Terminal District v. Violet Dock Port, Inc. and reject this taking.

If the port authority wants to make a deal with its competitors, it should do so the old fashioned way: by making them an offer they can refuse.

The situation is grim. Dangerous foreigners are streaming into the United States, killing and abducting innocent Americans. They depress the wages of American workers and hurt American businesses. Something must be done about these invaders!

Is this another warning from Donald Trump? Another column by Sean Hannity? The conclusion of another paper from the Center for Immigration Studies?

Nope, it’s a paraphrase of warnings from politicians, unions, and major newspapers from a century ago, about the dangers of Chinese immigrants and other “Asiatics,” as well as the businesses they opened, especially “chop suey houses.” These warnings would be comical if they weren’t so abhorrent.

Consider this, from the Chicago Tribune:

More than 300 Chicago white girls have sacrificed themselves to the influence of the chop suey “joints” during the last year, according to police statistics. … Vanity and the desire for showy clothes led to their downfall, it is declared. It was accomplished only after they smoked and drank in the chop suey restaurants and permitted themselves to be hypnotized by the dreamy, seductive music that is always on tap.

Or this, from the Mixer and Server, a publication of the Cooks’ and Waiters’ Union, an ancestor of today’s UNITE HERE:

View this matter from every angle, without heat or racial prejudice, and the fact stares us in the face that there is a conflict between the American wage-earner and the workers or employers from the Orient. Our Government has been compelled to close its doors to Asiatics in recognition of this fact.

Or this resolution from one of the forerunners of the AFL-CIO:

WHEREAS the evils arising from the employment of white women and girls in establishments owned or controlled by Chinese and Japanese constitute, both morally and economically, a serious menace to society; therefore be it

RESOLVED, That the American Federation of Labor be requested to pledge its best endeavors to secure the passage of a law prohibiting the employment of white women or girls in all such establishments.

Those quotations are from “The ‘War’ Against Chinese Restaurants,” a paper by UC-Davis law professor Gabriel J. “Jack” Chin and attorney John Ormonde that is the cover story of the summer issue of Cato’s Regulation. (A longer version of the paper is forthcoming in the Duke Law Journal.) The article is filled with other shocking warnings, as well as inspiring responses from that era’s defenders of mobility and economic freedom.

The Chinese Restaurant War was driven by nationalism and bigotry. That war echoes today, of course, as Chin and Ormonde note in their conclusion:

Back in 2015, Steve Bannon, now a top White House official, had a special guest on his radio program: Donald J. Trump. Trump spoke of his concern about immigration but added, “You know, we have to keep our talented people in this country.” Bannon disagreed, saying: “When two-thirds or three-quarters of the CEOs in Silicon Valley are from South Asia or from Asia, I think… . A country is more than an economy. We’re a civic society.” In saying this, Bannon wildly overestimated the percentage of Silicon Valley professionals of Asian descent. More importantly, he repeated an old belief: that only white citizens should be a part of this nation’s civic society.

As a wave of Islamist terror attacks sweep across Europe, London police urge people to “run, hide, tell”. The Czech Republic’s response? Fight back.

The Czech parliament is working to liberalize the country’s gun laws, allowing people to better defend themselves. The reason for this new policy is safety, as well as practicality; in light of recent attacks in neighboring countries, the Czech government recognizes that disarming people puts them in danger, and that broad European gun control policies are ineffective. The Interior Minister said it best when he asked parliament to “show [him] a single terrorist attack in Europe perpetrated using a legally-owned weapon”.

In contrast, the European Union’s answer to terror is as counterintuitive as it is feckless. France has spearheaded efforts to ban all “military-style” rifles – AR and AK-style rifles, not to be confused with those capable of automatic fire, commonly referred to as “machine guns” – from Europe. As my colleague Dan Mitchell has noted, the EU is violating its own commitment to state sovereignty in favor of radical, unsuccessful gun prohibition.

Despite strict gun control in France, Islamic radicals were still able to obtain rifles and kill 17 people in the Charlie Hebdo attack of 2015. More recently, in places like Nice and London, terrorists have worked around gun restrictions by using trucks and other vehicles to kill civilians.

The Czech Republic, which already boasts 800,000 registered firearms and 300,000 licensed gun owners, is taking proactive steps to avoid their citizens becoming victims without a means of defending themselves. The new measure is a protest against the self-destructive dogma of European gun control and in favor of civil liberties and self-empowerment.  

If the rest of Europe followed the Czech Republic’s example, civilians would be able to defend themselves – whether against terrorism or “normal” crime – instead of depending on police and other government agents, which typically arrive far too late if at all.

Earlier this week, the D.C. Circuit court issued a surprising decision in Lucia v. SEC. The case addresses whether administrative law judges (ALJs) are “inferior officers” and are therefore subject to the appointments clause. But the heart of the case is far less wonky than it seems. The question is really this: what makes a judge a judge? If a person has the power to ruin a company, bankrupt a person, force the person to give up a lifelong profession, and bar the individual from interacting with friends and former colleagues, and if the person does this wearing a black robe and sitting amidst the trappings of court of law, is that person an officer? Because ALJs do all of this and more. Their decisions about whether evidence is admissible and their determinations about whether a witness is lying have a profound effect not only on the hearings over which they preside, but over any subsequent appeal. If this much authority and discretion are not enough, what on earth is?

It seems the judges, who sat en banc to hear the case (a rare occurrence, signaling a case of particular import), could not agree. They split right down the middle and deadlocked. The earlier decision will stand…for now. The case is almost assuredly bound for the Supreme Court. But until the High Court takes it up (and while it seems this is the sort of case they would take, there are no guarantees on that front), the D.C. Circuit’s earlier ruling, finding that ALJs are not inferior officers but “mere employees” will stand.

Aside from the absurdity of stating that individuals with so much authority are “mere employees,” the earlier ruling is problematic for the simple reason that it relies on a poorly reasoned ruling of an earlier case by the same court. In Landry v. FDIC, the D.C. Circuit considered the role of ALJs at the FDIC and found they were simply employees because their decisions were not final; they were final only when issued by the FDIC itself. Similarly, ALJs at the SEC issue “initial,” not “final” decisions. 

It seems odd that an individual could perform almost all the same tasks a federal judge does, and yet because there is the possibility that the full commission could review and overturn the “initial” decision, that individual lacks the discretion of even an inferior officer. It also seems I am not alone in my opinion. The D.C. Circuit expressly stated its interest in revisiting Landry when it agreed to hear Lucia en banc. Unfortunately, my opinion seems to be shared with only an even half of the sitting judges in this Circuit. We will simply have to wait to see what the Justices up the way make of it. 

The New York Police Department’s Civilian Complaint Review Board (CCRB) reported that over a three-year period, NYPD officers threatened, blocked, and otherwise tried to prevent individuals from recording them in public in the performance of their duties. Almost 100 of the 346 allegations made between 2014 and 2016 were substantiated by the board, not counting the many cases that may not have been reported.

To be fair, there are many thousands of contacts between police and individuals that happen in New York City. Although there is no way to know how many of those interactions are recorded, it’s fair to assume that many of them have been as cell-phone recording capabilities have become ubiquitous. However, there is clearly a segment of officers—perhaps very small, but nevertheless real—who feel that they may violate the First Amendment rights of people who record them. To alleviate this, the CCRB suggested that a new entry should be included in the Patrol Manual to reassert the public’s right to record police interactions. That insertion is fine, but more could and should be done because it is extremely unlikely that every officer who disrupted lawful, public recording was ignorant of the right to do so. Any officer who already knew the law was committing misconduct.

Police officers should be held accountable for their actions. Unfortunately, New York State law prohibits the Department or the CCRB from releasing the names of officers who have complaints lodged against them, whether or not they are sustained, or what the outcomes of any disciplinary actions taken were short of termination. As I testified before the U.S. Commission on Civil Rights in 2015:

According to an investigation of New York City’s Civilian Complaint Review Board records, about 40 percent of the 35,000 NYPD officers have never received a civilian complaint, but roughly 1,000 officers have more than 10 complaints on file. One officer has over 50 complaints but retains his position.

Institutionally, the NYPD knows these 1,000 officers are repeat offenders several times over. Multiple complaints against a single officer over a period of months or years implies the officer must, at times, operate too close to the line of impropriety. Those 1,000 officers represent fewer than three percent of NYPD officers but can damage the reputation of the rest of the department. Clearly, some portion of these 1,000 officers are abusing their authority, and the NYPD is unwilling or unable to remove these officers from duty. And because the public can’t know their names and records, we cannot measure how effectively the NYPD addressed these incidents with any given officer. (internal citations omitted)

The lack of transparency is not limited to New York, by any means, but the NYPD’s institutional dedication to data collection at least gives us a glimpse of what is going on. Getting the right to record in the Patrol Manual is be a good start, but the State of New York should repeal the anonymity granted to misbehaving officers. Such laws punish the best officers by making them indistinguishable from those who intentionally—and sometimes repeatedly—violate the rights of the people they are supposed to serve.

For a robust First Amendment analysis of the right to record, read this opinion by 2014 B. Kenneth Simon Lecturer Judge Diane Sykes. You can read my 2015 USCCR testimony on police transparency and the use of force here. Finally, you can check out the 2014 panel we hosted on recording the police here.

 

In a recent Washington Post op-ed, U.S. Attorney General Jeff Sessions makes numerous misleading claims about the U.S. War on Drugs and the appropriate role of the federal government in combatting drug crime. The premise of his argument is that drug trafficking is an intrinsically violent and crime-inducing activity, so the only way to make our communities safe is by adopting a tougher, heavy-handed approach to drug crime.

However, many of the facts and statistics that the Attorney General uses to support his arguments are distorted, misguided, or flat out incorrect. Sessions paints a false narrative of drug trafficking in America, and he mistakenly assumes that weak drug law enforcement has spurred violent crime. Let’s analyze his statements one by one. 

  •  “Drug trafficking is an inherently violent business. If you want to collect a drug debt, you can’t, and don’t, file a lawsuit in court. You collect it by the barrel of a gun.” Correct. But only because drugs are illegal! Prohibition forces drug production and distribution underground, so standard dispute resolution uses violence rather than courts. The solution is trivial: legalize drugs. 
  • “For the approximately 52,000 Americans who died of a drug overdose in 2015, drug trafficking was a deadly business.”  Drug overdoses indeed claimed 52,000 lives in 2015, according to the CDC, but most of these involved non-prohibited drugs, such as prescription painkillers.. In addition, Sessions confuses drug overdoses with drug trafficking. The majority of the 52,000 overdose deaths had nothing to do with drug smuggling or drug crime; rather, they were instances in which someone accidentally consumed too much of an opioid. That occurs far more under prohibition, when information about purity and quality are scarce, than in a legal market. 
  • “Yet in 2013, subject to limited exceptions, the Justice Department ordered federal prosecutors not to include in charging documents the amount of drugs being dealt when the actual amount was large enough to trigger a mandatory minimum sentence. Prosecutors were required to leave out objective facts in order to achieve sentences lighter than required by law. This was billed as an effort to curb mass incarceration of low-level offenders, but in reality it covered offenders apprehended with large quantities of dangerous drugs. The result was that federal drug prosecutions went down dramatically — from 2011 to 2016, federal prosecutions fell by 23 percent.” Sessions states that total federal prosecutions fell dramatically between 2011 and 2016, but he fails to mention that federal drug prosecutions actually remained constant (32%) as a share of all prosecutions during that time period. The natural interpretation is therefore that federal prosecution became less aggressively generally; not that attention to drug enforcement declined disproportionately. 
  • “Meanwhile, the average sentence length for a convicted federal drug offender decreased 18 percent from 2009 to 2016.” The correct number is closer to 15 percent. 
  • “Before that policy change, the violent crime rate in the United States had fallen steadily for two decades, reaching half of what it was in 1991. Within one year after the Justice Department softened its approach to drug offenders, the trend of decreasing violent crime reversed.” National violent crime has fallen precipitously since peaking in the early 1990s, and violent crime indeed ticked up in 2015. But Sessions conveniently forgets that in 2012—right before the policy change supposedly went into place—violent crime rates actually increased. Violent crime rates then fell steadily in 2013 and 2014, the two years immediately after the Justice Department’s policy change. In 2015, violent crime edged up by 3.9 percent, but it’s too early to tell if this represents a reversing trend or just one of the numerous ups-and-downs observed since 1990. 
  • “In 2015, the United States suffered the largest single-year increase in the overall violent crime rate since 1991. And while defenders of the 2013 policy change point out that crime rates remain low compared with where they were 30 years ago, they neglect to recognize a disturbing trend that could reverse decades of progress: Violent crime is rising across the country. According to data from the FBI, there were more than 15,000 murders in the United States in 2015, representing a single-year increase of nearly 11 percent across the country. That was the largest increase since 1971.” These facts are all correct. But again, one year of data is not even remotely enough to demonstrate a change in trend. Ups and downs in the crime rate happen regularly. And even if crime rates were slightly on the rise, where is the evidence that this is connected to fewer drug convictions? Many other factors are plausibly at play. 
  • “Defenders of the status quo perpetuate the false story that federal prisons are filled with low-level, nonviolent drug offenders. The truth is less than 3 percent of federal offenders sentenced to imprisonment in 2016 were convicted of simple possession.”  Sessions conflates “low-level, nonviolent drug offenders” with those “convicted of simple possession.”  Nearly half of the nation’s roughly 200,000 federal inmates are imprisoned on drug-related charges.  Sessions is right that hardly any of these charges are for mere possession.  But drug trafficking encompasses activities as benign as selling a few grams of marijuana on the street corner. 35% of drug offenders sentenced in federal prison had no or minimal criminal history beforehand, according to a recent report by the Bureau of Justice Statistics. And 76% of drug offenders serving time did not use a weapon in their most recent offense. 
  • “The truth is that while the federal government softened its approach to drug enforcement, drug abuse and violent crime surged. The availability of dangerous drugs is up, the price has dropped and the purity is at dangerously high levels.” Rising drug availability, declines in prices, and rising purity levels have been trends since long before the Obama policy changes. For example, the cost of heroin has fallen by over 70 percent since the early 1990s. The same pattern is true for other drugs. There is no evidence that the federal government’s change in policy had any discernable impact on drug prices, availability, or purity. 
  • “Overdose deaths from opioids have nearly tripled since 2002. Overdose deaths involving synthetic opioids rose an astonishing 73 percent in 2015.” It is true that opioid overdose deaths have risen nearly threefold since 2002 – which demonstrates that rising drug availability and potency are trends that far predate Obama-era policy changes! 

In Prince William County, Virginia, just south of Washington, the board of supervisors is about to decide whether to issue $35 million in bonds to build a new baseball stadium for the Potomac Nationals, a Class A affiliate of the Washington Nationals. The board just rejected a proposal to let the taxpayers vote on the issue.

Art Silber, the retired banker who put up $300,000 to buy the team in 1990, estimates that it’s now worth $15 to $25 million. But

“Right now, we have the worst ballpark in the league and one that probably ranks in the bottom 10 of organized baseball’s 160,” he said. “At the new ballpark, the visibility will be extraordinary. Naming rights alone will pay for a lot of the stadium.”

He can only imagine what the team will be worth.

Seems like an excellent profit opportunity for a business worth tens of millions of dollars. But he has a better plan: If the county doesn’t pony up, he will sell the team, and new owners will move it.

The county found a consulting firm to produce, as it has done for many governments, an optimistic economic analysis: It suggests that a new stadium would generate 288 jobs, $175 million in economic impact, and $4.9 million in tax revenue over a 30-year lease. Similar studies have proven wildly optimistic in the past. In 2008 the Washington Post reported that Washington Nationals attendance had fallen far short of what a 2005 study predicted. As Dennis Coates and Brad Humphreys wrote in a 2004 Cato study criticizing the proposed Nationals stadium subsidy, “The wonder is that anyone finds such figures credible.”

Academic studies have consistently found few if any economic benefits of subsidies for stadiums, arenas, convention centers, and the like.     

Several Cato studies over the years have looked at the absurd economic claims of stadium advocates. In “Sports Pork: The Costly Relationship between Major League Sports and Government,” Raymond Keating finds:

The lone beneficiaries of sports subsidies are team owners and players. The existence of what economists call the “substitution effect” (in terms of the stadium game, leisure dollars will be spent one way or another whether a stadium exists or not), the dubiousness of the Keynesian multiplier, the offsetting impact of a negative multiplier, the inefficiency of government, and the negatives of higher taxes all argue against government sports subsidies. Indeed, the results of studies on changes in the economy resulting from the presence of stadiums, arenas, and sports teams show no positive economic impact from professional sports – or a possible negative effect.

In Regulation magazine (.pdf), Dennis Coates and Brad Humphreys found that the economic literature on stadium subsidies comes to consistent conclusions:

The evidence suggests that attracting a professional sports franchise to a city and building that franchise a new stadium or arena will have no effect on the growth rate of real per capita income and may reduce the level of real per capita income in that city.

And in “Caught Stealing: Debunking the Economic Case for D.C. Baseball,” Coates and Humphreys looked specifically at the economics of the new baseball stadium in Washington, D.C., and found similar results:

Our conclusion, and that of nearly all academic economists studying this issue, is that professional sports generally have little, if any, positive effect on a city’s economy. The net economic impact of professional sports in Washington, D.C., and the 36 other cities that hosted professional sports teams over nearly 30 years, was a reduction in real per capita income over the entire metropolitan area.

In an updated study from the Mercatus Center at George Mason University, Humphreys finds similar results:

  • Professional sports can have some impact on the economy. Looking at all the sports variables, including presence of franchises, arrival and departure of clubs in a metropolitan area, and stadium and arena construction, the study finds that the presence of a franchise is a statistically significant factor in explaining personal income per capita, wage and salary disbursements, and wages per job.
  • But this impact tends to be negative. Individual coefficients, such as stadium or arena construction, sometimes have no impact, but frequently indicate harmful effects of sports on per capita income, wage and salary disbursements, and wages per job.

Another Mercatus study by Michael Farren offers a detailed analysis of stadium upgrades and attendance in minor league baseball.

Silber and the board of supervisors want the taxpayers to know that this time is different; their $35 million bond issue isn’t a government giveaway:

In Prince William, the board of supervisors is considering a proposal in which it would use bond money to build the stadium. The team would then reimburse the county the entire cost over the course of a 30-year lease.

“We’ve all read about certain professional sports teams threatening to leave if a local government doesn’t buy them a new stadium. The exact opposite is happening here,” said Tom Sebastian, a senior vice president with JBG. “The Potomac Nationals have agreed to pay 100 percent of the cost to construct a new stadium so that they can stay in Prince William County.”

I will gladly pay you Tuesday, 30 years from now, for a hamburger today.

Americans for Prosperity has been fighting this proposal, and its Northern Virginia director, Tyler Muench, addressed that claim in a Washington Post column:

Professional sports teams have been relocating to new cities when they fail to acquire public funding for stadiums. Last year, the Rams stuck St. Louis with a $144 million bill after the team decided to move to Los Angeles. And earlier this year, San Diego taxpayers were left with a $50 million tab after the Chargers joined the Rams in L.A.

This time around is no different. The Oakland Raiders’ move to Las Vegas will leave Oakland taxpayers stuck with a $163 million bill. Teams constantly ask taxpayers for handouts despite generating vast revenues. Billionaire owners get publicly financed stadiums and the working-class citizens pick up the tab — corporate welfare at its worst.

We’ve heard a lot of denunciations of corporate welfare and crony capitalism from Republicans lately. The Prince William board of supervisors has 6 Republicans and 2 Democrats. Board chair Corey Stewart, who just narrowly lost a primary for governor in which he aligned himself closely with President Trump, has supported the stadium deal. Here’s a chance for Republicans in Virginia to show that they stand for fiscal conservatism and free markets, not taxpayer handouts to the wealthy. Who wants to bet that they will? 

For one last bit of piling on, this report by Don Bauder in the San Diego Reader is worth quoting at length:

Would you take advice from a gaggle of consultants whose forecasts in the past two decades have been off by 50 percent?

Of course you wouldn’t. But all around the U.S., politicians, civic planners, and particularly business executives have been following the advice of self-professed experts who invariably tell clients to build a convention center or expand an existing one.

A remarkable new book, Convention Center Follies: Politics, Power, and Public Investment in American Cities, published by the University of Pennsylvania Press, tells the amazing story of how one American city after another builds into a massive glut of convention-center space, even though the industry itself warns its centers that the resultant price-slashing will worsen current woes.

The author is Heywood Sanders, the nation’s ranking expert on convention centers, who warned of the billowing glut in a seminal study for the Brookings Institution back in 2005. In this new, heavily footnoted, 514-page book, Sanders, a professor of public administration at the University of Texas/San Antonio, exhaustively examines consultants’ forecasts in more than 50 cities.

Nashville was told its new center would result in 466,950 hotel room nights; it’s getting around 267,000 — “a little better than half [what was projected],” says Sanders in an interview. Philadelphia isn’t garnering even half the business that was promised.

“Getting half the business [that was projected] is about the norm,” says Sanders. “The actual performance is a fraction of what it is supposed to be.”

Yet, in city after city — including San Diego — self-appointed civic leaders listen to and act on these faulty forecasts. In almost all cases, mainstream media and politicians swallow the predictions whole without checking the consultants’ miserable track records….

How can convention centers get away with such legerdemain? Those in the know shut up, and the press, politicians, and public have neither the time nor the expertise to follow the prestidigitation.

How do the consultants get away with being 50 percent wrong most of the time? In my opinion — not Sanders’s — consultants in many fields are paid to provide answers that the people paying the consultants’ bills want to hear. And the people paying those bills are the business community — using taxpayers’ money, of course.

The worst news: “These expansions will keep happening,” as long as “you have a mayor who says it is free,” says Sanders.

More, much more, in the Reader and of course in the book.

One anecdote does not constitute evidence; and I cannot vouch for the accuracy of the story below.  But the information in the email, reprinted with the sender’s permission, is nevertheless suggestive:

Dear Professor:

I wasn’t sure to whom I should write, so please pass this along to an economics colleague who specializes in health care costs.

My husband, a man with a BMI of over 40 (a lifelong—since babyhood—“issue”), is currently working as a limousine driver for a commercial carrier regulated by FMCSA [the Federal Motor Carrier Safety Administration]. In October FMCSA’s Medical Review Board developed new regulations for drivers’ medical evaluations which occur every two years. They are that anyone with a BMI of 40 or more or a BMI of 33–39 with 3 of 11 risk factors (of which 2 are being male and over age 42) be referred for screening for obstructive sleep apnea regardless of whether they show any symptoms of it other than sleepiness while driving. (As my husband pointed out to one of the approved medical examiners at his exam a couple of years back, anyone who answers the question, “Have you ever driven while tired?” with a ‘No’ is lying—there isn’t anyone over the age of 18 who hasn’t driven late at night, in the wee hours of the morning, on a long road trip or to and from work/study after a long day or pulling an all-nighter without feeling tired; since he gets to sleep during the March–October busy season for 1–4 hours at a time, yes, he is tired.)

The salient statistics and facts: According to one organization, 53.2% of FMCSA’s approximately 4 million drivers have a BMI which will fit into the damned-near instant referral for screening. Here in Rhode Island screening costs between $190-$500 we have discovered over the last 2 years. The Medical Review Board’s recommendations note that a negative result is meaningless (essentially), so theoretically, around 2 million people will be referred for a $200 test every 2 years. That’s a “preventive health care” cost of $200 million per year!

Isn’t the point of “preventive health care” to save money? … [T]his “prevention” is penalizing a sizeable (no pun intended) minority … and wasting a lot of health care dollars on testing and treatments which do nothing to make anyone healthier.

For more systematic evidence on whether preventive care is cost-effective, see here.

My colleagues from the School Choice Demonstration Project and I just released the official third year reports on the Louisiana Scholarship Program (LSP). In addition to the experimental study on student test scores, my coauthors and I released a descriptive analysis of the types of private schools that chose to participate in the voucher program.

Positive Test Score Trend

The main report indicates that the LSP had negative impacts on student math test scores for the first two years of the program. Nonetheless, the program did not have any statistically significant impacts on student achievement by the end of year three. These results can be found in Figure 1 (from the report) below:

Source: Mills & Wolf (2017). “How Has the Louisiana Scholarship Program Affected Students? A Comprehensive Summary of Effects After Three Years.” School Choice Demonstration Project, Department of Education Reform, University of Arkansas.

This upward trend is not unusual. The recent meta-analysis of 19 experimental voucher studies shows that private school choice programs are better at shaping test scores after a few years. This is likely because children need to adjust to their new educational settings and private institutions must respond to the environmental shift in the market for schooling.

The positive test score trend was also found in the Indiana study, and can be interpreted in two different ways:

  1. Private schools in voucher programs adjust and improve after a few years of participation.
  2. The incentive structure for private schools shifts from a focus on character education towards a focus on test scores since the state uses test scores as its preferred educational accountability measure.

Obviously, the second explanation is less optimistic since test scores do not necessarily convert to the long-run outcomes that we actually care about.

Regulation Reduces School Quality

In the final report, we examine the difference in the types of schools that decide to participate in the DC, Indiana, and Louisiana voucher programs. As shown in Figure 2 below, we find that only a third of the private schools in Louisiana decide to participate in their program, while between 70-78% participate in DC and Indiana.

This is likely because the LSP has the strongest regulatory environment and, therefore, the greatest costs associated with participation. Private schools participating in the program must serve the most disadvantaged students, use the state standardized test, prohibit parental copay, report finances to the government, and surrender their admissions process over to the state.

We find that the schools that are willing to put up with all of the additional costs are the ones most desperate for funding. Using enrollment, tuition, and revenue levels as proxies, we find that lower quality institutions choose to participate in the LSP. Consequently, the LSP experiment can only measure the effects of being randomly assigned to one of the lower-quality private schools in the state.

Of course, decision-makers impose regulations on private schools in an effort to make it impossible for disadvantaged families to make bad choices. However, the very act of attempting to control quality ironically leads to a reduction in the quality of educational options available to children in need. Instead, policy-makers ought to be more confident in the decision-making abilities of the people most interested in the educational success of their children: parents.

The U.S. House of Representatives will vote this week on the “No Sanctuary for Criminals Act” (H.R. 3003). The bill’s primary purpose is to threaten and punish cities and states that fail to do the bidding of federal immigration agents. It would also make it more difficult to hold state and local officers accountable for violations of the Constitution committed pursuant to federal commands.  

H.R. 3003 would impose mandates on states

The heart of the No Sanctuary for Criminals Act would prohibit any policies that restrict state or local law enforcement officials from “assisting or cooperating with Federal law enforcement entities, officials, or other personnel regarding the enforcement of” immigration laws (pp. 2-3). It would also ban restrictions on collecting people’s immigration status, reporting them to the federal government, or complying with requests for that information from the federal government.

These provisions purport to remove the authority of state or local police departments or state or local legislatures to determine how their law enforcement resources are used. This violates a basic principle of federalism, which many conservatives have long championed, that the federal government should leave states to experiment with their own policies. I wonder whether Republican members of Congress would still support this legislation if they could imagine Democrats applying this same principle to federal gun laws in the future.

H.R. 3003 would attempt to compel compliance with federal grants

Supreme Court precedent suggests that Congress cannot actually enforce such a ban on state or local policies. Perhaps with this in mind, the bill attempts to enforce “compliance” with its possibly unconstitutional mandates by imposing monetary penalties. It would strip any non-compliant state or locality of any “grant administered by the Department of Justice or the Department of Homeland Security that is substantially related to law enforcement, terrorism, national security, immigration, or naturalization” (pp. 3-4).

The Supreme Court has held that there are limits to this type of federal coercion of states, but it’s still unclear where exactly those limits are. My colleague Trevor Burrus has written about the constitutional issues here with regard to a similar proposal a few years ago. As he wrote then:

The absolute monetary size of the grant certainly has something to do with coercion, but other factors can be taken into account… . Therefore, it is legitimate to look not just to the size of the grants, but to the type of grants used to induce states into not passing [“sanctuary” laws]. Highway funding is one thing, but national security, law enforcement, and FEMA grants are entirely different.

Regardless of its constitutionality, however, the important issue here is that this type of heavy-handed approach to federal-state relations is at odds with federalist principles and many years of conservative and Republican rhetoric. Federalism is an important safeguard for liberty, and in its exuberance to obtain a certain policy result, Congress should not lose sight of this principle.

H.R. 3003 would deny state sovereignty

The legislation, however, would go even further. It would allow a private right of action against states by any individual or immediate family member of an individual who is a victim of a felony committed by an immigrant released from state or local custody against the wishes of the federal government (pp. 10-11). This could also run afoul of the Constitution because the Supreme Court has held that the federal government cannot abrogate state sovereign immunity in certain limited circumstances, such as to protect rights guaranteed by the 14th Amendment.

Regardless of the constitutionality, this provision is another incredible overreach, attempting to threaten states into following the bidding of the federal government on immigration. While the bill requires that the victims bring the claim within 10 years of the offense, there is no restriction at all on how long after the release of the person they may bring the claim. Indeed, nothing in the bill prevents a state from being subject to a lawsuit by a victim of a person released in 2017 who commits a crime in 2057.

Most importantly, states simply should not be liable for crimes committed by unauthorized immigrants that they release if they have no reason to believe that they are a threat. Each level of government only has so many resources. Requiring them to use those resources in ways that the federal government wants is wrong. If Congress bullies states or localities into spending their limited resources on locking up nonviolent immigrants and a violent felon gets away or must be released as a result, should the federal government be held liable for the consequences?

H.R. 3003 would prevent states from obtaining justice for crime victims and limit accountability for state constitutional violations

Finally, there is a provision that bans the federal government from transferring a person for prosecution to a state or locality deemed in violation of the mandates under the law (pp. 4-5). I don’t have a problem with not transferring every immigrant prisoner—I supported exercising such discretion in a prior post in certain cases—but an outright prohibition is wrong. It automatically denies these states or localities the ability to obtain justice for victims of crimes in their jurisdiction without any type of individualized evaluation. Even if you think that non-compliant states or localities should be punished, such an automatic denial of justice for victims is wrong. Should a murderer escape justice simply because the state refuses to hold non-felon unauthorized immigrants for the federal authorities?

The bill would also prohibit lawsuits against state and local officials who violate individuals’ constitutional rights by holding them at the request of the federal government. The bill would deem the officials to have acted on behalf of the United States and require all lawsuits to name the United States as the defendant (pp. 8-9). In several cases, courts have found that holding immigrants pursuant to a detainer can violate their constitutional rights. In one case, a U.S. citizen brought a case against a county in Pennsylvania for detaining him wrongfully, and the Third Circuit Court of Appeals found that localities had no obligation to hold a person on behalf of the federal government and that they could be found liable. The county settled for $95,000. There are several other cases of this kind.

This limitation on liability appears intended to obstruct local and state accountability for constitutional violations. How is that possibly a “conservative” idea?

The bill would exacerbate this problem by simultaneously allowing states a much longer period of detention without charges. The current Trump administration detainer form specifies that a person cannot be held for more than 48 hours. H.R. 3003 would allow states and localities to maintain custody in some circumstances for twice as long (p. 8).

If I was Captain Ahab in a Herman Melville novel, my Moby Dick would be the Organization for Economic Cooperation and Development. I have spent more than 15 years fighting that Paris-based bureaucracy. Even to the point that the OECD threatened to throw me in a Mexican jail.

So when I had a chance earlier today to comment on the OECD’s statist agenda, I could barely contain myself

Notwithstanding the glitch at the beginning (the perils of a producer talking in my ear), I greatly enjoyed the opportunity to castigate the OECD.

Indeed, returning to my Moby Dick analogy, I’m increasingly hopeful that the harpoons I keep throwing at the OECD may finally draw some blood.

In his budget, President Trump has proposed to cut overall spending for international organizations. And we’re talking about a real budget cut, not the phony kind of cut where spending merely grows at a slightly slower rate.

The budget doesn’t specify funding levels for the various bureaucracies, but various Administration officials have told me that their goal is to completely defund the Paris-based bureaucracy.

To quote Chris Matthews, this definitely sends a thrill up my leg.

But I’m trying not to get too excited. It’s still up to Congress to decide OECD funding, and the bureaucrats in Paris have been very clever about currying favor with the members of the subcommittee that doles out cash for international organizations.

Though as I mentioned in the interview, the OECD didn’t do itself any favors by openly trashing Trump last year. Even if they have their doubts about Trump, I suspect most GOPers in Congress aren’t happy that the bureaucrats in Paris were trying to tilt the election for Hillary Clinton.

Here are some examples.

The OECD’s number-two bureaucrat, Doug Frantz, actually equated America’s president with the former head of Germany’s National Socialist Workers Party.

The Deputy Secretary General of the OECD has described…Donald Trump as a “lunatic” whose political rise mirrors that of Hitler and Mussolini. …Speaking on RTÉ’s This Week, Doug Frantz said…“if you look at the basis ‘us and them’ that Donald Trump sets up, that Hitler set up, that Mussolini set up, then you can begin to at least be concerned and I’m concerned: I think any right-minded person should be concerned…The person who sits in the White House is the most powerful person in the world and if that person is someone who follows every whim and appeals to the most base instincts of a population, then we’re all under real threat”.

And another news report caught the OECD’s Secretary General, Angel Gurria, basically asserting that Trump is racist.

Angel Gurria, secretary general of the Organisation for Economic Cooperation and Development  and former Mexican foreign minister, says the word “racist” can be applied to Donald Trump. …Gurria tells UpFront’s Mehdi Hasan: “I would tend to agree with those who say that this is not only misinformed, but yes, I think the word racist can be applied. I think that because the American public is wise, it will then act in consequence,” Gurria adds.

By the way, I’m making sure to share these partisan statements with lots of people in Congress and the Administration.

In an ideal world, lawmakers would defund the OECD because it is an egregious waste of money. But if they defund the bureaucracy because its top two officials tried to interfere with the US election, I’ll still be happy with the final outcome.

I’ll close by recycling the video on the OECD that I narrated for the Center for Freedom and Prosperity.

P.S. In the interest of fairness, I’ll acknowledge that the OECD occasionally produces good work. I’ve even favorably cited research from the bureaucracy on issues such as government spending, tax policy, and expenditure limits.

But even if the bureaucracy ended its statist advocacy agenda and gave staff economists carte blanche to produce good papers, that still wouldn’t change my view that American tax dollars should not be funding the OECD. Though I confess it would be a much less attractive target if it returned to its original mission of collecting statistics and publishing studies.

The House of Representatives will vote on a bill this week titled “Kate’s Law” (H.R. 3004). While it is nominally an “immigration” bill, its principal aim relates to criminal justice—namely, an increase in the maximum sentences for immigrants who reenter the country illegally after a deportation. The bill is a waste of federal resources. It would likely balloon America’s population of nonviolent prisoners, while not protecting Americans against serious criminals.

Kate’s Law Would Not Have Helped Kate

The bill’s namesake is Kate Steinle, a 32-year-old medical sales rep killed in San Francisco in 2015. Her killer was Juan Francisco Lopez-Sanchez, who was in the country without status after five removals. Proponents of this bill—providing lengthier prison sentences for people who reenter the country after a removal—believe that this would have somehow helped Kate Steinle. This assertion cannot withstand a moment’s contact with the facts of the case, which I have previously laid out in detail here.

After his last three apprehensions, the government prosecuted Lopez-Sanchez for felony illegal reentry. He served 15 years in federal prison in three five-year increments. None of the facts of this case would have changed if he had served those 15 years consecutively. Indeed, because Lopez-Sanchez never actually made it across the border without being caught since 1997, the only reason that he ended up in San Francisco is because the Bureau of Prisons inexplicably decided to ignore a request for transfer from Immigration and Customs Enforcement (ICE). Instead, it shipped him to the city based on a 20-year-old marijuana charge—an offense that no longer even exists in the city. Thus, deterrence against reentry has no relevance whatsoever to this case.

The Provisions of Kate’s Law

This legislation introduced by House Judiciary Committee Chairman Bob Goodlatte (R-VA) should not be confused with other bills of the same name introduced in the House and the Senate by Rep. Steve King (R-IA) and Sen. Ted Cruz (R-TX), respectively. The entire purpose of the prior iterations of “Kate’s Law” was to create mandatory minimum sentences for crossing the border illegally after a removal. Indeed, the alternate title for the bills was the “Establishing Mandatory Minimums for Illegal Reentry Act.” This new Kate’s Law, however, mercifully contains no mandatory minimum sentences—a sign that criminal justice reformers’ criticisms of them (including Cato’s) have started to penetrate the mainstream.

But the purpose of the law in the broader sense remains: trying to lock up more immigrants for longer periods. Most of the actual text comes from section 3705 of the Senate comprehensive immigration reform bill (S. 744) passed in June 2013, but the Kate’s Law authors have added several odious provisions. The heart of the bill would create a new 10-year maximum sentence for any person removed or denied entry more than two times who reenters. The current maximum for regular reentry is just 2 years. It would increase the maximum sentences for people who reenter after being convicted of various criminal offenses—including for immigration offenses—to up to 25 years.

Kate’s Law deletes two important provisions from the S. 744 language that would have protected from prosecution non-felon juveniles (p. 772-73) and humanitarian groups that provide immigrants caught in deserts or mountains food, water, or transportation to safety, which are sometimes the target of the “aiding and abetting” statutes (p. 774). Kate’s Law would also prohibit challenging the legality or validity of a prior removal order, which is a common defense in these cases. If the earlier removal was not valid, as in at least one case where a U.S. citizen was deported, it should not be the basis of prosecution.

Kate’s Law Would Further Overcriminalization

The U.S. Sentencing Commission estimated that the original mandatory minimums version of Kate’s Law would increase the federal prison population by almost 60,000 in 5 years—a massive 30 percent increase in the total federal prison population. Unfortunately, the House will vote on this new version—revealed late last week—without an estimate of either its financial impact or its impact on the federal prison population. But the law would likely completely reverse the recent 5 percent decline in the federal prison population, the first reduction since the 1970s.

Immigration offenses are already the top reason for a federal arrest, composing half of all federal criminal arrests—a share that has doubled since 2004. From 1998 to 2010, 56 percent of all federal prison admissions were for immigration crimes. Locking up immigrants requires taxpayers to pay to watch, house, clothe, and feed them, and unlike U.S. citizens who are released into the interior, they would otherwise be deported, so their incarceration does not even prevent other U.S. residents from being exposed their criminal behavior (assuming illegal crossing is a concern in that regard). 

While, naturally, locking people up has some deterrent effect on future crossings, Border Patrol doesn’t bother to keep good data on this impact compared to its other efforts. Given the costs of incarceration—both to the person incarcerated and to the U.S. taxpayer—this seems like a critical insight. In any case, if Congress were serious about discouraging illegal immigration, it would make legal immigration significantly easier. As I have shown, the availability of work permits has a major impact on illegal immigration. That would free Border Patrol to focus on the few criminals.

It’s clear that the motivation for Kate’s Law rests on the belief that illegal immigrants are more likely to commit serious crimes and so should be singled out. Yet as my colleagues’ recent paper demonstrates, illegal immigrants are much less likely to end up behind bars than U.S.-born citizens. Because unauthorized immigrants are required to serve sentences before their removal, this is the best indication that they are less likely to commit crimes that require jail time.

In the end, Kate’s Law is an improvement on its prior versions, but is still an unjustifiable use of federal resources. 

In what can only be seen as a big win for the Trump administration, the unanimous Supreme Court both took up the travel-ban cases and allowed most of the relevant executive order to go into effect. There may be lower-court litigation in coming months over the meaning of the “bona fide relationship” to an American person or entity that exempts someone from the travel restriction. Given that the second executive order on this subject, unlike the first, specifically exempted greencard holders, students, family members, those with established business ties, and others, is there even anybody who benefits from this carve-out who wasn’t already exempt from the travel ban?

At the end of the day, and regardless of the policy merits of the executive order—which doesn’t seem well-crafted to address security concerns, but I, like the judiciary, lack access to classified information—the Supreme Court doesn’t seem likely to be swayed by the idiosyncratic atmospherics (campaign speeches, tweets, and all) and will instead focus on a close textual reading of the laws at issue. It seems that all the justices want to return to the “presumption of regularity” that applies to presidential decisions on national security. As Justice Thomas, joined by Justices Alito and Gorsuch, wrote in partial concurrence, the decision to stay the lower courts’ rulings—to allow most of the travel ban to go into effect—is an implicit recognition that the government is likely to succeed on the merits.

Of course, the case might not get to the merits at all, because of standing and mootness concerns that would throw out the lawsuits altogether—or because the travel ban will expire before any final ruling. We shall see soon enough, because the Court has scheduled expedited argument for when it returns from its summer recess the first week of October.

Today, the Supreme Court ruled 7-2 that Trinity Lutheran Church can’t be denied a state playground refurbishment subsidy simply because it’s a religious institution.

As I predicted after argument, the Court saw this as an easy case whereby the government improperly denied a public benefit because of religious status. This doesn’t mean that taxpayer funds can now be used to fund religious instruction or any other parade of horribles that was raised by Trinity Lutheran’s opponents.

Simply put, people and entities can’t be restricted from a government program simply because they’re religious. This is no different than the situation where police or fire protection is provided to houses of worship and other religious institutions.

It’s telling that Chief Justice Roberts’s attempt, via a curious footnote 3, to narrow the scope of his ruling to the facts of this case (to playgrounds?) didn’t command a majority. Justice Breyer only concurs in the judgment—he’s a pragmatist anyway—while Justices Thomas and Gorsuch specifically disclaim the disputed language. Meanwhile, Justice Sotomayor’s dissenting opinion, joined by Justice Ginsburg, seems to think that the ruling dissolves the separation of church and state altogether, footnote or no footnote.

Finally, I should note that the case doesn’t touch issues of taxpayer standing to challenge government grants or exemptions for businesses from generally applicable laws. (On the latter, stay tuned next term when the Court takes up the Masterpiece Cakeshop wedding-vendor case where a bakery declined on religious and free-speech grounds to make a cake for a same-sex ceremony.)

As our Policy Report noted last year, Cato is the only organization in the country that has gone to court to defend both one’s right to marry a person of the same sex and one’s right as a businessperson to join or not join as one chooses in assisting in celebrating a same-sex wedding. We’ll be hearing a lot more about that second issue over the coming year, because this morning the Supreme Court agreed to hear the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission. The case presents the issue “whether applying Colorado’s public accommodations law to compel the petitioner to create expression that violates his sincerely held religious beliefs about marriage violates the free speech or free exercise clauses of the First Amendment.”

Cato scholars and commentators have written about this set of issues for years, including, to name a few, David Boaz (“The solution to injustice is never to reverse the injustice”), Roger Pilon (history of free association and public accommodations laws), Ilya Shapiro (“private individuals should be able to make their own decisions on whom to do business with and how—on religious or any other grounds”), Robert Levy (“Forcing private parties to serve gay weddings is a higher order of coercion than forcing private hotels and restaurants to provide rooms and food to black—or gay—travelers”), Jason Kuznicki (“The market doesn’t care, and that’s a wonderful thing”), Emily Ekins on the polling data on a divided public, and David Lampo (different legal issues at stake than in same-sex marriage cases). Cato filed an amicus brief in the parallel (alas unsuccessful) Arlene’s Flowers case involving Washington florist Barronelle Stutzman. I’ve written about the cake and flowers cases many times at Overlawyered (as well as about other vendor cases involving meeting halls and so forth), and have delved into the collateral damage to civil liberties seen in enforcement actions like that of Oregon in the Melissa and Aaron Klein (Sweet Cakes by Melissa) case. 

A second ruling this morning, while likely to get less attention than the Masterpiece Cakeshop certiorari grant, offers clues on the wholly separate issue of how the holdings of Obergefell and Windsor are faring at the Court. The answer seems to be just fine. In Pavan v. Smith, the justices summarily reversed the Arkansas Supreme Court, which had declined to order an amended birth certificate issued to a lesbian couple on the same terms on which the state would issue such a certificate for a child born via donor reproduction to an opposite-sex couple. Chief Justice Roberts joined the five justices who had been in the Obergefell majority, while Neil Gorsuch, joined by Justices Thomas and Alito, wanted the case argued. My quick take: while Gorsuch et al. offered reasonable-sounding grounds for slowing down and taking a look at the details of the Arkansas dispute, the Court is determined to disallow what it sees as any defiance of Obergefell or attempt to chip away at it, and read the Arkansas high court as having tried that.

Notably, Gorsuch in his dissent took a legal technician’s cool tone that diverged sharply from what one might have expected from the late Justice Scalia: he refrained from zingers at the majority’s expense, stayed far away from culture-war implications, and emphasized that the dispute that might have been aired was over how best to implement Obergefell, not whether to retreat from it. Some voices on the traditionalist sidelines have urged the Court’s conservative wing to wage rhetorical war against Obergefell and Windsor so as to set up an eventual overruling of those decisions. But not a single justice took that approach today. A new Pew survey, incidentally, confirms that opposition to legal recognition of same-sex marriage has extended its historic decline, and is now in a minority even among Republicans. 

Lost in all the commotion over the U.S. Supreme Court’s several decisions today is another important decision with ramifications for school choice. The Georgia Supreme Court unanimously ruled in Gaddy v. Georgia Department of Revenue that plaintiffs had no standing to challenge the state’s tax-credit scholarship program because the scholarship funds are private funds, not a government expenditure:

We also reject the assertion that plaintiffs have standing because these tax credits actually amount to unconstitutional expenditures of tax revenues or public funds. The statutes that govern the Program demonstrate that only private funds, and not public revenue, are used.

The program allows donors to receive tax credits in return for contributions to qualified nonprofit scholarship organizations that help families send their children to the schools of their choice. Plaintiffs asserted that the program violated Georgia’s Blaine Amendment, which prohibits the state from giving public funds to religious schools. However, as we explained in our amicus brief, no public funds are involved. “Taxpayers choose to donate voluntarily using their own private funds and receive a tax credit for the amount of the donation; no money ever enters or leaves the treasury.” Neither does the state direct where the funds are used. “The state exercises no control over which scholarship organizations donors choose to support, which students receive scholarships, or at which schools parents choose to use the scholarships.” The Georgia Supreme Court agreed:

Individuals and corporations chose the [scholarship organizations] to which they wish to direct contributions; these private [scholarship organizations] select the student recipients of the scholarships they award; and the students and their parents decide whether to use their scholarships at religious or other private schools. The State controls none of these decisions. Nor does it control the contributed funds or the educational entities that ultimately receive the funds.

“Today’s victory has secured Georgia parents’ right to continue choosing the best education for their children,” stated Erica Smith, an attorney for the Institute for Justice, which represented scholarship parents in the Gaddy case. “This Court correctly recognized that government should promote educational opportunity and choice, not limit it as the plaintiffs proposed.” 

The decision should also have implications outside of the Peach State. More than 250,000 students are using tax-credit scholarships in 17 states, and more states are likely to adopt similar programs in the years to come. However, opponents of school choice have failed to persuade any high court to block the tax credits by adopting “tax expenditure analysis,” a method of accounting that treats tax credits, deductions, and exemptions as government expenditures. Indeed, the Georgia Supreme Court joins a unanimous chorus of decisions by the U.S. Supreme Court and numerous state supreme courts, including in Arizona and Alabama, holding that tax credits are not public funds. Additionally, the Florida Supreme Court declined to hear an appeal from a lower court decision that similarly ruled that “all funds received by private schools under the [Florida Tax Credit Scholarship Program] come from private, voluntary contributions” to scholarship organizations. Likewise, the Illinois Supreme Court declined to hear a challenge to a lower court decision that tax credits do not constitute public funds. Finally, the New Hampshire Supreme Court also unanimously rejected a challenge to its tax-credit scholarship program, though it did not explicitly rule on the question of public funding. No high court has ever ruled that tax-credit scholarships constitute government expenditures. 

The Institute for Justice also recently won a case against Montana’s Department of Revenue for unconstitutionally preventing families from using tax-credit scholarships at religious schools. Though the legislature had included no such limitation, the department claimed allowing families to use the scholarships at religious schools would violate the state’s Blaine Amendment. A trial court disagreed, holding that (you guessed it) private donations given in exchange for tax credits are not public expenditures.

No doubt opponents of educational choice will continue to devise creative arguments as to why the courts should halt choice programs, but it appears that the “tax expenditure” argument against tax-credit scholarship programs has run its course.

If the death of Justice Antonin Scalia overshadowed the 2015-16 Supreme Court term, the extended absence of his successor and the subsequent battle (including eliminating the judicial filibuster) over the appointment of Neil Gorsuch dominated Court news for 2016. Indeed, Scalia’s absence was felt more in the the lower quality and quantity of cases that the Court took up: The justices ended up deciding 62 cases after argumentthe fewest evernone of which would’ve made it into the “greatest hits” in recent years given the six or seven consecutive “terms of the century.” And recall that the Trump Department of Education withdrew a 2015 guidance letter construing Title IX to require schools to treat transgender students consistent with their expressed gender identity, removing the most politically charged case from the Court’s already muted docket. 

In any event, Justice Gorsuch took his seat on the bench in April, and his initial opinions showcase his promised readable style and principled textualist approach to statutory interpretation. With Justice Anthony Kennedy refraining from announcing his rumored retirementthough we could get a telegram from Salzburg this summerCourt-watchers will likely have to wait another year for the first nomination in a “post-nuclear” world.

Cato still filed in 13 merits cases on important issues ranging from separation of powers, free speech (both commercial and disparaging), and property rights. Improving on a 4-4 performance in an unusual term last yearwhere we still beat the government handilyCato achieved a strong 9-4 showing, besting the combined Obama-Trump effort of 8-12. Cato also effectively drew votes from across the judicial spectrum, winning 10 votes from both Chief Justice John Roberts and Justice Elena Kagan, 9 votes from Justice Stephen Breyer, and 8 votes each from Justices Kennedy, Samuel Alito, and Ruth Bader Ginsburg.

Here’s the breakdown, in the order the opinions arrived:

Winning side (9)NLRB v. SW General, IncExpressions Hair Design v. Schneiderman; Nelson v. Colorado; Bank of America Corp. v. Miami; Kokesh v. SEC; Packingham v. North Carolina; Matal v. Tam; Lee v. Unites States; Trinity Lutheran Church v. Comer.

Losing side (4): Bravo-Fernandez v. United StatesSalman v. United States; Turner v. United States; Murr v. Wisconsin.

Donald Trump’s inauguration also marked the official end of the Obama era at the Supreme Court. A pair of unanimous losses brought the administration’s total to 48, more than a quarter of all cases argued by his administration and approximately 50% higher than both the Bush and Clinton teams. His total winning percentage of under 47% was also significantly lower than both of his predecessors, who finished at 60% and 63% respectively. Of course, the Trump administration is off to an even less auspicious start, with a 1-9 record and 5 unanimous losses in just half a term. (The apportionment of cases on either side of the inauguration may be somewhat artificial, given that most or all of these relatively low-profile Supreme Court arguments were handled by career lawyers, not political appointees, and the government’s position didn’t change with the change of administration.)

This fall promises another blockbuster term, with the travel ban, Fourth Amendment protection of cellphone location data, same-sex wedding vendors, and likely the fate of mandatory union dues headlining the docket.

I’m sure I’ll have more to say on this in future commentary, but if you’d like to learn more about all these cases/trends and the views of Cato-friendly scholars and lawyers, register for our 16th Annual Constitution Day Symposium, which will be held September 18. That’s also when we’ll be releasing the latest volume of the Cato Supreme Court Review, the editing of which will consume much of my summer.

Last week, Thomas Firey blogged here on how proponents of higher minimum wages tend to be selective when reviewing the academic literature. In particular, they mischaracterize it as implying that papers tend to show minimum wage hikes do not affect employment.

Right on cue, an important new NBER paper from academics at the University of Washington examining Seattle’s two minimum wage hikes since 2014 suggests significant job and hour losses as the pay floor rose.

Seattle raised its minimum wage from $9.47 to $11 per hour in 2015 and then again to $13 per hour in 2016. The report concludes:

Using a variety of methods to analyze employment in all sectors paying below a specified real hourly rate, we conclude that the second wage increase to $13 reduced hours worked in low-wage jobs by around 9 percent, while hourly wages in such jobs increased by around 3 percent. Consequently, total payroll fell for such jobs, implying that the minimum wage ordinance lowered low-wage employees’ earnings by an average of $125 per month in 2016. Evidence attributes more modest effects to the first wage increase.

The paper seems significant both as a result in its own right and in addressing why sometimes results can be so different depending on methodology.

It suggests that the disemployment effects caused by reductions in demand for low-wage labor rise disproportionately as the wage floor increases. This is logical, but often needs to be articulated given many appeals to the effects of past increases in wage floors as evidence for new much higher minimum wages (see the “Fight for 15,” for example).

Perhaps more importantly, whereas much of the previous literature examines low-wage industries (usually restaurants or retail) or teenagers as proxies for those impacted by minimum wage changes, this paper uses a comprehensive data set allowing assessment on employment for all categories of low-wage employees across industries and demographics. This suggests that previous research examining the impact on individual industries such as restaurants may have significantly underestimated the negative effects on hours worked for low-wage employees.

Of course, as with all studies, there will be disputes about methodology. The paper itself notes that it does not include companies with multiple locations, such as fast food chains, which theory suggests could bias the results in either direction. They also acknowledge that some of the “jobs lost” may have been replaced by jobs in the broader area, making their results an overestimate. Overall though, this is further evidence, adding to an already large literature, suggesting raising the minimum wage to high levels has a very high cost indeed and that the competitive model of the labor market holds.

Today’s Trinity Lutheran ruling strikes a blow against patently unequal treatment of religious Americans under state laws, an inequality felt no more acutely than in education. But it does not yet get us to where we need to be.

The huge impact of today’s ruling is that it says religious institutions cannot be barred from participating in government programs simply because they are religious. The Trinity Lutheran Church could not be ruled ineligible to participate in a grant program to improve playgrounds simply because it is a religious entity. This should have been a simple decision: It is clearly unequal treatment of religious Americans under the law to say “the reason you are ineligible for this benefit for which anyone else is eligible is that you are religious.”

This is crucial, but it is not sufficient to throw open the doors to full freedom and equality in education.

First, as Justices Thomas and Gorsuch note in their concurring opinions, the Trinity decision keeps in place the ruling in Locke v. Davey (2004) that a state could deny a student a scholarship otherwise available to him because he planned to study to become a minister. Trinity supports the rationale of denying funding for someone to learn to propagate religion. But why should someone be barred from accessing otherwise generally available funding only because the profession he wished to follow was religious? From a school choice perspective, if a goal of sending your child to a religious school with a voucher is that he or she will learn to evangelize, precedent still stands in your way.

Second, Trinity says that religious institutions cannot be excluded from funding otherwise available to other groups. It does not state that it is unconstitutional to require people to fund a single government institution—in education, de facto atheist or agnostic public schooling systems—then pay a second time for institutions that are consistent with their beliefs and values. That would be crucial to truly treat religious people equally, and to totally clear the path for school vouchers. (Tax credits, as we see again in Georgia today, are a different, more liberated story!)

Today’s ruling is a welcome move in a decidedly right direction, but it is not sufficient to achieve full equality in education.

Property owners have long suffered under the Supreme Court’s erratic rulings. It got worse today. In Murr v. Wisconsin, the Court ruled against the owners, 5-3, with Justice Kennedy writing for the majority, Chief Justice Roberts writing a dissent, joined by Justices Thomas and Alito, Thomas writing a separate dissent, and Justice Gorsuch taking no part. The problem isn’t simply with the majority’s holding and opinion, it’s with the dissent as well. Only Thomas points in the right direction.

This was a regulatory takings case arising under the Fifth Amendment’s Takings Clause, which prohibits government from taking private property for public use without just compensation. In separate conveyances in 1994 and 1995, the Murrs, four siblings, inherited two contiguous lots on the St. Croix River that their parents had purchased in 1960 and 1963. The parents had built an ancestral home on the first lot. They bought the second for investment purposes.

The trouble began in 2004 when the Murrs sought to sell the second lot, valued at $410,000, and use the proceeds to upgrade the ancestral home. But they were blocked by a 1975 local zoning ordinance that treated the two lots as one, even though they had long been deeded and taxed separately. Under the ordinance they had to sell the lots together or not at all. Out $410,000, the Murrs sued, claiming that the ordinance had deprived them of their right to sell their property.

Here it gets complicated. In a 1992 decision, Lucas v. South Carolina Coastal Council, a 5-4 Court held that David Lucas was entitled to compensation after an ordinance prohibiting him from building on his property effectively wiped out all of its value. The problem with this “wipeout” rule, of course, is that most regulations leave at least some value in the property. When Justice Stevens called the rule “arbitrary” since “the landowner whose property is diminished in value 95% recovers nothing,” Justice Scalia, writing for the Court, responded tersely, “Takings law is full of these ‘all or nothing’ situations.”

In so writing, Scalia was citing a 1978 decision, Penn Central v. New York, which gave us a balancing test that nobody understands, least of all Justice Brennan who crafted it.  There that Court held that its test must be applied to “the parcel as a whole,” not to some portion of it. Combined with Lucas, that makes all the difference in the world for the Murrs. If their lots are treated separately, as they have always been except for this ordinance, virtually all value in the second has been wiped out and the Murrs, under Lucas, are entitled to compensation for the taking. But with the two lots combined as one, value remains, so the state can escape paying the Murrs any compensation. Thus, the question before the Court was whether the state could do that simply by treating the two lots as one.

Thomas joined the dissent because, as he wrote, “it correctly applies this Court’s regulatory takings precedents, which no party has asked us to reconsider.” But he went on to say that “it would be desirable for us to take a fresh look at our regulatory takings jurisprudence, to see whether it can be grounded in the original public meaning of the Takings Clause of the Fifth Amendment or the Privileges or Immunities Clause of the Fourteenth Amendment.” Why take a fresh look? Because the Court “has never purported to ground [its] precedents in the Constitution as it was originally understood.”

Justice Kennedy begins his opinion for the Court with Justice Holmes’s famous 1922 remark, that if a regulation goes “too far” it constitutes a taking—and the opinion goes downhill from there, a mass of confusions. Roberts does a tolerable job of dissecting it, concluding that “today’s decision knocks the definition of ‘private property’ loose from its foundation on stable state law rules and throws it into the maelstrom of multiple factors” for determining when a taking occurs. Correct, but Roberts himself does little better. In fact, he writes that the Court’s holding “that the regulation does not constitute a taking that requires compensation … does not trouble him.” (emphasis added) It’s only the Court’s reasoning that’s troubling (and rightly so). Roberts would have vacated the judgment below and remanded for the court to identify the relevant property using ordinary principles of Wisconsin property law.

But there, precisely, is the problem. State law defined the property. There were two lots, deeded and taxed separately, and that continued to the present. But then state law redefined the property. It was the later local ordinance that combined the lots, effectively taking one of the most basic rights an owner has, the right to dispose of (sell) that distinct second lot, bought for investment purposes. That was when the taking occurred, even though it wasn’t realized until the Murrs tried to sell the lot. The rest of the analysis coming from Penn Central’s multi-factor balancing test—like whether the Murrs retained value in “the parcel as a whole”—is just so much distraction from the core issue. And even if that were the question, it takes us back to Lucas’s error. Roberts’ invokes the metaphor that treats property like a “bundle of sticks,” signifying all the rights that go with property. Lucas held, wrongly, that compensation is due only after the last stick is taken—the wipeout rule. No, a taking occurs with the first stick taken. The stick the Murrs lost was the right to sell that lot. It’s no more complicated than that—unless the decision turns on a long line of mistaken precedents. One can only hope that Justice Thomas will one day have an opportunity to write the opinion that sets this sorry record straight.

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