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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.

The Supreme Court today came down with opinions in two cases in which Cato filed a brief. First, in Murr v. Wisconsin, it unfortunately ruled against property owners in an important regulatory-takings case. Then, in Lee v. United States, it correctly found that a criminal defendant who had virtually no chance to win at trial—absent jury nullifcation, which was our focus—was still prejudiced by (and entitled to a new trial due to) his counsel’s wrong advice that he wouldn’t be deported if he pled guilty.

Murr: Whenever you see a court invoke a “multifactor balancing test,” you know it’s just making stuff up. Alas that’s what happened in Murr v. Wisconsin, where a family was deprived of significant use of its property—not to mention economic benefits—because of an unfortunate operation of local law. The Supreme Court compounded that harm by essentially deferring to state determinations of property owners’ rights, and did so by applying that “multifactor” standard that allows it to reach whatever result it wants. This ruling shows that in the grander scheme, as Justice Thomas noted in his dissent, the Supreme Court needs to reevaluate its regulatory-takings jurisprudence altogether. (For more, see Cato’s amicus brief.)

Lee: The Court was correct to give even seemingly hopeless criminal defendants the right to adequate legal repreentation. Jae Lee only took a plea deal because his lawyer repeatedly assured him that he wouldn’t face deportation. The fact that going to trial, where he had no legal leg to stand on, would’ve almost certainly resulted in a longer prison sentence is immaterial. It’s clear that for Lee, who was brought to the United States from South Korea as a child, the risk of being forced to leave the only country he knows was much more important than a longer prison sentence. Lurking under this case was the controversial doctrine-that-must-not-be-named of jury nullification, which was essentially Lee’s only chance for acquittal. (For more, see Cato’s amicus brief.)

Stay tuned Monday for the Supreme Court’s final opinions of the term (especially Trinity Lutheran), as well as decisions on whether to take up the travel-ban case, Masterpiece Bakery (vendors for same-sex weddings), and Peruta (Second Amendment right to carry). And maybe, just maybe, Justice Anthony Kennedy will announce his retirement—though if I had to bet, I’d say he sticks around another year.

Yesterday, I posted “Five Questions I Will Use to Evaluate the Phantom Senate Health Care Bill.” The phantom bill took corporeal form today when Senate Republicans released the text of the “Better Care Reconciliation Act.”

So how does the Senate bill fare with regard to my five questions?

1. Would it repeal the parts of ObamaCare—specifically, community rating—that preclude secure access to health care by causing coverage to become worse for the sick and the Exchanges to collapse?

No. The Senate bill would preserve ObamaCare’s community-rating price controls. To be fair, it would modify them. ObamaCare forbids premiums for 64-year-olds to be more than three times premiums for 18-year-olds. The Senate bill would allow premiums for the older cohort to be up to five times those for the younger cohort. But these “age rating” restrictions are the least binding part of ObamaCare’s community-rating price controls. Those price controls would therefore continue to wreak havoc in the individual market. The Senate bill would also preserve nearly all of ObamaCare’s other insurance regulations. 

2. Would it make health care more affordable, or just throw subsidies at unaffordable care?

The Senate bill, like ObamaCare, would simply throw taxpayer dollars at unaffordable care, rather than make health care more affordable.

Making health care more affordable means driving down health care prices. Recent experiments have shown that cost-conscious consumers do indeed push providers to cut prices. (See below graph. Source.)  

If you want to see that level of price reductions, you need something along the lines of “large” health savings accounts.

The Senate bill would make only minor adjustments to tax-free HSAs that would not deliver lower prices. 

3. Would it actually sunset the Medicaid expansion, or keep the expansion alive long enough for a future Democratic Congress to rescue it?

The bill would keep it alive so ObamaCare supporters can rescind the repeal.

To be fair, the Senate bill would forbid the 19 states that haven’t implemented ObamaCare’s Medicaid expansion from doing so. As explained below, however, the bill would expand a different entitlement–ObamaCare’s Exchange subsidies–to that population. 

The bill would also repeal the Medicaid expansion in 2024. Yet three new Congresses would take their seats between passage of the bill and when it would repeal the Medicaid expansion. We may even get a new president by then. It is almost guaranteed that one of those Congresses (if not all three) will be more supportive of the Medicaid expansion than the current Congress. Such a Congress could rescind that before it ever happens, as if it never happened.

Senate Republicans rigged this Medicaid-expansion repeal never to take effect.

4. Tax cuts are almost irrelevant—how much of ObamaCare’s spending would it repeal?

This one is hard to answer without an official score from the Congressional Budget Office–or even with one. Senate Republicans played budget games that hide how much of ObamaCare’s spending they are keeping. 

Senate Republicans required the CBO to compare the cost of the bill to projections of Exchange enrollment and spending that everyone agrees are inflated. So the forthcoming CBO score will make it look like the Senate bill increases the uninsured more than it actually does. Put differently, the CBO score will count some people as losing coverage under the Senate bill even though they weren’t going to have coverage anyway. By the same token, this gimmick will make the Senate bill look like it cuts ObamaCare spending more than it does. It requires the CBO to score the Senate bill as eliminating ObamaCare outlays that were never going to happen. The sneaky part is that this budget gimmick then allows Senate Republicans to apply those phantom cuts either to new spending or deficit reduction.

One way the Senate bill applies those phantom cuts to new spending is by expanding ObamaCare to an additional 2.6 million Americans. Thirty-one states and D.C. have implemented ObamaCare’s Medicaid expansion. The Kaiser Family Foundation estimates that in the 19 states that have not expanded Medicaid, there are 2.6 million able-bodied adults who earn too much to qualify for Medicaid but less than 100 percent of the federal poverty level, and thus not enough to receive a “premium assistance tax credit” toward the purchase of an Exchange plan. (We call them tax credits, but they are mostly outlays.) In 2020, the Senate bill would open eligibility for the tax credits to everyone below 100 percent of the federal poverty level in states that do not implement the expansion. This would expand ObamaCare to another 2.6 million people. In effect, it is Medicaid expansion by another means–and it effectively snubs GOP officials in the 19 states that did the right thing (reduced federal deficits, etc.) by not expanding Medicaid.

The Senate bill would also fund ObamaCare’s “cost-sharing” subsidies, something the law’s Democratic authors never did. That, too, would expand ObamaCare beyond what a Democratic Congress created.

So even if the bill’s spending cuts were real (they’re not; see above), we still wouldn’t really know how much the Senate bill reduces actual federal outlays. All we know for sure is that Senate Republicans want to hide how much ObamaCare spending they are preserving, and that the CBO score will likely overstate the bill’s deficit reduction.

5. If it leaves major elements of ObamaCare in place, would it lead voters to blame the ongoing failure of those provisions on (supposed) free-market reforms?

Yes.

Supporters of the Senate bill are calling it a huge win for conservative governance. 

Finished reading the Senate HC bill. Put simply: If it passes, it’ll be the greatest policy achievement by a GOP Congress in my lifetime.

— Avik Roy (@Avik) June 22, 2017

Yet the bill does almost nothing to address the fundamental flaws and instability in ObamaCare’s architecture. Community rating and other provisions of the law will continue to increase premiums, degrade the quality of coverage, and destabilize insurance markets. ObamaCare supporters, including those who also support a single-payer system, will be quick to blame ObamaCare’s failures on the conservative, free-market ideology that supposedly animates the Senate bill. Such claims will be nonsense. But the narrative will be difficult to combat. The Senate bill could therefore set back the cause of free-market health care reform by decades–yet another feature it shares with ObamaCare. 

—–

The Senate bill is not even a step in the right direction. If this is the choice facing congressional Republicans, it would be better if they did nothing. Consumers would continue to struggle under ObamaCare’s regulations, but those costs would focus attention on their source. The lines of accountability would be clearer if Republicans signed off on legislation that seems designed to rescue ObamaCare rather than repeal and replace it.

One of the liberties protected by the Constitution is the right to do business in other states, on the same terms as companies based in those states. That right is enshrined in the Privileges and Immunities Clause of Article IV, section 2, one of the handful of individual rights that the Framers saw fit to safeguard even before the Bill of Rights was enacted. In fact, ensuring the opportunity to do business out-of-state on equal terms with a state’s residents was one of the principal motivations for holding the Constitutional Convention in the first place. But the U.S. Court of Appeals for the Ninth Circuit has condoned California’s violation of that right.

California enacted a set of commercial-fishing license fees that require nonresidents to pay several times more than residents. The system is explicitly discriminatory, harshly regressive, and intentionally protectionist. The Supreme Court and the Fourth Circuit, in substantively identical circumstances, have ruled these kinds of provisions to be impermissible: States must charge license fees equally to residents and nonresidents alike, or else bear the burden of justifying their discrimination (which California has made little real effort to do). But an en banc majority of the Ninth Circuit quite literally imposed the opposite rule. Not only did it uphold California’s discrimination, but it supported its holding with guesstimates of tax payments and rough calculations of economic costs that the state itself had never supplied. The result is conflict between two federal circuits and an open door for new methods of discrimination that the Constitution has always forbidden.

Now, a group of fishermen, with amicus support from Cato, is asking the Supreme Court to hear their case and strike down California’s differential commercial fishing license fees. Under the Ninth Circuit’s reasoning, everything California spends on fishery regulation is considered a “subsidy” to that industry—a subsidy paid by resident taxpayers for which the state must be compensated. This framing ignores the fact that nonresident fishermen also pay California sales tax and California income tax for income derived from in-state activities (when their income is enough to qualify for taxation, which it often isn’t) and directly contradicts controlling Supreme Court precedent. This dangerous rationale could otherwise be applied to any number of the nearly one-third of US occupations currently regulated by the states, and if unchecked could contribute significantly to creating just the sort of balkanized national economy that the Constitution was intended to prevent.

The fact of the matter is that California is attempting to protect local business interests at the expense of nonresidents and dress up its blatantly protectionist violation of the Privileges and Immunities Clause in reasonable-sounding language about fairness. The Supreme Court should grant certiorari and remind the Ninth Circuit that this sort of behavior is constitutionally unacceptable.

One of the original arguments for educating children in traditional public schools is that they are necessary for a stable democratic society. Indeed, an English parliamentary spokesman, W.A. Roebuck, argued that mass government education would improve national stability through a reduction in crime.

Public education advocates, such as Stand for Children’s Jonah Edelman and the American Federation for Teachers’ Randi Weingarten, still insist that children must be forced to attend government schools in order to preserve democratic values.

Theory

In principle, if families make schooling selections based purely on self-interest, they may harm others in society. For instance, parents may send their children to schools that only shape academic skills. As a result, children could miss out on imperative moral education and harm others in society through a higher proclivity for committing crimes in the future.

However, since families value the character of their children, they are likely to make schooling decisions based on institutions’ abilities to shape socially desirable skills such as morality and citizenship. Further, since school choice programs increase competitive pressures, we should expect the quality of character education to increase in the market for schooling. An increase in the quality of character education decreases the likelihood of criminal activity and therefore improves social order.

Evidence

There are only three studies causally linking school choice programs to criminal activity. Two studies examine the impacts of charter schools and one looks at the private school voucher program in Milwaukee. Each study finds that access to a school choice program substantially reduces the likelihood that a student will commit criminal activity later on in life.

Notably, Dobbie & Fryer (2015) find that winning a random lottery to attend a charter school in Harlem completely eliminates the likelihood of incarceration for males. In addition, they find that female charter school lottery winners are less than half as likely to report having a teen pregnancy.

Note: A box highlighted in green indicates that the study found statistically significant crime reduction.

According to the only causal studies that we have on the subject, school choice programs improve social order through substantial crime reduction. If public education advocates want to continue to clench onto the idea that traditional public schools are necessary for democracy, they ought to explain why the scientific evidence suggests the opposite.

Of course, these impacts play a significant role in shaping the lives of individual children. Perhaps more importantly, these findings indicate that voluntary schooling selections can create noteworthy benefits for third parties as well. If we truly wish to live in a safe and stable democratic society, we ought to allow parents to select the schooling institutions that best shape the citizenship skills of their own children.

On Monday, the Supreme Court ruled that a North Carolina preventing sex offenders from accessing social media and other websites – without any attempt to tailor restrictions to potential contact with minors – violated the First Amendment. But restrictions on the freedom of speech aren’t the only unconstitutional deprivations sex offenders face.

In 1994, Minnesota passed what has become arguably the most aggressive and restrictive sex-offender civil-commitment statute in the country. The Minnesota Sex Offender Program (MSOP) provides for the indefinite civil commitment of “sexually dangerous” individuals, over and beyond whatever criminal sentence they may have already completed.

And while there is technically a system in place whereby committed individuals can petition for release or a loosening of their restrictions, in the more than 20 years that the MSOP has existed, only one person has ever been fully discharged (someone in the program for offenses committed as a minor, and he was only discharged after a court challenge). As Craig Bolte, one person committed in the MSOP, has testified, there is a distinct feeling that “the only way to get out is to die.”

The Supreme Court has held that states have the authority to commit individuals against their will outside the traditional criminal justice context, but only for the purpose of keeping genuinely dangerous people off the streets while undergoing rehabilitative treatment. Punishment and deterrence are legitimate goals exclusively of the criminal justice system, so any deprivation of liberty for either of those two purposes must follow only from that system, with all the procedural protections our Constitution requires.

What sets Minnesota’s program apart from other schemes that have been upheld is that it doesn’t provide for any sort of periodic assessment to determine who does or doesn’t meet the requirements for discharge. By the state’s own admission, hundreds of civilly committed individuals have never received an assessment of their risk to the public, and hundreds more have received assessments only sporadically.

The MSOP is aware that at least some of the people in its custody satisfy statutory-discharge criteria, yet has taken no steps to determine who they are, let alone begin discharge proceedings. For these reasons, Kevin Karsjens and other similarly committed individuals have brought a federal class action challenging the MSOP as an irrational violation of their right to freedom from bodily restriction. They prevailed in the trial court, but the U.S. Court of Appeals for the Eighth Circuit reversed, stating that the plaintiffs have no liberty interest in freedom from physical restraint—not that their liberty interest must be balanced against the state’s interest in protecting the public from violence, but that for sex offenders, that liberty interest simply does not exist.

The plaintiffs now seek Supreme Court review. Cato, joined by the Reason Foundation, has filed an amicus brief in support of the committed individuals. The lack of periodic risk assessment and the punitive nature of the state’s policies represent an unconstitutional attempt to exact effectively criminal penalties on individuals who have not been provided the full procedural protections of criminal law.

The high court should intervene and repair the damage done by the unfettered confinement of sex offenders and restore the appropriate level of constitutional scrutiny to serious deprivations of liberty.

The Supreme Court will decide whether to take up Karsjens v. Piper when it returns from its summer recess.

Leftists don’t have many reasons to be cheerful.

Global economic developments keep demonstrating (over and over again) that big government and high taxes are not a recipe for prosperity. That can’t be very encouraging for them.

They also can’t be very happy about the Obama presidency. Yes, he was one of them, and he was able to impose a lot of his agenda in his first two years. But that experiment with bigger government produced very dismal results. And it also was a political disaster for the left since Republicans won landslide elections in 2010 and 2014 (you could also argue that Trump’s election in 2016 was a repudiation of Obama and the left, though I think it was more a rejection of the status quo).

But there is one piece of good news for my statist friends. The tax cuts in Kansas have been partially repealed. The New York Times is overjoyed by this development.

The Republican Legislature and much of Kansas has finally turned on Gov. Sam Brownback in his disastrous five-year experiment to prove the Republicans’ “trickle down” fantasy can work in real life — that huge tax cuts magically result in economic growth and more, not less, revenue. …state lawmakers who once abetted the Brownback budgeting folly passed a two-year, $1.2 billion tax increase this week to begin repairing the damage. …It will take years for Kansas to recover.

And you won’t be surprised to learn that Paul Krugman also is pleased.

Here’s some of what he wrote in his NYT column.

…there was an idea, a theory, behind the Kansas tax cuts: the claim that cutting taxes on the wealthy would produce explosive economic growth. It was a foolish theory, belied by decades of experience: remember the economic collapse that was supposed to follow the Clinton tax hikes, or the boom that was supposed to follow the Bush tax cuts? …eventually the theory’s failure was too much even for Republican legislators.

Another New York Times columnist did a victory dance as well.

The most momentous political news of the past week…was the Kansas Legislature’s decision to defy the governor and raise income taxes… Kansas, under Gov. Sam Brownback, has come as close as we’ve ever gotten in the United States to conducting a perfect experiment in supply-side economics. The conservative governor, working with a conservative State Legislature, in the home state of the conservative Koch brothers, took office in 2011 vowing sharp cuts in taxes and state spending, except for education — and promising that those policies would unleash boundless growth. The taxes were cut, and by a lot.

Brownback’s supply-side experiment was a flop, the author argues.

The cuts came. But the growth never did. As the rest of the country was growing at rates of just above 2 percent, Kansas grew at considerably slower rates, finally hitting just 0.2 percent in 2016. Revenues crashed. Spending was slashed, even on education… The experiment has been a disaster. …the Republican Kansas Legislature faced reality. Earlier this year it passed tax increases, which the governor vetoed. Last Tuesday, the legislators overrode the veto. Not only is it a tax increase — it’s even a progressive tax increase! …More than half of the Republicans in both houses voted for the increases.

If you read the articles, columns, and editorials in the New York Times, you’ll notice there isn’t a lot of detail on what actually happened in the Sunflower State. Lots of rhetoric, but short on details.

So let’s go to the Tax Foundation, which has a thorough review including this very helpful chart showing tax rates before the cuts, during the cuts, and what will now happen in future years (the article also notes that the new legislation repeals the exemption for small-business income).

We know that folks on the left are happy about tax cuts being reversed in Kansas. So what are conservatives and libertarians saying?

The Wall Street Journal opined on what really happened in the state.

…national progressives are giddy. Their spin is that because the vote reverses Mr. Brownback’s tax cuts in a Republican state that Donald Trump carried by more than 20 points, Republicans everywhere should stop cutting taxes. The reality is more prosaic—and politically cynical. …At bottom the Kansas tax vote was as much about unions getting even with the Governor over his education reforms, which included making it easier to fire bad teachers.

And the editorial also explains why there wasn’t much of an economic bounce when Brownback’s tax cuts were implemented, but suggests there was a bit of good news.

Mr. Brownback was unlucky in his timing, given the hits to the agricultural and energy industries that count for much of the state economy. But unemployment is still low at 3.7%, and the state has had considerable small-business formation every year since the tax cuts were enacted. The tax competition across the Kansas-Missouri border around Kansas City is one reason Missouri cut its top individual tax rate in 2014.

I concur. When I examined the data a few years ago, I also found some positive signs.

In any event, the WSJ is not overly optimistic about what this means for the state.

The upshot is that supposedly conservative Kansas will now have a higher top marginal individual income-tax rate (5.7%) than Massachusetts (5.1%). And the unions will be back for another increase as spending rises to meet the new greater revenues. This is the eternal lesson of tax increases, as Illinois and Connecticut prove.

And Reason published an article by Ben Haller with similar conclusions.

What went wrong? First, the legislature failed to eliminate politically popular exemptions and deductions, making the initial revenue drop more severe than the governor planned. The legislature and the governor could have reduced government spending to offset the decrease in revenue, but they also failed on that front. Government spending per capita remained relatively stable in the years following the recession to the present, despite the constant fiscal crises. In fact, state expenditure reports from the National Association of State Budget Officers show that total state expenditures in Kansas increased every year except 2013, where expenditures decreased a modest 3 percent from 2012. It should then not come as a surprise that the state faced large budget gaps year after year. …tax cuts do not necessarily pay for themselves. Fiscal conservatives, libertarians, …may have the right idea when it comes to lowering rates to spur economic growth, but lower taxes by themselves are not a cure-all for a state’s woes. Excessive regulation, budget insolvency, corruption, older demographics, and a whole host of other issues can slow down economic growth even in the presence of a low-tax environment.

Since Haller mentioned spending, here’s another Tax Foundation chart showing inflation-adjusted state spending in Kansas. Keep in mind that Brownback was elected in 2010. The left argued that he “slashed” spending, but that assertion obviously is empty demagoguery.

Now time for my two cents.

Looking at what happened, there are three lessons from Kansas.

  1. A long-run win for tax cutters. If this is a defeat, I hope there are similar losses all over the country. If you peruse the first chart in this column, you’ll see that tax rates in 2017 and 2018 will still be significantly lower than they were when Brownback took office. In other words, the net result of his tenure will be a permanent reduction in the tax burden, just like with the Bush tax cuts. Not as much as Brownback wanted, to be sure, but leftists are grading on a very strange curve if they think they’ve won any sort of long-run victory.
  2. Be realistic and prudent. It’s a good idea to under-promise and over-deliver. That’s true for substance and rhetoric.
    1. Don’t claim that tax cuts pay for themselves. That only happens in rare circumstances, usually involving taxpayers who have considerable control over the timing, level, and composition of their income. In the vast majority of cases, tax cuts reduce revenue, though generally not as much as projected once “supply-side” responses are added to the equation.
    2. Big tax cuts require some spending restraint. Since tax cuts generally will lead to less revenue, they probably won’t be durable unless there’s eventually some spending restraint (which is one of the reasons why the Bush tax cuts were partially repealed and why I’m not overly optimistic about the Trump tax plan).
    3. Tax policy matters, but so does everything else. Lower tax rates are wonderful, but there are many factors that determine a jurisdiction’s long-run prosperity. As just mentioned, spending restraint is important. But state lawmakers also should pay attention to many other issues, such as licensing, regulation, and pension reform.
  3. Many Republicans are pro-tax big spenders. Most fiscal fights are really battles over the trend line of spending. Advocates of lower tax rates generally are fighting to reduce the growth of government, preferably so it expands slower than the private sector. Advocates of tax hikes, by contrast, want to enable a larger burden of government spending. What happened in Kansas shows that it’s hard to starve the beast if you’re not willing to put government on a diet.

By the way, all three points are why the GOP is having trouble in Washington.

The moral of the story? As I noted when writing about Belgium, it’s hard to have good tax policy if you don’t have good spending policy.

Recent terrorist attacks in Europe have increased death tolls and boosted fears on both sides of the Atlantic. Last year, I used common risk analysis methods to measure the annual chance of being murdered in an attack committed on U.S. soil by foreign-born terrorists. This blog is a back of the envelope estimate of the annual chance of being murdered in a terrorist attack in Belgium, France, Germany, Sweden and the United Kingdom. The annual chance of being murdered in a terrorist attack in the United States from 2001 to 2017 is about 1 in 1.6 million per year. Over the same period, the chances are much lower in European countries.

Methods and Sources

Belgium, France, and the United Kingdom are included because they have suffered some of the largest terrorist attacks in Europe in recent years. Sweden and Germany are included because they have each allowed in large numbers of refugees and asylum seekers who could theoretically be terrorism risks.

The main sources of data are the Global Terrorism Database at the University of Maryland for the years of 1975 to 2015, with the exception of 1993. I used the RAND Database of Worldwide Terrorism to fill in the year 1993. I have not compiled the identities of the attackers, any other information about them, or the number of convictions for planning attacks in Europe. The perpetrators are excluded from the fatalities where possible. Those databases do not yet include the years 2016 and 2017, so I relied on Bloomberg and Wikipedia to supply a rough estimate of the number of fatalities in terrorist attacks in each country in those two years through June 20, 2017. The United Nations Population Division provided the population estimates for each country per year.

Terrorism Fatality Risk for Each Country

This section displays the number of terrorist fatalities and the annual chance of a resident of each country being murdered. The results in this section answer three important questions: What is the annual chance of having been killed in a terrorist attack from 1975 through 2017 in each European country? Has the annual chance of being killed in a terrorist attack gone up since the 9/11 attacks? How does the risk in Europe compare to the risk in the United States?

European Terrorism from 1975 through June 20th, 2017

Residents of the United Kingdom have suffered the most from terrorism. Almost 78 percent of the European fatalities reported in Table 1 were residents of the United Kingdom and about 95 percent of those British fatalities occurred before 2001.

Residents of the United Kingdom suffered the most from terrorism with the highest annual chance of dying at one in 964,531 per year (Table 1).

Table 1: Fatalities and Annual Chance of Dying in a Terrorist Attack, 1975–June 20th, 2017

 

Fatalities

Annual Chance of Dying

United Kingdom

2,632

1 in 964,531

Belgium

64

1 in 6,936,545

France

506

1 in 4,984,301

Sweden

20

1 in 19,001,835

Germany

148

1 in 23,234,378

United States

3568

1 in 3,241,363

Sources: Global Terrorism Database, RAND Corporation, United Nations Population Division, Bloomberg, Wikipedia, author’s calculations.

The deadliest terrorist attack across these five European countries was the 1988 bombing of Pan Am 103 over Lockerbie, Scotland, which killed 270. An additional 110 residents of these five countries were murdered in that year. The next deadliest year was 1976 with 354 victims. The third deadliest year was 1975, when there were 1,252 murders in terrorist attacks (Figure 1). The number of fatalities in European terrorist attacks increased to 172 in 2015 and fell to 133 in 2016. Every death in a terrorist attack is a tragedy but Europeans should feel comforted by the fact that their chances of dying of such an attack are minuscule.

Figure 1: Terrorism Fatalities in Belgium, France, Germany, Sweden, and the United Kingdom, 1975–2017

Sources: Global Terrorism Database, RAND Corporation, United Nations Population Division, Bloomberg, Wikipedia.

Terrorism Risk in Europe versus the United States

The annual chance of being murdered in any terrorist attack in the United States from 2001 to 2017 is about 1 in 1.6 million per year (Table 2). The annual chances were much higher in every European country during the same period. Table 2 also includes the United States without the fatalities from the 9/11 attacks as they were such extremely deadly outliers that are unlikely to be repeated. Thus, excluding the 9/11 attacks in one example allows a potentially better cross-country comparison of the annual fatality chances. Strikingly, the annual chance of an American being murdered in a terrorist attack is almost identical across the two periods when 9/11 is excluded – evidence that those attacks were outliers that punctuated an otherwise steady trend.

Prior to 2001, the annual chance of dying in a terrorist attack in every country in Europe was higher than in the United States, with the sole exception of Sweden. When 9/11 occurred, the relative risk to residents in these countries flipped and the United States became more dangerous.

Table 2: Annual Chance of Dying in a Terrorist Attack by Period

 

Annual Chance of Dying in a Terrorist Attack

 

1975–2000

2001–2017

United States

19,767,153

1,602,021

France

6,059,061

4,006,878

Belgium

9,611,873

4,373,511

United Kingdom

590,389

8,796,562

Sweden

22,145,655

15,858,016

United States (exc. 9/11)

19,767,153

19,772,468

Germany

17,338,091

47,429,484

Sources: Global Terrorism Database, RAND Corporation, United Nations Population Division, Bloomberg, Wikipedia, author’s calculations.  Through June 20th, 2017.

Terrorism Risk Since 9/11

Many think that Islamic terrorism since 2001 is deadlier than past terrorism. This is certainly true in the United States where at least 3,246 people were killed on U.S-soil in all terror attacks from 2001 to through 2017 compared to only 322 from 1975 through 2000. Those differences are reflected in the greater, but still small, annual chance of an American dying from terrorism in the later period (Table 2). The chances of being murdered in a terrorist attack are also higher in France, Belgium, and Sweden but they are still tiny. Residents in the United Kingdom and Germany were less likely to die, per year, in a terrorist attack from 2001 through 2017.

The largest decline in risk was in the United Kingdom where the annual chance of being killed by terrorists went from 1 in 590,380 per year prior to 2001 to 1 in 8,796,562 per year from 2001 through June 20th, 2017. For 2016 and 2017 (so far), the chance of a British resident dying in a terrorist attack is about 1 in 3.5 million per year. The chance of a British resident being murdered in a non-terrorist homicide in 2013 was about 133 times as great as his or her chance of being murdered in a terrorist attack in the same year.

Conclusion

The chance of an American being murdered in a terrorist attack is greater than for a European resident of any of these five countries from 2001 through June 20th, 2017. Future terrorist attacks are unlikely to be as deadly as 9/11 even though there is a fat-tailed risk. When the unprecedented deadliness of 9/11 is excluded, the annual risk of being killed in a terrorist attack is reversed and residents of every European country except for Germany have a greater chance of being murdered than an American on U.S. soil.

The number of deaths from terrorism is so tiny that the addition or subtraction of another few murders can drastically change the annual chances of being murdered, which is evidence of how manageable the threat from terrorism actually is. If terrorism was as common or deadly as people erroneously believe it to be then another attack or two would not make a big difference in the annual chances.

A total of 3,370 residents of Belgium, France, Germany, Sweden, and the United Kingdom were murdered by terrorists from 1975 to June 20th, 2017. About 231 million people lived in those five countries in 2015. If they were combined into a single country, the annual chance of dying would be about 1 in 2.8 million per year over that period. The annual chance of being killed in a terrorist attack was a mere 1 in 8.3 million per year if those five European countries were judged as one state from 2001 through June 20th, 2017. That is a lower risk than the 1 in 1.6 million per year chance of an American being murdered in a terrorist attack on U.S. soil from 2001 through 2017. Even in Europe, terrorism is a relatively small and manageable threat.

There has been debate this week about how many libertarians are there. The answer is: it depends on how you measure it and how you define libertarian. The overwhelming body of literature, however, using a variety of different methods and different definitions, suggests that libertarians comprise about 10-20% of the population, but may range from 7-22%.

Furthermore, if one imposes the same level of ideological consistency on liberals, conservatives, and communitarians/populists that many do on libertarians, these groups too comprise similar shares of the population.

In this post I provide a brief overview of different methods academics have used to identify libertarians and what they found. Most methods start from the premise that libertarians are economically conservative and socially liberal. Despite this, different studies find fairly different results. What accounts for the difference?

1) First, people use different definitions of libertarians

2) Second, they use different questions in their analysis to identify libertarians

3) Third, they use very different statistical methods.

Let’s start with a few questions: How do you define a libertarian? Is there one concrete libertarian position on every policy issue?

What is the “libertarian position” on abortion? Is there one? What is the “libertarian position” on Social Security? Must a libertarian support abolishing the program, or might a libertarian support private accounts, or means testing, or sending it to the states instead? A researcher will find fewer libertarians in the electorate if they demand that libertarians support abolishing Social Security rather than means testing or privatizing it. 

Further, why are libertarians expected to conform to an ideological litmus test but conservatives and liberals are not? For instance, what is the “conservative position” on Social Security? Is there one? When researchers use rigid ideological definitions of liberals and conservatives, they too make up similar shares of the population as libertarians. Thus, as political scientist Jason Weeden has noted, researchers have to make fairly arbitrary decisions about where the cut-off points should be for the “libertarian,” “liberal,” or “conservative” position. This pre-judgement strongly determines how many libertarians researchers will find.

Next, did researchers simply ask people if they identify as libertarian, or did they ask them public policy questions (a better method)? If the latter, how many issue questions did they ask? Then, what questions did they ask?

For instance, what questions are used to determine if someone is “liberal on social issues”? For instance, did the researcher ask survey takers about legalizing marijuana or did the researcher ask about affirmative action for women in the workplace instead? Libertarians will answer these questions very differently and that will impact the number of libertarians researchers find.

While there is no perfect method, the fact that academics using a variety of different questions, definitions, and statistical techniques still find that the number is somewhere between 7-22% gives us some idea that the number of libertarians is considerably larger than 0.

Next, I give a brief overview of the scholarly research on the estimated share of libertarians, conservatives, liberals, and communitarians in the American electorate. I organize their findings by methods used starting with most empirically rigorous:

Ask people to answer a series of questions on a variety of policy topics and input their responses into a statistical algorithm

In theses studies, researchers ask survey respondents a variety of issue questions on economic and social/cultural issues. Then, they input people’s answers into a statistical clustering technique and allow an algorithm to find the number of libertarians. This is arguably the strongest method to identify libertarians.

  1. Political scientists Stanley Feldman and Christopher Johnson use a sophisticated statistical method to find ideological groups in the electorate (latent class analysis). They find six ideological groups based on answers to a variety of questions on economic and social issues. Feldman and Johnson’s results indicate that about:
  • 15% are likely libertarians (conservative on economics and liberal on social issues)
  • 23% are likely liberals
  • 17% are likely conservatives
  • 8% are communitarians/populists (liberal on economics and very conservative on social issues)
  • 13% are economic centrists but social liberals
  • 24% are economic centrists but lean socially conservative.   

Ask people to answer a series of questions on a variety of policy topics and plot their average responses on a 2-dimensional plot

In these studies, researchers 1) average responses to multiple questions on economics and then 2) average responses to multiple questions on social/cultural/identity/lifestyle issues. They then take the two averaged scores to plot respondents on a 2-dimensional graph (Economic Issues by Social Issues).

  1. Political scientist Jason Weeden averages people’s responses to questions on economics (income redistribution and government assistance to the poor) and on social issues (abortion, marijuana legalization, the morality of premarital sex) found in the General Social Survey. He finds:
  • 11% of Americans are libertarian
  • 11% are conservative
  • 14% are liberal
  • 9% are communitarian/populist
  • Remaining people are roughly evenly distributed between these groups

  1. Political Scientists William Clagget, Par Jason Engle, and Byron Shafer use answers to variety of questions on economics and the “culture” issues from the American National Election Studies from 1992-2008 to determine that:
  • 10% of the population is libertarian
  • 11% is populist
  • 30% is conservative
  • 30% is liberal
  • (Their methods are unclear and their “culture” index may include questions about spending on crime and support for affirmative action for women.)
  1. Political scientists William Maddow and Stuart Lilie average responses to three questions on government economic intervention and three questions about personal freedom from the American National Election Studies and find that:
  • 18% of the population is libertarian
  • 24% is liberal
  • 17% is conservative
  • 26% is communitarian 
  1. The Public Religion Research Institute added (rather than averaged) responses to 9 questions on social and economic issues and made a decision that cumulative scores of 9-25 would be coded as libertarian. Doing this they find that:
  • 7% of Americans are libertarian
  • 15% lean libertarian
  • 17% lean communalist
  • 7% are communalist
  • 54% have mixed attitudes
  1. For a previous Cato blog post, conducted a similar analyses and created three separate estimations. Each used averaged responses on economic questions, but were plotted alongside their average answers to either 1) social issues questions, 2) race/identity questions, and 3) criminal justice and racial equality questions.
  • Using economic and social issues I find:
    • 19% Libertarian
    • 20% Communitarian
    • 31% Conservative
    • 30% liberal
  • Using economic and race issues, I find:
    • 19% Libertarian
    • 15% Communitarian
    • 33% Conservative
    • 33% Liberal
  • Using economic and criminal justice issue positions I find:
    • 24% Libertarian
    • 15% Communitarian
    • 28% Conservative
    • 33% Liberal

Ask people to answer a question about economic policy and a question about social policy

While not as rigorous as asking people multiple questions, this is another quick way to observe the diversity of ideological opinion in surveys.

  1. Nate Silver of FiveThirtyEight using two questions from the General Social Survey: support for same-sex marriage and whether government ought to reduce income inequality with high taxes on the rich and income assistance to the poor, finds
  • 22% are libertarian
  • 25% conservative
  • 34% liberal
  • 20% communitarian 

  1. David Kirby and David Boaz use answers to 3 survey questions and find that 15% of the population are libertarians (agree that less government is better, and that free markets can better solve economic problems, and that we should be tolerant of different lifestyles)

Ask people if they identify as libertarian and know what the word means

The Pew Research Center found that 11% of Americans agree that the word “libertarian describes me well” and know libertarians “emphasize individual freedom by limiting the role of government.”

Ask people if they identify as socially liberal and fiscally conservative, an oft-used definition of libertarianism

A 2011 Reason-Rupe poll found that 8% of Americans said they were “conservative” on economic issues and also “liberal” on social issues. But the same method found 9% identified as “liberal” on both social and economic issues, 2% identified as liberal on economic issues and conservative on social issues, and 31% identified as conservative on both social and economic issues. They remainder were somewhere in the middle These results are consistent with polls from Rasmussen, and Gallup which finds a public preference for the word “conservative” over “liberal.” This means many people who endorse liberal policy are inclined to self-identify as moderate or conservative.

Conclusions

In sum, the overwhelming body of empirical evidence suggests that libertarians’ share of the electorate is likely somewhere between 10-20% and the conservative and liberal shares’ aren’t that much greater. Libertarians exist, quite a lot, but you have to know what you’re looking for.

Rumor has it that tomorrow is the day Senate Republican leaders will unveil the health care bill they have been busily assembling behind closed doors. So few details have emerged, President Trump could maybe learn something from Senate Majority Leader Mitch McConnell about how to prevent leaks. Even GOP senators are complaining they haven’t been allowed to see the bill.

Here are five questions I will be asking about the Senate health care bill if and when it sees the light of day.

  1. Would it repeal the parts of ObamaCare—specifically, community rating—that preclude secure access to health care for the sick by causing coverage to become worse for the sick and the Exchanges to collapse?
  2. Would it make health care more affordable, or just throw subsidies at unaffordable care?
  3. Would it actually sunset the Medicaid expansion, or keep the expansion alive long enough for a future Democratic Congress to rescue it?
  4. Tax cuts are almost irrelevant—how much of ObamaCare’s spending would it repeal?
  5. If it leaves major elements of ObamaCare in place, would it lead voters to blame the ongoing failure of those provisions on (supposed) free-market reforms?

Depending on how Senate Republicans—or at least, the select few who get to write major legislation—answer those questions, the bill could be a step in the right direction. Or it could be ObamaCare-lite.

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