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During Trump’s surprising presidential campaign, pundits became fond of pointing out that Trump’s supporters took his often-shocking rhetoric seriously, but not literally, whereas his opponents took his rhetoric literally, but not seriously. Today, however, it is obvious that one should take Trump’s words both seriously and literally. In his first month Trump has been busy matching actions to words, temporarily banning immigration from seven Muslim-majority nations and ordering sanctuary cities to detain illegal immigrants, launching work on the U.S.-Mexican border wall, and preparing to lift the ban on the CIA black sites where the United States carried out “enhanced interrogation techniques.”

For those who voted for Trump this first month must surely be a heady viewing experience. For much of the country, however, Trump’s efforts are taking things in the wrong direction, as even his most extreme campaign proposals become reality. From the perspective of the polls, Trump’s first month has met decidedly mixed reviews.

On immigration, for example, Trump signed a short-lived executive order threatening to halt federal funding to so-called “sanctuary cities” that offer protection to illegal immigrants if they do not detain illegal immigrants and turn them over to federal authorities. And before signing two executive orders directing the construction of the U.S.-Mexican border wall, Trump argued that the United States is “in the middle of a crisis border” and that “A nation without borders is not a nation.”

Most Americans see things differently. When asked about illegal immigrants currently living in the United States, a CBS News Poll this month found that 74% of the public thinks they should be allowed to stay, while just 22% thinks they should be required to leave. 61% believe illegal immigrants should eventually be allowed to apply for citizenship. The same poll found that 59% oppose Trump’s plan to build a wall along the U.S.-Mexico border, with 37% favoring it.

On the question of torture Trump faces a polarized public. Just yesterday Trump reaffirmed his belief in the utility of torture, telling an interviewer that the United States must “fight fire with fire” and that “Absolutely I feel it works.” Many Americans, however, are not so sure. A recent poll by the Pew Research Center finds that 49% of the public does not believe there are any circumstances that justify torture; while 48% believes that there are some circumstances that do. When asked about specific interrogation techniques, Americans have tended to be even less supportive. Gallup polls from 2005, for example, found 82% opposed water boarding, 79% opposed keeping prisoners naked and chained in uncomfortable positions. 62% felt it was wrong to threaten to transfer a prisoner to a country know for using torture – relevant given Trump’s order to reestablish overseas CIA black sites, which were used for just such purposes.

On the question of banning Muslims from entering the United States Trump’s support is far from overwhelming. Earlier this month a Quinnipiac University poll found that 48% support suspending immigration from “terror prone regions” compared to 42% who oppose doing so. This represents a slip from the summer of 2016, when a NBC News/Survey Monkey poll taken days after the Orlando nightclub attack found 50% support for Trump’s call for a ban, with 46% opposing.

It is too early to make bold predictions about the popularity of Trump’s policies down the road or what the polls today might tell us about how the polls will look two or four years from now. Even so, though Trump is enjoying the rush of power that comes with the Oval Office, his administration would do well to take these poll numbers both literally and seriously. Racking up policy “wins” that don’t have majority support is a sure way to lose political capital in Washington and a terrible strategy for getting reelected.

This goes double for Trump, given his historically low approval and favorability ratings. Trump is the first elected president with an approval rating under 50% (42% in the latest Gallup poll) and the latest Pew Research Center poll has his net favorable/unfavorable rating at minus 16%. Trump, with his mobile phone and millions of Twitter followers, may believe he can use the bully pulpit to win hearts and minds. In this, however, he will learn that he is sadly mistaken. Scholars of presidential communication have long since shown that presidents with approval ratings below 50% find their ability to move public opinion vastly diminished, if not completely destroyed.

At his current approval levels, it doesn’t matter how many tweets Trump fires off, he is unlikely to turn opposition toward unpopular programs into support. On the other hand, Trump will fare much better as he moves on to policies that enjoy majority support to begin with like his infrastructure package, tax cuts for the middle class, spending more for defense, or improving veterans’ services.

In the final analysis, assessments of Trump’s presidency won’t hinge primarily on attitudes towards specific policies but on the public’s judgments of the broader sweep of economic and social trends over his time in office. And for that we shall have to wait. 

Libertarians often point out that Progressive-era President Woodrow Wilson (in office 1913-1921), together with his other bad qualities, was thoroughly awful on the subject of civil rights for black Americans: he re-segregated the federal civil service, demoted and snubbed black federal officials and dignitaries, and wrote favorably about the Ku Klux Klan, even helping bring in D.W. Griffith’s Klan-fest “The Birth of a Nation” as the first motion picture to be screened in the White House. Soon a revived version of the Klan had picked up enormous momentum, peaking by the early 1920s at a membership of millions, hostile not just to blacks but to Catholics, Jews, urban intellectuals, and cosmopolitan influences in general.

Then the spell broke. In the second half of the 1920s the Klan’s ranks collapsed, and by 1930 it was but a shadow of its former self, down from millions to perhaps tens of thousands. What happened?

Many things happened, but one of them was the presidency of Calvin Coolidge, who served from 1923 to 1929. The Coolidge Presidential Foundation recently published a piece by University of Baltimore president Kurt Schmoke, formerly mayor of Baltimore, entitled “The Little Known History of Coolidge and Civil Rights.” As Schmoke makes clear, the Vermont-born president’s record was a shining spot in an era that otherwise reflected little credit on American race relations. 

Consider, for example, the practice of lynchingwidespread and informally tolerated around much of the nation. With the sole exception of the war year of 1917, which had 36, America saw at least 50 lynchings in each year between 1883 and 1922, the last year before Coolidge took office; the recent peak had come at war’s end with 70 lynchings in 1919 followed by a drop to 51 by 1922.  But 1923, the year Coolidge took office, saw a drop to 29, and never again was the number to rise above the mid-20s; in his final year, 1929, there were 7. In the 1930s, Congress debated a national anti-lynching law, but Democratic president Franklin D. Roosevelt was notably tepid toward the idea. Not until 1936 was the number of lynchings consistently reduced to below 10 a year.

Coolidge took a particular interest in the cause of Howard University in Washington, D.C. And he spoke out on behalf of the interests of blacks, the foreign born, and other minorities on many other occasions as well, grounding his views in a civic patriotism that held its distance from nationalist passions of blood and soil. Writes Schmoke: 

Coolidge gave his most pointed rebuke to the Klan spirit during his 1925 speech to the American Legion in Omaha, where he said “whether one traces his Americanism back three centuries to the Mayflower, or three years of the steerage, is not half so important as whether his Americanism of to-day is real and genuine. No matter by what various crafts we came here, we are all now in the same boat.”

Something to think about on this President’s Day.

It’s nice to combine a long weekend with a chance to pick up some bargain kitchenware; but outside of that, what’s the point of Presidents’ Day? Modern presidents are ubiquitous and inescapable: hectoring us from above every treadmill at the gym and meddling in every area of American life, from where we get our groceries to which bathroom we’re allowed to use. It’s not as if we’ll forget they exist without setting aside a special day to salute them. Besides, neither the individual presidents we inflict on ourselves every four to eight years nor the institution itself is worth celebrating.

It’s some consolation, then, that, at the federal level at least, there’s no such thing as “Presidents’ Day.” The official designation for the third Monday in February is “Washington’s Birthday.” That’s been the case since one of our less meddlesome presidents, bewhiskered nonentity Rutherford B. Hayes, signed the holiday into law in 1879. 

Granted, it hasn’t been observed on the first president’s actual birthday, February 22, since the Nixon administration. With the 1968 Uniform Monday Holiday Act, Congress sacrificed accuracy in order to give Americans the benefit of three-day weekends, stipulating that “Washington’s Birthday” would be observed on February’s third Monday.

Still, every so often, some civic-minded busybody insists that it’s presidents—or worse, the presidency in general—that we should be commemorating. In the late ‘90s, for example, Sen. Dick Durbin (D-Ill.) introduced a bill (cosponsored by Ted Kennedy and Tom Daschle) to redesignate “the legal public holiday of Washington’s Birthday as Presidents’ Day … in recognition of the importance of the institution of the Presidency and the contributions that Presidents have made to our nation’s development and the principles of freedom and democracy.”

Bah, humbug. Our presidents—especially the “great” ones—have more often trampled those principles than upheld them. When scholars rank the presidents, their “Top 10” lists typically include a Murderers’ Row of chief executives whose “contributions” to freedom and democracy include Japanese internment, Indian removal, unconstitutional wars, illegal spying, and the imprisonment of peaceful dissenters.

And while there’s no denying “the importance of the institution,” what freedom and self-government we still enjoy persists in spite, not because of, our presidential system. In a pioneering 1990 article, “The Perils of Presidentialism,” the political scientist Juan Linz argued that presidential systems—those that feature a powerful executive, directly elected by the people and serving for a fixed term—are prone to catastrophic breakdowns and degeneration into autocratic rule. By combining the roles of head of state and head of government in one figure, such systems encourage presidents to imagine themselves the living embodiment of the popular will. The president “becomes the focus for whatever exaggerated expectations his supporters may harbor,” Linz writes, and in turn may “conflate his supporters with ‘the people’ as a whole.”

Worse still, the rigidity of presidential terms makes it far harder to throw the bums out if they go rogue. Prime ministers serve at the pleasure of parliament and can even be replaced by their own party. But in all of U.S. constitutional history, we’ve never successfully used the impeachment process to remove a president (Nixon quit). Unless he’s catatonic or certifiable, we’re stuck with him for the duration. 

Presidentialism’s perils have been especially apparent throughout Latin America, where populist despots invoke “democracy” in the service of one-man rule. But it’s a flawed scheme wherever it operates. In his 2014 book The Once and Future King, the legal scholar F.H. Buckley found that “presidentialism is significantly and strongly correlated with less political freedom,” and concluded that “what makes America exceptional is that, for more than two hundred years, it has remained free while yet presidential.” Maybe our luck will continue to hold, but that’s no reason to applaud an institution that, all things considered, wasn’t the Founding Fathers’ best work.

There’s a better case for returning to the holiday’s original purpose: recognition of George Washington, a president distinguished by his reluctance to wield power: the proverbial “Man Who Would Not Be King.”

The Constitution “must mark the line of my official conduct,” Washington noted at the beginning of his administration, and frequently demurred when unsure of the extent of his lawful power—even hesitating to launch offensive action against hostile Indian tribes.

He was a model of restraint in his personal conduct as well. As a teenager, Washington copied in his own hand 110 precepts on etiquette: “The Rules of Civility and Decent Behavior in Company and Conversation.” Some of those rules make for an illuminating contrast with the deportment of our current chief executive:

  • Washington’s “Rules”: “Undertake not what you cannot perform but be careful to keep your promise.”

       Trump: “If I win, all of the bad things happening in the U.S. will be rapidly reversed!”
 

  • Washington’s “Rules”: “Be not immodest in urging your friends to discover a secret.”

       Trump: “check out sex tape”
 

  • Washington’s “Rules”: “When in company, put not your hands to any part of the body not usually discovered.”

       Trump: “You can do anything. Grab ’em by the…”  er, you know.

Henry Adams famously remarked that the descent from “President Washington to President Grant was alone evidence enough to upset Darwin.” He didn’t know the half of it. This Monday, on Washington’s Birthday (observed), take a moment to contemplate our long downhill slide—and worry about where we’ll end up.

Two years ago on Presidents’ Day (which is legally Washington’s Birthday) I talked about my book The Libertarian Mind at the National Constitution Center (video). As part of that appearance I wrote about America’s libertarian heritage in the Philadelphia Inquirer:

Where better than Philadelphia on Presidents’ Day to talk about liberty and reviving the American tradition of freedom and limited government.

Thomas Jefferson said that when he wrote the Declaration of Independence in June of 1776, he had no book or pamphlet at hand but simply set down “an expression of the American mind.” With its foundation on the equal and inalienable rights of all people, including life, liberty, and the pursuit of happiness, the Declaration also reflects the libertarian mind.

Indeed, the principles of the Declaration are so closely associated with libertarianism that the Chinese edition of my previous book, Libertarianism: A Primer, features a cover photograph of the famous room in Independence Hall, complete with Windsor chairs and green tablecloths.

Libertarianism is the philosophy of freedom. It has, in different form throughout history, inspired people who fought for freedom, dignity, and individual rights — the early advocates of religious tolerance, the opponents of absolute monarchy, the American revolutionaries, the abolitionists, antiwar advocates and anti-imperialists, opponents of National Socialism and communism….

I believe that the simple, timeless principles of the American Revolution — individual liberty, limited government, and free markets — are even more powerful and more important in the world of instant communication, global markets, and unprecedented access to information, a world that Jefferson or Madison could not have imagined. Libertarianism is the essential framework for a future of life, liberty, and the pursuit of happiness.

Mainstream media reporting on infrastructure seems to be driven by the lobby groups that are pushing for more federal spending. A Washington Post article today reflects two popular lobbyist themes: “the bridges are falling down” and “the federal government needs to solve the problem.” For today’s story, the Post could have saved the reporter’s salary and simply asked the press office at the American Road and Transportation Builders Association (ARTBA) to write it.  

The headline, “More than 55,000 bridges need repair or replacement,” captures the bridges-falling-down theme. That figure is the number of “structurally deficient” bridges, which the Post sources from the ARTBA. But the story does not mention that these bridges (56,007 according to federal data) are 9.1 percent of the nation’s 614,387 bridges, which is the lowest such percentage in 24 years. The chart below shows that the share of bridges in this category fell from 21.7 percent in 1992 to just 9.1 percent in 2016.

That positive trend undermines the scary scenario that most articles want to convene, so it is not mentioned. By the way, “structurally deficient” does not mean unsafe.

The other lobbyist theme is captured by the Post in a quote from Rep. Bill Shuster, “We at the national level have to figure out how we’re going to make these investments.”

No we don’t. Of the 600,000 bridges, 99 percent are owned by state and local governments. Responsibility lies with the owner. The states have a powerful ability to tax, and about half of them have raised their gas taxes in just the past five years to fund highways and bridges. The states can also borrow or privatize to steer additional funds to infrastructure.

The Post story notes the large differences in bridge maintenance across the states. Apparently, 23 percent of bridges in Rhode Island are structurally deficient, but just 2 percent are in Texas. That does not suggest a need for federal intervention, but rather that Rhode Island’s leaders have been negligent.

It also suggests that a new federal spending effort to reduce the number of structurally deficit bridges would be unfair. It would reward irresponsible states such as Rhode Island, and penalize states such as Texas that have already prioritized bridge maintenance.

    

Donald Trump has of late been complaining that the media has been underplaying the threat presented by Islamist terrorism.     

Although one could question whether a hazard that has inflicted six deaths per year in the United States since 9/11 actually represents something that could be called a “threat,” the New York Times in its Sunday, February 5 edition presented on its front page an exercise in terrorism fear-mongering that should surely warm Trump’s heart, if any.

The article, “Not ‘Lone Wolves’ After All” by Rukmini Callimachi seeks in the most ominous tones to demonstrate “How ISIS Guides World’s Terror Plots From Afar.”    

The article does an excellent job at showing how a few ISIS operatives have been trying through internet communication to stir up violence by sympathetic would-be jihadists around the world. However, the evidence from the article includes enough information to indicate that this effort has been an abject, even almost comedic, failure.

The information could have been framed that way, but, one darkly suspects, it might not have made the Sunday front page if it had been.

Callimachi argues that “a pattern has emerged.” In this, a supporter “initially tries to reach Syria, but is either blocked by the authorities in the home country or else turned back from the border.”   

This could be taken to be an indication of the pronounced decline ISIS is experiencing. After all, the group’s whole point and appeal, proclaimed repeatedly for years, is to establish a viable caliphate in the Middle East.

But Callimachi espies a nefarious upside for the vicious group: “Under the instructions of a handler in Syria or Iraq, the person then begins planning an attack at home.” 

The article is centered on an effort by “virtual coaches” in ISIS over no less than 17 months to get the apparent leader of a small band of sympathizers in India to commit some violence in its name. Apparently working with a congenial criminal network in India, one of the coaches was able to supply the distant conspirators with two pistols that proved to be rusty accompanied by 20 essentially irrelevant bullets.     

And only at the end of the article do we find out that the police were able through wiretaps to close down the whole scheme shortly after the boys in the band found they could not fabricate bombs from material surreptitiously supplied by their handler following the instructions he apparently posted on YouTube: “We could not succeed in making powder, as it became jellylike paste,” one lamented. Far from dedicated jihadists, the plotters cooperatively spilled all they knew about the plans and connections to the authorities after they were arrested.  

The article is peppered with similar tales. One guy shoots himself in leg, another was supposed to drive over people but attacks with an ax instead because he didn’t have a driving permit, a third detonates a bomb prematurely killing only himself, and an explosive in a suicide vest proves insufficiently lethal to smash a nearby flowerpot.  

About the only “success” for what Callimachi calls the “cybercoaches” seems to have been the slitting of the throat of an 85-year-old priest in northern France—perhaps the most pointless and thoroughly counterproductive act of terrorism in history. That is, really, really stupid.

The only example of cybercoach work in the United States that is dealt with in any detail in the article is a case in Rochester, NY, in which the 25-year-old Emanuel Lutchman, looking for ways to get to Syria, was encouraged by his ISIS handler to do some local terrorism to demonstrate his devotion to the cause. The idea was to launch a machete attack on a bar on New Year’s eve somehow killing, in the words of his distant, disembodied coach, “1000000s of kuffar”—infidels.

Left out of the article is that Lutchman was rather inadequate for the mission. He had spent most of the previous ten years in prison for various infractions, the first of which was robbing a man of such unimpressive items as his cell phone, baseball hat, bus pass, library card, and cigarettes. He was also mentally ill and was apparently no longer taking his prescribed medication. He had tried to commit suicide several times, most recently by stabbing himself in the stomach. He had no money, job, or resources, and he was given to picking up cigarette butts outside the targeted bar from which he had repeatedly been shooed away by its irritated owner who characterized him as an “aggressive panhandler.”

Lutchman attracted the attention of the FBI when he mindlessly posted favorable commentary about violent jihad and about ISIS on the web, and he soon found himself at the center of a terrorist cell of four. The other three were all FBI operatives. They worked to facilitate his (or his handler’s) addled fantasies, even shelling out the $40 Lutchman didn’t have to buy a machete and other terrorist equipment from a local Walmart.

Any terrorist “threat” presented by the hapless Lutchman and his remote cybercoach, then, was pretty modest. But you’d never know that by reading Callimachi. Or by listening to Trump.

If you did not see President Trump’s press conference yesterday, you might want to watch.  It was quite the spectacle.  His statements on “Buy America” issues may not have been the highlight of the event, but they raise some interesting questions.  Here’s what he said:

We have also taken steps to begin construction of the Keystone Pipeline and Dakota Access Pipelines. Thousands and thousands of jobs, and put new buy American measures in place to require American steel for American pipelines. In other words, they build a pipeline in this country, and we use the powers of government to make that pipeline happen, we want them to use American steel. And they are willing to do that, but nobody ever asked before I came along. Even this order was drawn and they didn’t say that.

… And I’m reading the order, I’m saying, why aren’t we using American steel? And they said, that’s a good idea, we put it in. 

I mentioned this issue on this blog a couple weeks ago.  As I pointed out then, Trump is saying that he put measures in place to require pipeline companies to use American steel, but the Presidential memo he signed does not, in fact, do this.  Instead, it instructs the Secretary of Commerce, as part of an inter-agency consultation, to “develop a plan” under which pipelines “use materials and equipment produced in the United States, to the maximum extent possible and to the extent permitted by law.”

This is a much more limited approach than what he is publicly suggesting. Let’s look at how this general policy is likely to work in practice, if applied. Take the example of the Keystone XL pipeline. Here’s what a Reuters article had to say about this pipeline’s steel:

When U.S. President Donald Trump signed orders to revive two controversial energy pipeline projects this week, he pledged to require new pipelines to use American-made steel, a gesture to workers in the hard-hit industry who helped propel him to power.

But U.S. steelmakers will receive negligible benefit from the multi-billion dollar Keystone XL project, one of the two projects Trump ordered to proceed, because they have limited ability to meet the stringent materials requirements for the TransCanada line.

Meanwhile, in the quiet prairie town of Gascoyne, North Dakota, deer wander among gleaming stacks of steel tubing intended for the Keystone pipeline. The company bought the material years ago when the U.S. debate was raging over whether the project should go ahead.

About half of the pipe was forged in Arkansas, at a plant owned by India’s Welspun. About a quarter came from a Russian-owned plant in the Canadian province of Saskatchewan, and the rest came from Italy and India.

So according to this article, while some of the steel for the pipeline is from U.S. sources, U.S. steelmakers could not produce all of the steel that was needed, and therefore TransCanada had to buy it from foreign sources.  As a result, using exclusively American steel was not possible here.  This may violate Trump’s public pronouncements, but according to the terms of the Presidential memo (use American inputs “to the maximum extent possible”), it is likely that the Keystone XL pipeline would be allowed to use this foreign steel.

With all this in mind, where is U.S. trade policy headed?  Is it going to reflect the declarations of policy that Trump makes at press conferences, which take economic nationalism further than we have seen it in a long time?  Or is it going to be more like the carefully worded memos that someone who knows a bit about trade law and policy is writing and having Trump sign, which only go a little beyond our existing protectionism?  There’s a large gap between these two.  In the coming months, we will see who is hired for key positions at the main trade agencies, and we will try to guide them away from the protectionist extreme.

In a recent working paper, economists Thomas Buchmueller and Colleen Cary find that one particular kind of restriction does reduce opioid misuse among Medicare beneficiaries:

The misuse of prescription opioids has become a serious epidemic in the US. In response, states have implemented Prescription Drug Monitoring Programs (PDMPs), which record a patient’s opioid prescribing history. While few providers participated in early systems, states have recently begun to require providers to access the PDMP under certain circumstances. We find that “must access” PDMPs significantly reduce measures of misuse in Medicare Part D.

Yet, they also find

no statistically significant effect [of must access PDMP’s] on a key medical outcome: opioid poisoning incidents.

How is this possible?

The simplest explanation is that, despite all the hype, prescription opioids are not that dangerous, even in heavy doses, when used under medical supervision. Instead, most poisonings reflect use of diverted prescription opioids, or black market opioids like heroin, that users obtain when doctors cut them off from prescription opioids. These alternate sources may be adulterated, of higher dosage than the user realized, or consumed with other drugs that generate adverse reactions.

Under this interpretation, restrictions on opioid prescribing might even increase opioid poisonings. 

The plot thickens in the ongoing battle for the Consumer Financial Protection Bureau, the controversial agency created in the wake of the 2008 financial crisis.  Yesterday, a federal appeals court decided it would grant rehearing of last year’s case, PHH v. CFPB, which held the agency’s structure to be unconstitutional.  The decision issued last year not only ruled the agency’s structure to be unconstitutional, but also placed the director under the president’s authority, giving the president the power to fire the director at will.  Now that the court will rehear the case, its earlier decision is no longer binding, meaning the president can no longer rely on it if he wishes fire Director Richard Cordray.

The bureau is the brain-child of Massachusetts Senator Elizabeth Warren, but even the progressive firebrand did not dream up an agency as powerful as the one that congress ultimately created.  Senator Warren, then a private citizen, initially proposed a commission structure.  While independent commissions, such as the Securities and Exchange Commission (SEC), are constitutionally questionable (they are not directly accountable to the President or Congress, and are therefore outside the three branches of government established by the Constitution), they have the benefit of both precedent and a measure of checks and balances.  As Judge Kavanaugh noted in the initial PHH v. CFPB decision, a structure like the SEC’s allows the commissioners to serve as checks on each other.  The SEC is by law bi-partisan, with no more than three of the five seats filled by members of the same party, and there is pressure for the chair to get consensus from all five commissioners or risk a reputation for divisiveness and partisanship.  Other regulators, like the Commodity Futures Trading Commission and the Federal Trade Commission, have similar structures.

The CFPB, however, was ultimately structured as a bureau headed by a single director, who is removable only for cause.  As I have discussed previously, the problem is not only that this structure is unconstitutional (which is no small problem), or that its mandate to pursue “abuse” practices is frighteningly vague, but that the current director, Richard Cordray, has embraced his power with gusto, expanding the agency’s authority as far as possible (and even further). 

The fall out from the initial PHH v. CFPB decision and the strange intricacies of the Dodd-Frank Act have provided terrific fodder for legal intellectuals everywhere.  The unusual structure of the CFPB coupled with the current president’s unconventional style have taken us to a new frontier, legally speaking. For example, one scholar has argued that the president does not need the court’s permission to dismiss Cordray for cause; because each branch of the government has the obligation to uphold the Constitution, the president arguably could determine on his own that the structure is unconstitutional and that he therefore does not need the judiciary’s permission to remove the current director.  There are also reasons to believe that the president has sufficient support to remove the director for cause (which he has always had the power to do).  Either of these actions would be an extremely bold move by the president, without historical precedent.  And this is where President Trump’s temperament and style come into play; this is not a president terribly concerned with whether he is being too bold.

If the appellate court rules that the CFPB is constitutional, it is likely that PHH will seek to appeal that decision to the Supreme Court (and it is reasonable to think the Court would take the case).  If it rules that it is unconstitutional, typically the agency would be expected to seek appeal itself.  But Dodd-Frank allows the CFPB to pursue litigation in the Supreme Court only with the permission of the attorney general – a presidential appointee.  This raises the question: does Attorney General Sessions give permission?  If not, what happens? 

It is also possible that the appellate court won’t rule on the constitutional question at all.  In the original case, decided by a panel of three judges, one judge declined to rule on the constitutionality of the agency, instead finding that the agency’s actions were improper and that that finding meant there was no need to consider the constitutional question.  The court rehearing the case may make a similar determination, leaving the constitutionality of the agency still an open question for the judiciary.

It is not at all surprising that the D.C. Circuit Court opted to rehear this case.  The case presents important questions of constitutional law.  It does mean that this already long story will only get longer, and more complex.  Even if the court decides not to rule on the constitutional question, it is likely that this open issue will draw other litigants.  I expect a long battle.  Unless, of course, congress takes action first.

Late yesterday The Hill posted a short op-ed I wrote on President Trump’s nomination of Judge Neal Gorsuch to fill the seat of the late Justice Antonin Scalia. As often happens, a couple of editorial changes, especially in the title, muted somewhat the central point of the piece. But even were that not so, that point is worth further attention.

It concerns judicial independence. As I wrote, facing a nominee with impeccable qualifications, Democrats are now crafting an indirect assault against Judge Gorsuch. Thus, they’re pointing to the president’s outrageous attacks on the judiciary, among other things he’s said, and contending that he’s imposed a “litmus test” on the nominee. So they’re demanding that Judge Gorsuch “very explicitly and directly” disavow the president’s remarks, which he has already done respectfully, but in addition that he “very specifically” make his own policy views known in the upcoming confirmation hearings (which we’ve just learned will begin on March 20).

Not only does that second demand fundamentally misconceive the role of a judge, but judicial litmus tests mark the end of judicial independence. If a prospective or actual nominee can be compelled by a president or by the Senate Judiciary Committee to state his policy views with a measure of specificity as a condition of being either nominated or confirmed, then to that extent future cases will be decided not on the law but by politics in the nomination and confirmation processes. And that will be the end of the rule of law, for when all is politics, nothing is law.

Admittedly, this is a dilemma of our system, whereby we select judges under something like a veil of ignorance. But it is inescapable, and we have to live with it because the alternative is worse. Usually, of course, we look for indirect indications of a prospective nominee’s views, but in the case of appellate court judges, those are often not instructive because good judges are bound by law and precedent, more so in the latter case than if they were on the Supreme Court.

And so we go through this “confirmation theater,” which is relatively recent and usually reveals very little about how a nominee will rule in future. That we do, however, is a mark of something much deeper and more disturbing—how divided we are about our fundamental constitutional principles, about which I have written elsewhere in detail and in this context. Were there more agreement we could focus simply on a nominee’s qualifications. With Judge Gorsuch’s confirmation, however, perhaps we will start slowly to move toward resolving those deeper disagreements, for which he is eminently qualified.

To see how little is left of one of our most important rights, the freedom of association, look no further than to today’s unanimous decision by the Washington State Supreme Court upholding a lower court’s ruling that florist Baronelle Stutzman was guilty of violating the Washington Law Against Discrimination (WLAD) when she declined, on religious grounds, to provide floral arrangements for one of her regular customer’s same-sex wedding. The lower court had found Stutzman personally liable and had awarded the plaintiffs permanent injunctive relief, actual monetary damages, attorneys’ fees, and costs.

This breathtaking part of the Supreme Court’s conclusion is worth quoting in full:

We also hold that the WLAD may be enforced against Stutzman because it does not infringe any constitutional protection. As applied in this case, the WLAD does not compel speech or association. And assuming that it substantially burdens Stutzman’s religious free exercise, the WLAD does not violate her right to religious free exercise under either the First Amendment or article I, section 11 because it is a neutral, generally applicable law that serves our state government’s compelling interest in eradicating discrimination in public accommodations.

We have here yet another striking example of how modern state statutory anti-discrimination law has come to trump a host of federal constitutional rights, including speech, association, and religious free exercise. It’s not too much to say that the Constitution’s Faustian accommodation of slavery is today consuming the Constitution itself.

Consider simply the freedom of association right. That liberty in a free society ensures the right of private parties to associate, as against third parties, and the right not to associate as well—that is, the right to discriminate for any reason, good or bad, or no reason at all. The exceptions at common law were for monopolies and common carriers. And if you held your business as “open to the public” you generally had to honor that, though you still could negotiate over services.

Slavery, of course, was a flat-out violation of freedom of association—indeed, it was the very essence of forced association. But Jim Crow was little better since it amounted to forced dis-association.  It was finally ended, legally, by the 1964 Civil Rights Act. But that Act prohibited not simply public but private discrimination as well in a range of contexts and on a range of grounds, both of which have expanded over the years. The prohibition of private discrimination was probably necessary at the time to break the back of institutionalized racism in the South, but its legacy has brought us to today’s decision, where florists, bakers, caterers, and even religious organizations can be forced to participate in events that offend their religious beliefs.

Court’s haven’t yet compelled pastors to officiate at ceremonies that are inconsistent with their beliefs, but we have heard calls for eliminating the tax-exempt status of their institutions. Such is the wrath of the crowd that wants our every act to be circumscribed by law—their law, of course. And they’re prepared, as here, to force their association on unwilling parties even when there are plenty of other businesses anxious to serve them. As I concluded a Wall Street Journal piece on this subject a while ago:

No one enjoys the sting of discrimination or rejection. But neither does anyone like to be forced into uncomfortable situations, especially those that offend deeply held religious beliefs. In the end, who here is forcing whom? A society that cannot tolerate differing views—and respect the live-and-let-live principle—will not long be free.

Amen.

As government workers – though only about a third of private-sector office workers – get a day off Monday for Presidents’ Day (legally, though not in fact, George Washington’s Birthday), I thought I’d offer some reading about presidents.

First, my own tribute to our first president, the man who led America in war and peace and who gave up power to make us a republic:

Give the last word to Washington’s great adversary, King George III. The king asked his American painter, Benjamin West, what Washington would do after winning independence. West replied, “They say he will return to his farm.”

“If he does that,” the incredulous monarch said, “he will be the greatest man in the world.”

Then, of course, Gene Healy’s book The Cult of the Presidency, which argues that 200 years after Washington, “presidential candidates talk as if they’re running for a job that’s a combination of guardian angel, shaman, and supreme warlord of the earth.” Buy it today, in multiple formats.

Gene updated that argument with a short ebook, False Idol: Barack Obama and the Continuing Cult of the Presidency. As they say, start reading in minutes!

And then you can read my short response to Politico’s 2010 question, “Who were the best and worst presidents?” I noted:

Presidential scholars love presidents who expand the size, scope and power of government. Thus they put the Roosevelts at the top of the list. And they rate Woodrow Wilson – the anti-Madisonian president who gave us the entirely unnecessary World War I, which led to communism, National Socialism, World War II, and the Cold War –8th. Now there’s a record for President Obama to aspire to! Create a century of war and terrorism, and you can move up from 15th to 8th.

Hmmm, maybe it would be better to just read a biography of George Washington.

That is the question asked by Scott Alexander and John Cochrane in discussing high school education, college and infrastructure spending. Despite rising funding, it is not clear outcomes are improving.

Scott highlights the example of K-through-12 public education where spending has increased substantially since 1970 but test scores have remained stagnant. He asks:

Which would you prefer? Sending your child to a 2016 school? Or sending your child to a 1975 school, and getting a check for $5,000 every year?

On college he presents a similar counterfactual:

Would you rather graduate from a modern college, or graduate from a college more like the one your parents went to, plus get a check for $72,000?  (or, more realistically, have $72,000 less in student loans to pay off)

He also highlights the rising cost of infrastructure spending through the example of a New York City subway:

1900…it’s about the inflation-adjusted equivalent of $100 million/kilometer today… In contrast…a new New York subway line being opened this year costs about $2.2 billion per kilometer

As Scott outlines, the underlying crisis here is made all the worse by the fact that new technologies and globalization should have put downward pressure on the costs of provision.

Two questions arise: why is this happening and what can be done about it?

This requires a huge amount of research. Certainly it cannot be answered in a blog post. But I want to suggest an analytical framework for thinking about these examples that can be applied in each case to work out what is going wrong. This is all the more necessary because the absence of meaningful prices in the public sector makes measuring productivity much more difficult than in the full market sector of the economy.

Rather than merely comparing money spent to outcomes, we can break things down as follows:

Taxpayer dollars -> Inputs -> Production process -> Outputs -> Outcomes (quality-adjusted outputs)

Take schooling. We pay money in through taxes.  These are used to fund the labor (teachers, administrators etc), to build schools, and to pay for the goods and services used within schools. The schools then operate. And those inputs work to produce measurable outputs in terms of number of children being taught, hours of teaching, exams prepared for etc. But what we really care about is outcomes, which are linked to but not quite the same thing (think test scores). This is best thought of as a measure of quality-adjusted output. Productivity (to the extent we can measure it) can be thought of as the ratio of outputs to inputs, whereas what we ultimately care about here is improving the effectiveness of money spent (outcomes over taxpayer dollars).

This framework allows us to posit different theses (which are not mutually exclusive) for why taxpayer dollars have gone up but outcomes stagnated, which we can test empirically:

  1. The cost of inputs, such as teachers etc, may have risen substantially
  2. The number of inputs necessary may have risen (more administrators and other inputs not previously needed)
  3. Productivity (the ability to turn inputs into outputs) may have fallen
  4. Quality of outputs may have declined (e.g. children’s lessons are now worse than they were before)

My hunch is that there are probably a lot of people doing things in education and infrastructure preparation that have added to the number of inputs necessary but which do little to affect the quality-adjusted outputs we care about directly (think a lot of environmental audits and reports, compliance with regulation etc.)

But before jumping to conclusions, we should really try to measure outputs and inputs directly. In the UK, it was historically assumed that public service outputs were the same as public service inputs (implying stagnant productivity). But in recent years the Office for National Statistics there has put in a lot of effort to try to measure the quality and quantity of public service outputs, albeit imperfectly. It has actually proven very useful. They have produced interesting work which found public service productivity improved in each of the first four years of so-called “austerity,” for example.

Unless I have missed it entirely, similar indices are not currently constructed here. But if we really want to get to the bottom of why taxpayer funding is not producing better outcomes, we need to shine a light on the public sector production process to see where things are breaking down. 

Today the Washington Supreme Court unanimously upheld the fines against florist Baronelle Stutzman for refusing to sell flowers to a long-time customer for his same-sex wedding. Even though the court acknowledged that Stutzman “has served gay and lesbian customers in the past for other, non-wedding-related flower orders,” it found that she had violated the state’s public-accommodations law. In doing so, it rejected her claims regarding the freedom of speech, association, and religious exercise in the face of a legal requirement that businesses not discriminate on the basis of sexual orientation.

I’m still working through the opinion, but it’s all pretty standard – and disappointing – stuff. Notably the court cites and rejects Cato’s brief regarding the freedom of expression, indeed rejecting even the idea that floristry is an expressive art. As I wrote in a blog post explaining this point:

Although floristry may not initially appear to be speech to some, it’s a form of artistic expression that’s constitutionally protected. There are numerous floristry schools throughout the world that teach students how to express themselves through their work, and even the Arts Council of Great Britain has recognized the significance of the Royal Horticultural Society’s library, which documents the history, art, and writing of gardening.

The U.S. Supreme Court has long recognized that the First Amendment protects artistic as well as verbal expression, and that protection should likewise extend to floristry—even if it’s not ideological and even if it’s done for commercial purposes. The Supreme Court declared more than 70 years ago that “[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.” West Virginia Board of Education v. Barnette (1943). And the Court ruled in Wooley v. Maynard—the 1977 “Live Free or Die” license-plate case out of New Hampshire—that forcing people to speak is just as unconstitutional as preventing or censoring speech.

Also notably, Washington lacks a Religious Freedom Restoration Act (which is what saved the claims in recent high-profile cases Hobby Lobby and Zubik/Little Sisters of the Poor), so it’s not surprising that Stutzman’s free-exercise claim failed in the face of a generally applicable law. Of course, even a state RFRA failed to save a New Mexico photographer who had similarly worked for gay clients but didn’t want to work a same-sex wedding.

This isn’t the last that we’ll hear about the case; Stutzman’s lawyers have already announced that they’ll ask the U.S. Supreme Court to take it up.

But legalisms aside, these sorts of developments aren’t healthy for our society. There are scores of florists, photographers, and other vendors who would be happy to work all sorts of ceremonies; why do we need to bend every last minority dissenter to the wheel of prevailing ideology? Why can’t we be tolerant and just live and let live?

Despite making numerous comments during the 2016 presidential campaign that indicated he favored a much more realistic foreign policy for the United States, Donald Trump continues to beat a hasty retreat from that position.  His actions once he became president point to a continuation of the stale, needlessly confrontational approach that his predecessors adopted—an approach that has caused so much grief for the American people.

I’ve discussed elsewhere the fawning efforts of Trump and Secretary of Defense James Mattis to “reassure” free-riding U.S. allies of the administration’s undying devotion to the status quo.  Those actions followed an extremely belligerent stance adopted toward Iran, the country that policymakers who are determined to perpetuate America’s foolhardy entanglement in the Middle East view as their favorite designated enemy.

Even Trump’s repeated calls during the campaign for a cooperative relationship with Russia, which outraged American hawks, now seem on the verge of abandonment.  Instead of pursuing a policy toward Moscow based on realist principles, the president is drifting toward a stance based on the same lack of realism that plagued the Obama administration. 

Obama and his advisers, especially the infamous Victoria Nuland, the Assistant Secretary of State for European and Eurasian Affairs, apparently believed that Washington and the European Union could back anti-government demonstrators in Ukraine in their campaign to oust the elected, pro-Russian government without Russia lashing out in response.  They were soon disabused of that notion when the Kremlin promptly seized control of Ukraine’s Crimean Peninsula and subsequently backed rebel forces in eastern Ukraine against the new regime in Kiev. Washington and its NATO allies responded by imposing economic sanctions on Moscow, and relations with Russia have deteriorated rapidly since then, with alarming deployments of both Russian and NATO military forces.

President Trump still insists that he wants to get along with Russia, but his lack of realism about the underlying issues will likely preclude a rapprochement.  In a new briefing, White House Press Secretary Sean Spicer insists that the president expects Vladimir Putin not only to reduce Moscow’s support for the Ukrainian separatist rebels, but to return the Crimean Peninsula to Ukraine unconditionally.

The first demand is a stretch, but the second one is a nonstarter.  There is virtually no chance that Russia will disgorge Crimea.  Not only do most Crimean residents apparently favor an affiliation with Russia rather than Ukraine, but Moscow is determined to secure its longstanding naval base at Sevastopol.  Having that crucial base end up in a foreign country occurred because of the breakup to the Soviet Union.  Moreover, Russians point out that Crimea was part of Russia from the 1780s until 1954, when Soviet leader Nikita Khrushchev transferred control to Ukraine. Since Ukraine and Russia were both part of the Soviet Union, that decision didn’t seem to matter much at the time.  But now both Russians and Americans might well ask why so many U.S. political leaders and policymakers regard with apparent reverence the arbitrary edict made by the communist dictator of a defunct country.

President Trump and other U.S. leaders need to accept the reality that Russia will not relinquish Crimea.  Nor will Serbia be able to reclaim Kosovo, Syria regain the Golan Heights from Israel, or Tibet again become independent from China.  The legality (much less the justice) of all of those territorial changes via conquest are certainly open to question.  But a foreign policy based on realism must accept facts on the ground and deal with situations as they are, not how we might wish they would be. If the Trump administration truly wants a cooperative relationship with Russia, it must abandon its unrealistic demand regarding Crimea.

I testified to a House committee today on Department of Energy (DOE) loan programs. These were the Bush/Obama-era subsidies to Solyndra and other renewable energy businesses.

I discussed five reasons why the loan programs should be repealed:

1. Four Decades Is Enough. The federal government has been subsidizing solar and wind power since the 1970s. These are no longer the sort of “infant industries” that some economists claim need government help. Solar and wind are large and mature industries, and they already receive subsidies from state governments, particularly in the form of utility purchase mandates, which are in place in 29 states.

2. Failures and Boondoggles. The DOE claims that Solyndra’s bankruptcy was the exception, and that the agency’s overall loss rate on loans is low. But as an economist, I’m more concerned with whether the overall benefits of projects outweigh the costs, and that appears not to be the case for numerous projects. The Ivanpah solar project in California, for example, is producing less electricity and consuming more natural gas than promised, and its cost per kwh is at least three times more than for natural gas plants.

3. Corporate Welfare and Cronyism. The Washington Post found that “Obama’s green-technology program was infused with politics at every level.” Public opinion polls have shown plunging support for both politicians and big businesses over the years, and one of the reasons is such cronyism. Businesses and policymakers would gain more public respect if they cut ties to each other by ending corporate welfare.

4. Private Sector Can Fund Renewable Energy. Most DOE loan guarantees have gone to projects backed by wealthy investors and large corporations, such as Warren Buffett and General Electric. Such individuals and companies are fully capable of pursuing energy projects with their own money. Buffett’s Berkshire Hathaway has invested $17 billion in renewable energy since 2004. With that kind of private cash available for renewables, we do not need the DOE handing out subsidies.

5. Subsidies Distort Decisionmaking. Federal energy subsidies create counterproductive incentives in the economy. For example, subsidized firms tend to become slow and spendthrift, thus subsidies undermine productivity. Also, because subsidies are not driven by consumer demands, they can induce firms to invest in activities that will not succeed in the marketplace in the long term.

You can watch the full hearing here. My testimony is here. More background on energy subsidies is here.

David French at National Review criticized Nicholas Kristof’s New York Times op-ed where he wrote that many other hazards like bathtubs, stairs, and lightning strikes are deadlier than foreign-born terrorism on U.S. soil.  French is correct that there is a big difference between dying as the result of an accident and dying as a result of murder (intentional killing committed by another person).  Murder is scarier than an accidental death so people are willing to tolerate more precautionary measures to prevent it.  The costs of death appear to be the same to the victim but many risk analysts disagree.  A 2010 report endorsed by the Department of Homeland Security (DHS) estimated the value of each life saved at $6.5 million but argued that $13 million was justifiable.  Another report estimated the value of a statistical life at $15 million.  People seem to intrinsically be repelled when the chance of being murdered in a terrorist attack is compared to your chance of being killed in a bathtub.

My preferred comparison is your annual chance of being murdered by a terrorist versus being murdered in a homicide.  One in 3.6 million people were murdered in a terrorist attack by a foreign-born terrorist on U.S. soil per year from 1975 through the end of 2015 (one in 3.2 million per year for all terrorist attacks committed on U.S. soil by any perpetrator).  One in 14,219 people per year were murdered on U.S. soil by a non-terrorist homicide during the same period.  Comparing murder by terrorist and deaths by accident is useful for explaining the frequency of rare events.  The understandable desire to compare the likelihood of infrequent yet scary events to other infrequent but less scary events is a useful academic, mathematical, or cost-benefit exercise but it is not effective at convincing people to more rationally view the real risk from terrorism.  People understand there is an important distinction between those who die as a result of murder and those who die from accidents.

However, French’s criticism of Kristof for focusing on terrorism deaths caused by foreigners on U.S. soil is off base.  French’s sarcastic comparison to World War II summarizes his position:

By that logic, never mind about those Nazis. Much ado about nothing. After all, ladders, bathtubs, toddlers, and husbands were all more deadly “in America” from 1939-1945 than the SS or the Wermacht. Millions of died overseas, including hundreds of thousands of Americans, but the Germans couldn’t strike us here at home. So all that hysteria over Hitler? Fearmongering, really. He couldn’t hurt us.

The reason Kristof distinguishes between murders committed by terrorists on the homeland and those killed overseas is because Trump’s executive order is entirely concerned with stopping terrorists from entering the United States and committing attacks here. 

The title of Trump’s executive order is:   “EXECUTIVE ORDER: PROTECTING THE NATION FROM FOREIGN TERRORIST ENTRY INTO THE UNITED STATES.” 

The first header of the executive order is “Protecting the Nation from Foreign Terrorist Entry into the United States.” 

The first full sentence is: 

By the authority vested in me as President by the Constitution and laws of the United States of America, including the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., and section 301 of title 3, United States Code, and to protect the American people from terrorist attacks by foreign nationals admitted to the United States, it is hereby ordered as follows [emphasis added].

President Trump’s executive order limited the scope of the debate to foreign-born terrorists on U.S. soil, so it is perfectly reasonable for Kristof to stick to this issue when criticizing Trump’s executive order.  There may be better justifications for the executive order than those offered by the administration itself but that doesn’t change the fact that the official justification written into the text of the order itself is to prevent terrorist attacks committed by foreign nationals on U.S. soil. 

French also unintentionally makes a compelling argument that the government’s overreaction to terrorism killed far more people than it saved.  He writes that we should count the 7,000 U.S. soldiers who have died abroad fighting jihadists as victims of terrorism.  Assuming his numbers are correct, that means 2.35 U.S. soldiers died abroad after 9/11 in the wars started as a result of 9/11 (even though Iraq wasn’t initially about terrorism) for each innocent victim killed during that terrorist attack.  That seems like a bad exchange.

Those 7,000 U.S. military deaths overseas would have to have prevented at least an equivalent number of American deaths from terrorist attacks to justify the loss of life even though the Iraq War was not initially justified with stopping terrorism and had nothing to do with 9/11.  To prevent 7,000 terrorism deaths since 9/11 would mean stopping about 30 San Bernardino-scale attacks each year.  To put that in perspective, only 80 people have been killed on U.S. soil in any terrorist attack from 2002 to the end of 2015.  It is extremely unlikely that our government’s decision to fight several wars overseas in response to 9/11, even though the Iraq War was not a direct response to that attack, prevented 7,000 deaths from terrorism.  This is just a back of the envelope calculation that excludes non-American civilian deaths in war zones, the costs of property damage not incurred in terrorist attacks that didn’t happen, the cost to U.S. taxpayers of fighting wars overseas, and the potential for blowback.  Including all of those costs and savings would yield a far more depressing number even if the deaths of foreign civilians was not considered. 

French is correct to criticize it when Kristof or others compare dying from a terrorist attack to dying from accidents like slipping in a bathtub.  However, it is unfair for him to criticize Kristof for arguing over Trump’s executive order on rhetorical ground chosen by the Trump administration.  

Senator Chuck Grassley (R-IA) recently introduced S. 179, known as the Accountability Through Electronic Verification Act (ATEVA), to mandate E-Verify in the United States.  The bill would mandate E-Verify for all employers in the United States while also mandating civil penalties for non-compliance of $1000 to $25,000 per violation.  ATEVA also includes criminal penalties of $15,000 per illegal immigrant hired and/or a 1 to 10-year prison sentence for repeat violators.  The bill also includes a good faith clause to prevent punishment of the businessman in case E-Verify makes an error.

If ATEVA were to become law, the mandatory E-Verify portion would go into effect one year after the President’s signature.  Most worrying though is that ATEVA would require all employers to verify their existing employees no later than 3 years from the date of enactment.  The identity of unlawful immigrants who are granted final non-confirmations would then be transferred to Immigration and Customs Enforcement (ICE) for removal.  Of course, ICE would have to locate the person but that is still a worrying increase in enforcement coordination.

ATEVA does not resolve the real and persistent problems with E-Verify. 

The first big problem is that E-Verify is expensive.  Oftentimes it is labeled a “free online system” but nothing supplied by the government is free to the taxpayers who pay for it.  E-Verify is also not free because of the opportunity cost of employers and workers who use the system.  The current I-9 form costs employers about 13.48 million man-hours each year to process.  ATEVA would add to that even if the I-9 is eventually replaced by E-Verify.  Those are a lot of hours that employers could otherwise spend on growing their businesses but instead must waste complying with government rules.

About 46.5 percent of contested E-Verify cases in 2012 took DHS eight work days or more to resolve.  During that time, employers are justifiably reluctant to train new employees who might not be work authorized.  Employers will likely avoid that cost by pre-screening job applicants to exclude those who come back as tentative non-confirmations.  Workers could thus get rejected from every job they apply for but not know that a simple and correctable error in the E-Verify database is the reason.  ATEVA makes prescreening illegal except with the expressed permission of the employee but we shouldn’t expect that to prevent unlawful prescreening by employers who don’t mind breaking labor market regulations in the first place.

The second problem is that E-Verify is ineffective at detecting illegal immigrant workers and the system’s accuracy rates are notoriously difficult to judge.  An audit of the system by the firm Westat found that an estimated 54 percent of unauthorized workers were incorrectly found to be work authorized by E-Verify because of rampant document fraud.  E-Verify relies upon the documents presented by the workers themselves.  Frequently, identity information comes from deceased Americans – a loophole the government seems incapable of closing.  For instance, SSNs for roughly 6.5 million Americans who are 112 years old or older do not have a death date attached which means they can easily be used by illegal workers and nobody would complain.  An illegal worker using the SSN of a deceased American would likely end up work authorized.

Employer avoidance of  E-Verify’s is even more difficult to fix.  Many employers ignore E-Verify even when it’s mandated, just like they ignore other government immigration enforcement rules.  Alabama, Arizona, Mississippi, and South Carolina all mandate usage at the state level, yet usage and enforcement have been lax.  In 2014, only 56 percent of employers in Alabama, 57 percent in Arizona, 43 percent in Mississippi, and 54 percent in South Carolina used E-Verify for new hires despite their state laws mandating that 100 percent of employers must use the system.  ATEVA tries to solve this problem by placing high civil and criminal penalties on employers who break the rules.  Violating I-9 rules currently opens up employers to serious criminal and civil penalties but that hasn’t incentivized many to comply even in states where E-Verify is mandated.  It’s also hard to believe that the government will fine to death many small businesses for failing to use E-Verify properly.   

The third problem is that some Americans would be kicked out of the labor market due to E-Verify.  E-Verify’s inaccuracy rate means that Americans will be barred from work due to false positives.  Roughly 0.15 percent of all E-Verify queries currently result in a false “final non-confirmation.”  While that is an admittedly small percentage, if applied nationwide to an American labor pool of roughly 125 million workers, it would result in 187,500 wrongly issued FNCs to American workers each year.

The fourth problem is that E-Verify is supposed to help curb illegal immigration by turning off the jobs magnet.  In the real world, E-Verify barely altered the wages of suspected illegal immigrants.  In Arizona, the E-Verify mandate lowered the expected wage gain of immigrants from Mexico from 253 percent to 241 percent – hardly diminishing the strength of the wage magnet.  That small effect could even overstate E-Verify’s effectiveness because it includes a period of time before employers and employees learned how to circumvent the system. A national mandate in the near future would confront many millions of employers and illegal immigrants who now know how to get around the system thanks to their experience Arizona and other states.

The fifth problem is that ATEVA will incentivize identity theft.  A huge cottage industry of forged identity documents sprung up after the government first mandated that employers check the identification of new hires in 1986 through the I-9 form.  Just as IRCA gave a big boost to the black market 31 years ago, nationally mandated E-Verify would subsidize it even further regardless of the anti-identity theft provisions in ATEVA.         

The sixth big problem will be the reaction to mandatory E-Verify.  The system’s errors and loopholes mean that it will be quickly rendered useless as an employment verification system – which is the most positive thing I’ll say about E-Verify.  Congress will not react to E-Verify’s failure by throwing up it hands and calling it a day.  Congress would instead integrate other biometric information like fingerprints or perhaps even DNA into a national identity system to close the E-Verify “loopholes” to make the system more effective.  Such a beefed up E-Verify system could easily be used for other purposes like creating a national gun registry.  It is unwise to mandate participation in a new government identity tool that will expand in the future, especially in an era of serious privacy scandals.  

ATEVA is another in a long line of bills introduced to mandate E-Verify in an attempt to force employers to help enforce federal immigration law.  The government should enforce its own laws rather than conscripting employers.  If the government cannot enforce its own laws then that is a signal that its laws should change.  Americans should not have to ask government permission to work from a federal government database.  If ATEVA were to ever become law, it would be an expensive new scheme that would fail to help enforce our immigration laws and likely lead to more invasive forms of national identification.

Special thanks to Scott Platton for his help in writing this.

Michael Flynn’s resignation as National Security Advisor is good news, mostly because it makes it slightly less likely that the Trump administration will blunder into a foolish war, especially with Iran. It won’t be the end of the scandal though, as it is hard to believe that the President was totally unaware of Flynn’s actions.

Flynn’s fall is surprising only for its speed. Since he gained prominence as a Joint Special Operations Command intelligence officer in Iraq for helping to develop the “find, fix, and finishmethod of seizing or killing suspected insurgents and terrorists, Flynn has, to put it mildly, showed a deficit of the sound judgment needed in a National Security Advisor.

As head of the Defense Intelligence Agency, Flynn apparently pushed analysts to hype Iran’s malign influence and to find evidence that it had a hand in the 2011 Benghazi attack, feuded with senior staff, demonstrated hostility to dissent, favored conspiracy theories, and got fired for some combination of those things and generally poor management.

He wrote an overwrought book with Michael Ledeen which includes various dubious and unsubstantiated claims, especially about Iran, including that it is allied against the United States with jihadists, North Korea, China, Russia, Iran, Syria, Cuba, Bolivia, Venezuela, and Nicaragua.

In his speech at last year’s Republican National Convention, Flynn essentially accused Hillary Clinton of treason for her email server debacle, despite his own dubious record in handling classified information. And, while receiving classified intelligence briefings along with Trump, Flynn was secretly employed as a lobbyist for Turkish interests, a fact that he hid while taking Turkey’s line in an op-ed endorsing the extradition of Fethullah Gulen. Around that time, Trump was attacking lobbyists and subsequently pretended to bar them from his administration.

Maybe surviving and even profiting from those misjudgments encouraged the reckless and possibly illegal actions that led to Flynn’s resignation. As everyone that reads the news knows, Flynn may have violated the Logan Act, which bars unauthorized citizens from meddling in U.S. diplomacy, when on December 29, in a series of calls, he told Russian Ambassador Sergey Kislyak that the Trump administration would reverse the sanctions that the Obama had just imposed on Russia for its pro-Trump hacking and leaking.

You don’t have to be a former head of the DIA to know that U.S. intelligence agencies intercept the Russian’s ambassador’s cellphone calls. That’s why it’s baffling that Flynn lied to Vice President Pence (and the media) about the content of the calls, which created concern among Justice Department officials that he could be blackmailed by Russians. That lie, more than Trump’s concern about propriety, seems to be why Flynn was likely to be fired, and thus preemptively resigned.

We shouldn’t expect too much from Flynn’s replacement, given who is picking and the fact that most qualified candidates, having seen the Trump White House in action, will want no part of it. Still, at the risk of sounding like the president, it’s hard to see how it could get worse. The retired generals that Trump is predictably considering for the post are less belligerent and better-suited to deflect his worst instincts.

Flynn’s resignation probably won’t end the scandal. It’s doubtful that his pre-inaugural talk with the Russian ambassador was a one-off. According to intelligence reports cited by the Washington Post, Flynn was communicating with Kislyak during the campaign. Nor is it likely that Flynn acted without Trump’s approval. Note that the president-elect tweeted his approval of Russia’s non-response to the sanctions on December 30. It is possible that Flynn’s actions were part of the broader set of conversations between the Trump campaign and Russian officials, now the subject a counterintelligence investigation.

Maybe Flynn will have something to say about all that now that he’s out of a job. He ended his resignation letter like a good Trump soldier, calling on Americans to work to “Make America Great Again.” But otherwise he sounded petulant and barely contrite, admitting only to “inadvertently briefing” Pence and others with “incomplete information,” and blaming his error on the “fast pace of events.”  

I’m tempted to say that no one would so blatantly work with a rival state to undercut U.S. diplomacy. Why not at least use intermediaries outside the campaign, like Nixon did in 1968 when he undermined U.S. peace talks in Vietnam to beat Hubert Humphrey? But, if we didn’t know it three weeks ago, it’ become clear that under Trump, incompetence can’t be underestimated.

Todd Farha, CEO of WellCare Health Plans, was convicted of knowingly executing a fraud by submitting false expenditure reports to the state. However, the district court decided that “knowingly” didn’t actually have to mean that Farha knew that the reports were false, but only that in submitting the reports Farha acted with “deliberate indifference” as to whether they were accurate. Essentially, a non-lawyer was convicted for being insufficiently cautious in adopting an interpretation of an ambiguous regulatory statute.

The U.S. Court of Appeals for the Eleventh Circuit upheld Farha’s conviction even in the absence of the required statutory mental-state element (what lawyers call mens rea). The appellate court decided, in agreement with the district court, that deliberate indifference toward falsity may stand in for knowledge of falsity. The practical implication is that the court lowered the mens rea standard and used a civil standard of liability to a criminal case. (You can be liable in a civil lawsuit even if you’re not guilty for criminal-punishment purposes.)

Cato has now filed a brief supporting Farha’s request that the Supreme Court review his case. The lower court’s holding is out of step with precedent, with bedrock principles of statutory interpretation regarding the mental-state elements of a criminal offense, and with common sense notions of justice. The most egregious aspect of the ruling is that mens rea elements are seen as so crucial to the criminal law that the Supreme Court has been willing to read them into a statute when the statute is silent regarding necessary mental state.

Yet the Eleventh Circuit took the opposite approach and read out of the statute mental-state elements that make the crime too hard to prosecute. This decision is especially troubling in an era of over-criminalization, with an estimated 300,000 separate federal crimes. This situation is exacerbated by the fact that many of the crimes are inherently complex, leading to ambiguity in underlying regulatory-compliance requirements that makes it incredibly challenging for people to understand what they must do to avoid liability.

Unfortunately, instead of attempting to rectify some of this ambiguity, the court here added more ambiguity—because arguably any crime can have a lower mental-state requirement added by the court at trial. This ruling has given prosecutors more weapons and made it even harder for businesses to comply with rampant regulations and made their owners and officers subject to arbitrary legal jeopardy. Many people will now be stripped of their liberty simply on the grounds of an incorrect interpretation of complex and ambiguous statutes. With the deck already stacked in favor of the government—and with myriad civil remedies available—there’s no logical reason to add the weapon of a diluted mens rea to the government’s arsenal.

For further discussion of Farha v. United States and other issues attending regulatory crimes, tune into this Federalist Society teleforum today at 3pm ET (and the audio recording should appear at that link later).

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