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Among the many failures of federal policies over the decades, the failures of Indian policies stand out. The government has deprived American Indians of their lands, resources, and freedom in many ways. It has failed to create an institutional structure supportive of prosperity on reservations. And the Bureau of Indian Affairs has been mismanaged for two centuries, as I discuss here.

Naomi Schaefer Riley addresses the failures of Indian policies in The New Trail of Tears, which she will discuss at an upcoming AEI forum. I will be commenting on Riley’s book at the forum.

One of Riley’s themes is the failure of federal and tribal efforts to provide a decent education for children on reservations. Riley visited numerous schools, and she reports on the disheartening conditions that she saw.  

Last week the Washington Post reported:

The federal government has repeatedly acknowledged and even lamented its failure to provide adequate education for Native American children. Now, nine Native children are taking to the courts to force Washington to take action.

The children are all members of the Havasupai Nation, whose ancestral homelands are in and around the Grand Canyon. They attend an elementary school that is run by the federal Bureau of Indian Education and is, according to a lawsuit filed Thursday, hardly recognizable as a school at all.

Havasupai Elementary School does not teach any subjects other than English and math, according to the complaint; there is no instruction in science, history, social studies, foreign language, or the arts. There aren’t enough textbooks or a functioning library or any after-school sports teams or clubs, according to the complaint. There are so many and such frequent teacher vacancies that students are allegedly taught often by non-certified staff, including the janitor, or they are taught by a series of substitutes who rotate in for two-week stints. The school shuts down altogether for weeks at a time.

The Obama administration has been candid about the federal government’s failure to meet the needs of nearly 50,000 Native young people in nearly 200 schools the Bureau of Indian Education oversees.

“Indian education is an embarrassment to you and to us,” [Interior Secretary Sally] Jewell told the Senate Indian Affairs Committee in 2013.

The Bureau of Indian Education (BIE) oversees 183 Indian schools with 41,000 students, as I discuss in this study. The BIE operates about one-third of the schools, and tribal governments operate the other two-thirds.

The poor performance of the schools does not seem to be caused by a lack of funding. The schools received $830 million of federal aid in 2014, which is $20,000 per pupil. The GAO reports that “the average per pupil expenditures for BIE-operated schools—the only BIE schools for which detailed expenditure data are available—were about 56 percent higher than for public schools nationally.”

If more money is not the answer, what is? How about private management and school choice? Rather than running schools, the federal government could provide education block grants to the tribes, who would then outsource school management to expert education firms. Even better, federal funding could flow directly to Indian parents in the form of vouchers to be used at schools of their choice. I’ll be interested to see what former BIE head Keith Moore says about those options at the AEI forum.

More on school choice here.

At 5:00 this afternoon—almost guaranteeing it will interrupt my usual dinner time—the confirmation hearing for education secretary-nominee Betsy DeVos will take place. With my Hungry Man “Gamer Grub” on a tray and my laptop right next to it, I’ll be live-tweeting the proceedings. So, too, will Jason Bedrick, though I have no idea what he’ll be eating if he’s dining at all. One can easily lose one’s appetite while witnessing political theater.

Here are the things I’m hoping to hear discussed:

  • Broadly speaking, what does DeVos think is the proper federal role in education? I know my—and the Constitution’s—answer.
  • What role, if any, should the federal government have in advancing school choice? For my answer, see the point above. And this. And this.
  • Does school choice work? Dems are likely to point to Michigan—DeVos’s home state—to answer “no.” In contrast, Jason and the Manhattan Institute’s Max Eden show that a fair reading of the Michigan research indicates the answer is “yes.”
  • President-elect Trump talked about getting rid of the Common Core. How would DeVos do that? Here’s what I think.
  • How should the Every Student Succeeds Act—the more hands-off successor to No Child Left Behind—be implemented? I say follow the spirit and letter of the law.
  • How do we get control of skyrocketing college prices, not to mention massive noncompletion? It is unclear what DeVos will say, but the evidence is powerful that Washington must do the opposite of what it has been doing.
  • What will be DeVos’s approach to for-profit colleges? I hope she’ll put them in the full higher education context.
  • What is the federal role in enforcing civil rights? My answer here.
  • Finally, won’t school choice—educational freedom—destroy the “cornerstone” of democracy, or America, or something else equally foundational? The answer—despite decades of rhetoric—is crystal clear: Quite the opposite.

There could be a lot of substance to chew on if the hearings stick to issues and not political theatrics. But if we mainly get the latter, at least I’ll have my frozen Salisbury steak, or some other grub, on which to chew.

In what follows, I update my annual Misery Index calculations. A Misery Index was first constructed by economist Art Okun as a way to provide President Lyndon Johnson with a snapshot of the economy. 

The original Misery Index was just a simple sum of a nation’s annual inflation rate and its unemployment rate. The Misery Index has been modified several times, first by Robert Barro of Harvard and then by myself. My modified Misery Index is the sum of the unemployment, inflation, and bank lending rates, minus the percentage change in real GDP per capita. A higher Misery Index score reflects higher levels of “misery,” and it’s a simple enough metric that a busy president without time for extensive economic briefings can understand at a glance.

Below is the 2016 Misery Index table. For consistency and comparability, all data come from the Economist Intelligence Unit (EIU).

Venezuela holds the inglorious spot of most miserable country for 2016, as it did in 2015. The failures of the socialist, corrupt petroleum state have been well documented over the past year, including when Venezuela became the 57th instance of hyperinflation in the world.

Argentina holds down the second most miserable rank, and the reasons aren’t too hard to uncover. After the socialist Kirchner years, Argentina is transitioning away from the economy-wracking Kirchner policies, but many problematic residues can still be found in Argentina’s underlying economic framework.

Brazil, at number 3, is a hotbed of corruption and incompetence, as the recent impeachment of Brazilian President Dilma Rousseff indicates. It’s similar in South Africa, at number 4, where corruption runs to the very highest office. President Zuma of South Africa just recently survived impeachment after the Constitutional Court unanimously decided that Zuma failed to uphold the country’s constitution.

Egypt, ranked fifth most miserable, is mired in exchange controls, a thriving Egyptian pound black market, and military-socialist rule. However, Egypt is likely suffering even more than this table indicates, as the EIU’s inflation estimate for Egypt (17.8 percent) is far off from the Johns Hopkins-Cato Institute Troubled Currencies Project, which I direct, estimate of 150.7 percent.

Next, with a Misery Index score of 36.0, is Ukraine, a country still feeling the effects of the highly-publicized civil war that began three years ago. With a civil war and endemic corruption, it comes as a shock to no one that Ukrainians are miserable?

Azerbaijan is plagued by corruption, fraud, and incompetence, and currency devaluations are commonplace – the manat has been devalued twice since 2015, losing 57 percent of its value against the dollar. This weakness in the currency markets makes it difficult to do business, and the Azerbaijani economy has faltered as a result.

Turkey faces a despotic leader in Islamist Erdogan, who devotes all of his resources to staying in power rather than governing the state, leading to a strongly depreciating currency and a populous mired in fear. The Turkish lira has lost over 24 percent of its value against the dollar in the last year, and the economy is in the process of spontaneously dollarizing. Not surprisingly, Turkey is a member of the Fragile Five, which also include Brazil, India, Indonesia, and South Africa.

The reasons for Iran’s rank on this list are almost too obvious and plentiful to enumerate, but it’s safe to say that a combination of corruption, incompetence, theocratic-authoritarian rule, and more have led to its state of misery.

Rounding out the ten most miserable countries is Colombia. The Colombian government has been so preoccupied negotiating peace talks with the rebel FARC group that the economy has been neglected, causing interest rates to spike as the economy stands still.

On the other end of the table one finds Japan with the low score of 0.4. Japan’s low misery is not the result of high GDP per capita growth (Japan’s figure is only 0.7 percent), unlike most other countries at the bottom. Instead, it’s Japan’s -3.5 percent inflation rate that drives the score down. China is the next best, with the second-least miserable score of 4.5, almost entirely due to its high (6.3 percent) GDP per capita growth rate.

Also of note on this list is the United States. In President Obama’s final year in office, the United States ranked lower than Slovakia, Romania, Hungary, China, and even Vietnam. What a legacy.

Last week the Supreme Court heard oral arguments in Expressions Hair Design v. Schneiderman—an important First Amendment case in which Cato filed an amicus brief—challenging a New York law that allows merchants to advertise “discounts” for paying cash, but makes it illegal to tell their customers that they’re charging an economically equivalent “surcharge” for using a credit card. More simply, the New York legislature was lobbied by credit-card companies to abridge the rights of merchants to convey—and the right of people to receive—information about how prices are structured in the marketplace.  

During the argument, Justice Stephen Breyer invoked a familiar trope when he opined: “We are diving headlong into an area called price regulation. It is a form of price regulation, and price regulation goes on all over the place in regulatory agencies. And so the word that I fear begins with an “L” and ends with an “R”; it’s called Lochner. And there we go.”

Lochner v. New York (1905) involved the Fourteenth Amendment rights of bakers to contract with their employers regarding working hours, and whether the state could restrict those contractual relationships. Unionized bakers had lobbied the New York legislature to put certain conditions on employment that favored bigger bakeries as against upstart immigrant entrepreneurs. The established bakeries could afford to employ more people to keep their shops running for the long hours required in that industry. The Supreme Court recognized the cronyism involved and struck down the law as violating economic liberty.

Lochner became discredited under the New Deal as improper judicial interference with legislative authority. It continues to be seen in progressive and conservative circles alike as the consummate example of “judicial activism,” whereby judges substitute their policy judgment for that of the people’s elected representatives. To say the least, such criticism gets both the history and the law wrong. (For more on how the conservative call for “judicial restraint” is actually based on progressive legal theories, see Ilya Shapiro’s essay in National Affairs.)

So is Justice Breyer really worried that protecting the First Amendment rights of merchants and customers is akin to the states’ ability to regulate the working conditions for bakers in the early 1900s? Lochner had nothing to do with the First Amendment, but it has become a familiar tool for judges to use to advance the theory of judicial deference in cases they don’t like.

Broadly defined, judicial deference is the theory that judges should be restrained when reviewing legislation passed by majorities. This practice is a product of the Progressive-era idea that democracy is the touchstone of our republic, and that people get their rights at the polls. This view, however, goes against our Founding ideal that preservation of liberty is the ends for which we have delegated the government limited powers—and that the judiciary is the branch that should assure that majorities are staying within their bounds.

James Madison made it clear that majorities are dangerous in Federalist 10. He argued that one of the most basic threats to liberty was the ability of “factions” to come together to seek concentrated benefits from majorities through favorable legislation and regulation, rather than competing in the marketplace. The Court in Lochner recognized these dangers when striking down the arbitrary legislation involved, and it has therefore become a symbol of anti-democratic values for progressives who advocate for deference to legislatures.

But even the progressive foundation for judicial deference has its limits. Indeed, the New Deal case United States v. Carolene Products (1938)—the root of the modern presumption of constitutionality of most statutes—explicitly carved out exceptions. In that case’s famous (or infamous) footnote 4, the Supreme Court indicated that this presumption would not apply to certain categories of legislation, including those that run afoul of the First Amendment. And just because a law may have some connection to economics, does not mean that judges should ignore the Constitution when a state has abridged the right of the people to speak freely.

This is not the first time Justice Breyer has used a “parade of horribles” argument when a state legislature has violated the First Amendment. In Sorrell v. IMS Health (2011)—a case in which the Court ruled 6-3 that a Vermont law restricting the sale, disclosure, and use of records revealing the prescribing practices of individual doctors was an unconstitutional speech restriction—Breyer writing in dissent warned: “At best the Court opens a Pandora’s Box of First Amendment challenges to many ordinary regulatory practices that may only incidentally affect a commercial message. At worst, it re-awakens Lochner’s pre-New Deal threat of substituting judicial for democratic decisionmaking where ordinary economic regulation is at issue.”

Justice Oliver Wendell Holmes’s dissent in Lochner denigrated the majority for deciding the case “upon an economic theory which a large part of the country does not entertain”—implying that the Court was invoking laissez-faire ideology to enact “Mr. Herbert Spencer’s Social Statics.” In response to Justice Breyer’s concerns in Sorrell, Justice Kennedy noted that while “[t]he Constitution ‘does not enact Mr. Herbert Spencer’s Social Statics[,]’ [i]t does enact the First Amendment.”

Let’s hope that the Court majority sticks to that principle in Expressions Hair Design and similarly rebuffs Breyer’s bogeyman.

Jason Richwine just blogged about my recent Mariel Boatlift post that confirmed George Borjas’ finding of wage increases for those with only a high school degree in post-Mariel Miami.  George Borjas understood my quick extension of his research.  Below are some of Richwine’s points and my quick responses. 

“The point is not especially interesting, since the standard immigration narrative has always been that efficiency gains come at the expense of the natives with whom immigrants most directly compete – high school dropouts, in the case of Mariel.”

It’s important to identify which skill-group of Miamians could have benefited from the Boatlift.  George Borjas pointed out in his report for the Center for Immigration Studies:  “Economic theory predicts that immigration will redistribute income by lowering the wages of competing American workers and increasing the wages of complementary American workers as well as profits for business owners and other “users” of immigrant labor.”  Borjas focused on the benefits for business owners and other “users” of immigrant labor in that paper. 

Although he argues that dropouts and workers with only a high school degree are not substitutes, he doesn’t provide evidence of potential complementarity.  In at least the Mariel case, there is some evidence of that.  My post shifts the narrative from “only businesses and the rich gain from low-skilled immigration” to “the real beneficiaries could be a much larger pool of workers who actually bothered to finish high school.”  That matters. 

Furthermore, if “efficiency gains come at the expense of natives with whom immigrants most directly compete,” then who gains in Richwine’s analysis?  The cross-skill wage elasticities for those above a high school degree are not statistically significant.  They are for workers with only a high school degree according to Table 4 in this paper by Borjas and Joan Monras.  My Mariel post is perfectly consistent with those findings. 

“But it would have been simple to determine the HS-and-below impact directly from the Borjas and Monras paper: Just take a weighted average of the dropout and graduate wage effects reported in their Table 4.  Doing that yields a negative number that does not reach statistical significance.”

I didn’t work backward from Borjas and Monras because they ended their analysis in 1984.  Using 1984 in my post would have unfairly biased my results against Borjas’ findings in his Mariel paper.  I chose 1986 because wages for dropouts were at their nadir in that year and to be consistent with Borjas’ Mariel paper. 

Furthermore, Richwine’s point that combining wages for dropouts and high school only workers yields a result that is statistically insignificant shows yet again that high school graduate wages increased to outweigh the negative wage effects on dropouts.  I don’t think Richwine intended to neutralize Borjas’ findings in exactly that way.    

“Overall, Nowrasteh frames his argument as the following: Borjas may or may not be right about Mariel lowering the wages of dropouts, but if he is, then we must also conclude that Mariel raised the wages of dropouts and high-school-only natives put together. The argument doesn’t work. Across several different methodological scenarios that do not alter Borjas’s conclusion, Nowrasteh’s numbers – both his own and those of economists who previously studied the same question – do not tell a consistent story. His claim that accepting Borjas requires accepting that HS-and-below natives benefited from Mariel is therefore unconvincing.”

Those who swooned over Professor Borjas’ Mariel paper have consistently failed to note the increase in wages for high school graduates that Borjas and Monras discovered.  To quote their paper:

“As before, the estimated own wage effect is negative and significant, with a wage elasticity of about -0.9. Similarly, the estimate of the own employment effect is not distinguishable from zero.  The analysis, however, shows that the cross effects are numerically important.  Although the supply shock of the predominantly low-skill Marielitos lowered the wage of high school dropouts, it raised the wage of workers with a high school education, and this effect is both numerically and statistically significant. The cross-wage elasticity is about +0.7.  In addition, the unemployment rate of workers with more than a high school diploma also fell significantly [Emphasis added].”

That such dramatically different findings can result from such minor changes in methodology weakens all of the research on this topic – including mine.  Reading the work by Card, Peri and Yasenov, Borjas, and Borjas and Monras, and then conducting my own replication and extension of their results has significantly weakened my confidence in any of these findings.  For instance, weekly earnings for Hispanic dropouts between the ages of 25 and 59 increased in Miami shortly after the Boatlift (Figure 1).  Hispanic dropouts should be the most substitutable for Marielitos but they’re not according to Borjas’ methods.  This graph would well fit into David Card’s research. 

Figure 1

Weekly Earnings for Hispanic Dropouts Age 25-59

 

 

It’s baffling how anybody can replicate these findings, look at these graphs, and maintain their confidence in this research. 

This week the Cato Daily Podcast (Subscribe!) focuses on the importance of trade as the Trump Administration arrives next week. Here’s a quick rundown.

Monday:

Daniel J. Ikenson and Daniel J. Mitchell discusses the backgrounds and new roles for Trump’s “protectionist triumvirate” of Wilbur Ross, Peter Navarro, and Robert Lighthizer.

Tuesday:

Simon Lester discusses the potential fallout of President-elect Trump’s taking to Twitter to threaten companies like Carrier, Ford, Toyota, and General Motors.

Wednesday:

Daniel R. Pearson discusses how multinational corporations make location decisions. For all the handwringing over cheap labor outside the United States, Pearson notes that American workers are far more productive than workers in lower-wage countries. He adds that the savings from lower-priced inputs like steel could contribute substantially to a firm’s decision to increase production outside the United States.

Thursday:

Daniel J. Ikenson makes a sobering assessment of the Presidential powers governing trade. As it has in many other areas, Congress has delegated many powers governing trade to the executive branch.

Friday:

Daniel J. Mitchell and Daniel J. Ikenson discuss the so-called “border adjustment tax” included in a House tax reform a Congressional attempt to head off attempts to restrict trade. Depending on your perspective, the border adjustment tax could be a poison pill for tax reform or an effort to level the playing field in international trade, or both.

Please susbscribe to the Cato Daily Podcast.

President Obama is abandoning America’s five decade-old policy on asylum seekers that guarantees Cubans asylum in the United States. The change comes at a time when more Cubans will have arrived at U.S. borders than at any time since 1980, and it is a major win for the Cuban regime and opponents of immigration, both of which oppose Cuban immigration to the United States. But the sudden reversal is bad policy that will harm efforts to secure the border and aid the regime most hostile to human rights in the Western Hemisphere.

In 1966, Congress passed the Cuban Adjustment Act (CAA), which grants lawful permanent residency to any Cuban national who has resided in the United States for at least two years (later lowered to one). Each of the last eight administrations has interpreted the law to allow almost all Cubans who arrive at U.S. borders to apply for “parole”—a discretionary legal status that permits them to enter and wait a year to receive a green card to stay permanently.

This system has served the United States extraordinarily well. Because Cubans who enter illegally cannot apply for a green card, border security is enhanced as they never try to sneak past Border Patrol. Instead, they just line up and turn themselves in at a port of entry. They show their Cuban passports, receive background checks, and then are admitted. The United States has very few unauthorized immigrants from Cuba precisely because all Cuban immigrants who make it into the country are paroled and adjusted to legal permanent residency.

America—and specifically Miami—has benefited enormously both economically and culturally from the presence of Cuban immigrants. After the Mariel boatlift that initially brought about 125,000 refugees to Florida, Miami’s population has grown much faster than other cities. Despite often arriving destitute, U.S. Cubans today have achieved the same median income as all Hispanics and actually have the highest rate of home ownership. The Kauffman foundation ranked Miami in the top two cities in the entire country for entrepreneurship in 2016, driven in part by its large immigrant population. Miami also has the best ranking in the state for upward mobility.

Most importantly, U.S. immigration policy has allowed 10 percent of all Cubans to escape the most tyrannical regime in the hemisphere. This policy is a direct assault on a regime that preys on its own people, and for this reason, the regime has repeatedly condemned it. President Obama said that the United States will now treat “Cuban migrants the same way we treat migrants from other countries.” But Cuba is not like all other countries. It is the only dictatorship on America’s side of the world. As I wrote in the Miami Herald last year:

The basic principle that people should not be treated differently based on national origin is valid, but Cubans receive special treatment not due to where they are from, but due to how they are treated where they are from. Cubans aren’t treated uniquely because they are Cubans, but because, according to Freedom House, Cuba is the only “unfree” country in the Western Hemisphere.

The communist system has no electoral process, political dissent is a criminal offense, corruption is rampant, independent media is banned, and all forms of everyday activities are regulated, including internal movement. Cuba is the 12th most unfree country in the world. It is less free than Iran and South Sudan. Even communist China received a higher score. No other country in the Americas comes close. In 2015, the pretend socialists in Venezuela were still 50th and ranked “partly free.” Haiti and Honduras came in at 57th and 62nd respectively. This is why Cubans are singled out.

Congress stated in 1996 that the law would end when “a democratically elected government in Cuba is in power.” As long as Cuba remains unfree, America will continue to welcome Cubans. Rather than repeal this principle, Congress should expand it to any country in our part of the world that is unfree. 

The fact remains, however, that President Obama cannot end the Cuban Adjustment Act (CAA) itself, which guarantees permanent residency after one year to any Cuban who legally entered the United States. Because the normal asylum system is so backlogged, this change could result in Cubans filing asylum claims under the normal system, as Central Americans do, and waiting in line for a year before applying for a green card under the CAA as they always have. Ultimately, this could dilute the impact of the policy shift.

Nonetheless, the current asylum system, which is already massively backlogged, will only grow more so as a result. At a time when a record number of asylum seekers from Central America are coming to the border, the United States is going to throw the Cuban refugees in with the rest, making a dysfunctional system that much more broken. It will also increase illegal immigration as Cubans will know that they can no longer be guaranteed admission, and those who believe that they will have their asylum claims quickly dismissed will seek illicit means of entry.

Some people claim that the only reason that so many immigrants are coming right now is that they fear that the administration would do exactly what it has just done by changing the law. But the fact is that the rise in Cuban arrivals in recent years started before President Obama announced any changes in Cuban policy. Its true causes are 1) the Cuban regime’s relentless assault on human rights, and 2) its decision to end restrictions on travelling abroad, which has led many oppressed Cubans to seize the chance to leave.

Despite President Obama’s hopeful message after the death of Fidel Castro, the Cuban government continues its oppressive policies. Nearly 10,000 people were arbitrarily arrested in 2016 alone, and there was a particularly large surge of arrests after Castro’s death, demonstrating that his death means little.

Donald Trump, whose statement condemning the Cuban dictator after his death had more moral clarity than any single statement that the president-elect has ever made, should immediately reverse this policy upon assuming office. The United States should honor its commitment to remain open for as long as the electoral process in Cuba remains closed to the Cuban people.

Global Science Report is a feature from the Center for the Study of Science, where we highlight one or two important new items in the scientific literature or the popular media. For broader and more technical perspectives, consult our monthly “Current Wisdom.”

A new paper has been published in the journal Geophysical Research Letters that examines trends in heavy rainfall amounts across the U.S. The paper is authored by Newcastle University’s Renaud Barbero and colleagues, and, to summarize, finds that the heaviest rainfall events of the year have been increasing in magnitude since 1951 when averaged across nearly 500 stations distributed across the U.S. (note: results from individual stations may differ from the general finding).

Someone with a critical eye might ask the real question, which is “how much?” That such a number does not jump out of this paper—a cynic would say—probably means it is very small. Read on and you will find the answer.

That rainfall on the rainiest day of the year is increasing is, of itself, hardly surprising considering that the total annual rainfall amount averaged across the U.S. has also been increasing during this same period (again, results from individual locations/regions may (and do) depart from this generality).

Changes in heavy rainfall like this are often luridly described as a “disproportionate increase” in extreme events, or that extreme precipitation increases are “worse than expected.”

This is not the case—or at least wasn’t the case when we published a paper in the International Journal of Climatology on this very subject back in 2004. In that paper we found the same thing that Barbero and colleagues found with regards to the heaviest daily rainfall events of each year—they were getting heavier. But, we were careful to note, that so too was the total yearly rainfall, and as a result, the increase of the heaviest daily rainfall events was completely proportional to the increase in annual rainfall increase. In other words, the increase on the wettest day each year was neither “disproportionate” nor “worse than expected.”

In fact, this result was not a surprise at all. It’s basic climatology.

Let’s have a look, and while we’re at it, we’ll update our old analysis (which ended with data from 2001) with data available from a new “extremes” dataset which runs through 2010.

The “extremes” data set we’ll use is the one compiled by Markus Donat and colleagues and includes gridded data (3.75° longitude x 2.5° latitude grid) on annual daily rainfall extremes as well as data on annual total rainfall. This data is available using this handy on-line tool. We selected the region of interest as shown in Figure 1.

Figure 1. Study area used in this analysis.

Now, let’s look at the relationship between total annual rainfall and daily maximum rainfall for each year, averaged across the gridcells contained in our study area, as shown in Figure 2. Years with more total rain also have more rainfall on the wettest day of the year. This is no different during the first half of the 20th century (1901-1950; blue points) than it has been in the time since (1951-2010; red points). Any human-caused climate change (which should be more evident in the latter period) hasn’t led to a change in this general climatological relationship.

Figure 2. The average of the annual total precipitation (across the grids in the boxed area in Figure 1) plotted against the average of the annual daily maximum precipitation for two different time periods.

Let’s dig in a bit further. In Figure 3a (top) we plot the amount of precipitation falling during the wettest day of the year averaged across our study area. The data run from 1901-2010 and show a small, but statistically significant increase. Figure 3b (middle) shows the average total annual precipitation over the same period. Again, a slight and significant increase. And finally, Figure 3c (bottom) shows that the proportion of annual precipitation delivered during the wettest day of the year (Figure 3a divided by Figure 3b) exhibits no overall trend. In other words, the relationship between total rain and heavy rain remains unchanged. Each of these precipitation histories shows a good bit of temporal variation. If human-caused climate change is playing a role here, it is neither readily discernible nor resulting in unusual behavior.

Figure 3. (a, top) The daily precipitation on the wettest day of the year averaged across the region depicted in Figure 1, 1901-2010; (b, middle) The total annual precipitation averaged across the region depicted in Figure 1, 1901-2010; (c, bottom) the proportion of total annual precipitation delivered during the wettest day of the year, 1901-2010.

From Figure 3a we can also see the actual increase in the amount of rainfall falling on the rainiest day of the year. It’s just a tad more than one-tenth of an inch. We submit that that isn’t “extreme,” “disproportionate” or even “consequential.” It’s just a very small number. To emphasize to the point of ridiculousness, hold your thumb and index finger a tenth of an inch apart and imagine the horrific damage that this increase in rain must cause!

In fact, if global warming has a hand in increasing annual precipitation totals, this would seem as a good thing (positive externality) considering the anticipated increase in water-use demand. According to a recent report from the Pacific Institute on our nation’s water-use trends:

We conclude that considerable progress has been made in managing the nation’s water — but the current pace is not likely to counter the demands of continued population and economic growth, climate change, and increasing tensions over scarce water resources. National water use remains high, and many freshwater systems are under stress from overuse. While there is reason to believe this may be changing, we must continue efforts to improve water-use efficiency in our homes, businesses, and on our nation’s farms.

All of this confirms that our original finding from 2004 continues to remain valid and thus our conclusions from that paper are worth repeating:

Our results support the contention that, where changes are significant, there is an increase in the amount of rain occurring on heavy rain days. However, our results provide no support for the argument that the increase in total annual rainfall observed across the USA is disproportionately occurring on the wettest days — a contention that may have arisen from methodological constraints rather than true changes in the nature of precipitation delivery…

Our results argue strongly that the increase in rainfall in the coterminous 48 states that has been observed in the last 100 years has not resulted in any systematic disproportion in the percentage of that increase allocated to the heaviest rain days.

But then, as is the case now, the actual amount of the increase is so small as to be operationally meaningless, even if it were caused by emissions of dreaded carbon dioxide (a hypothesis that is rather difficult to prove).  The same holds true for the large majority of other impacts from anthropogenic climate change—despite what you may read in the other media outlets.

 

References:

Barbero, R., H. J. Fowler, G. Lenderink, and S. Blenkinsop, 2016. Is the intensification of precipitation extremes better detected at hourly than daily resolutions? Geophysical Research Letters, doi: 10.1002/2016GL071917.

Donat, M. G., et el., 2013. Updated analysis of temperature and precipitation extremes indices since the beginning of the twentieth century: The HadEX2 dataset. Journal of Geophysical Research-Atmospheres, 118, 1-16, doi: 10.1002/jgrd.50150.

Michaels, P. J., P. C. Knappenberger, O. W. Frauenfeld, and R. E. Davis, 2004. Trends in precipitation on the wettest days of the yeas across the contiguous USA. International Journal of Climatology, 24, 1873-1882, doi: 10.1002/joc.1102.

China’s first and only aircraft carrier, the Liaoning, recently passed through the Taiwan Strait after conducting exercises in the South China Sea. Initial reporting and commentary on the transit paint a pretty dire picture. In The New York Times Bonnie Glaser of the Center for Strategic and International Studies called the transit “a show of force” that may be seen “as a test of U.S. resolve” by the incoming Trump administration. The BBC called the transit “the latest escalation amid tensions” between China and Taiwan, and Camila Domonoske’s story at NPR called it “a provocative move.”

Such coverage of the Liaoning’s transit is emblematic of the high degree of attention paid to China’s military exercises, but it also is emblematic of a tendency to read too much into these exercises.

Military exercises involving Chinese air and naval forces have received a lot of focus in recent months. The Liaoning’s first live-fire exercises in mid-December 2016 received a good deal of coverage. Earlier that month, China flew a “nuclear-capable” H-6 bomber aircraft over the South China Sea. In September, the South China Sea played host to Russian and Chinese naval forces participating in a joint naval exercise.

These exercises stir up plenty of angst within the China-watching community over Beijing’s strategic intentions, and are often used to portray China as a dangerous actor. Framing military exercises as signaling tools is not a bad thing, and such analysis can provide useful information about state behavior. However, the reaction to the Liaoning’s transit of the Taiwan Strait and other recent Chinese exercises demonstrates the limitations of this approach.

For example, while the Liaoning was in the Taiwan Strait it stayed to the west of the strait’s midline and (as of yet) there is no evidence that it launched fighter aircraft during its transit or even had aircraft on the flight deck while it passed through the strait. Such behavior is consistent with the Liaoning’s previous transit of the strait in late 2013. The timing of the transit, coming around a month after Trump’s phone call with Taiwan’s president and hints at dropping the One China policy, bolsters the perception of the exercise as a signal. However, given the recent transit’s similarity to the 2013 transit, it is not obvious that China is trying to signal a challenge to Taiwan or Trump beyond the longstanding military challenge it has posed to Taiwan. If the carrier traveled to the east of the strait’s midline or scrambled aircraft then an intimidating signal would be obvious, but behaving in a consistent way suggests continuity in China’s approach rather than reactionary behavior in response to recent events. Therefore, interpreting the Liaoning’s recent transit of the Taiwan Strait as a signal of intimidation or test of American resolve is problematic.

Analysts should keep an eye on Chinese military exercises and movements in East Asia, but they should not put each instance under a microscope looking for a signal. Instead, analysts ought to look at the character of the exercises and movements over time to identify consistencies and deviations. This is where the most valuable signaling information exists. Consistent behavior signals a degree of stability, while deviations signal a change in Beijing’s calculus that could either be a one-off response or become a “new normal” in their behavior.

Divining deeper political or strategic intentions from military exercises has utility, but it is important to remember that such analysis is fraught with difficulties and is an imperfect approach. The tendency to interpret every exercise or movement as a signal of aggression or intimidation can lead to overreaction and inadvertent escalation. Looking at exercises over a long-term period and teasing out consistent behavior and deviations would provide much more useful information on the signals that China is trying to send. 

Some on the left are still blasting judges as activist for standing up to Obama administration assertions of executive power in the regulatory sphere. That might prove shortsighted considering what’s on the agenda for the next four years, or so I argue in a recent piece in the Providence Journal (alternate version).

I take particular exception to a Bloomberg View column in which Noah Feldman, professor at Harvard Law, assails federal district judge Amos Mazzant III for enjoining the Department of Labor’s overtime rule for mid-level employees. In a gratuitous personal jab, Feldman raises the question of “whether Mazzant sees an opportunity for judicial advancement with this anti-regulatory judgment” in light of the election results, though he offers not a particle of evidence that the judge, an Obama appointee, is angling for higher appointment under the new administration.

The problems with the overtime rule were both substantive and procedural. As I mention in the piece, “more than 145 charitable nonprofits signed a letter begging the department to allow more than a 60-day public comment period. It refused.” That letter is here (via, see Aug. 5, 2015 entry). I also mention that a court recently struck down the Department of Labor’s very bad “persuader rule” that would have regulated management-side lawyers and consultants.

After pointing out that many of the rulings restraining the Obama administration have been written or joined by Democratic-appointed judges, I go on to say:

Judges rule all the time against the partisan side that appointed them.

And we’ll be glad of that when the Trump executive orders and regulations begin to hit, and Republican-appointed federal judges are asked to restrain a Republican White House, as they have often done in the past.

We should be celebrating an energetic judiciary that shows a watchful spirit against the encroachments of presidential power.

Read the full piece here or here [cross-posted from Overlawyered]

Yesterday in this space Gene Healy previewed last night’s farewell speech by President Barack Obama before an arena of supporters in Chicago’s McCormick Place. I wrote up my own reaction to the address for the National Interest and the results are here. The speech had little policy and less law in it, but the President did take up some themes of national unity and not demonizing opponents that – timed as they are amid confirmation season – may turn out to have a short shelf life.   

As I note, “Obama’s words have always held broader appeal than his policies.” And this President shows at best limited self-awareness of why his initiatives have met with so much opposition, as on topics of economic intervention: “his administration’s implacably pro-union policies, along with its many new mandates on employers and heavy regulatory hand in general, played a key role in driving business-oriented voters home to the Republican Party in recent elections.”

In his post-Presidency Obama plans to take up the worthy cause of redistricting reform, where I am cautiously optimistic he may do some good. And I also liked the passage in which he lauded the Founders’ “essential spirit of innovation and practical problem-solving,” a spirit

born of the Enlightenment, that made us an economic powerhouse – the spirit that took flight at Kitty Hawk and Cape Canaveral, the spirit that cures disease and put a computer in every pocket.

It’s that spirit – a faith in reason, and enterprise, and the primacy of right over might, that allowed us to resist the lure of fascism and tyranny during the Great Depression, and build a post-World War II order with other democracies, an order based not just on military power or national affiliations but on principles – the rule of law, human rights, freedoms of religion, speech, assembly, and an independent press.

That order is now being challenged – first by violent fanatics who claim to speak for Islam; more recently by autocrats in foreign capitals who see free markets, open democracies, and civil society itself as a threat to their power.

With perhaps a word or two changed here or there, that’s a passage I would have been happy to write myself. I hope it augurs well for his public service as a former President. Read the whole thing here.

Becoming an EMT in Missouri requires 144 hours of training, including instruction in CPR, trauma care, handling hazardous materials, and medical ethics. But Ndioba “Joba” Niang and Tameka Stigers don’t want to be EMTs. They both want to run salons offering traditional African-style hair braiding. Braiding hair, however, requires at minimum 1000 hours of training, 90 percent of which isn’t even generally relevant to African-style hair braiding.

That’s because the Missouri Board of Cosmetology and Barber Examiners (an administrative board made up primarily of practicing barbers and cosmetologists, as well as the owners of in-state cosmetology/barbering schools) has declared that anyone wanting to braid hair professionally must be a licensed cosmetologist or barber—despite the fact that neither licensing program offers any training whatsoever in the services Niang and Stigers intend to offer. Defended as necessary to protect Missouri’s consumers from the health, safety, and fraud risks caused by untrained hair braiders, this licensing regime is actually a thinly disguised cartel in which insiders have built up arbitrary and expensive licensing requirements in an effort to limit competition.

It is for this reason that Niang and Stigers, with the assistance of the good people at the Institute for Justice, have filed suit challenging Missouri’s licensing regime as a violation of the Fourteenth Amendment’s Due Process and Equal Protection clauses. A federal district court upheld the licensing regime, using an extremely deferential form of judicial review that requires judges to blindly accept the government’s justifications of its actions, and even supply their own if they don’t find the government’s compelling enough. Under that form of review, as long as there is any potentially conceivable “rational basis” for the law, courts will not strike it down.

Cato, joined by the Reason Foundation, Individual Rights Foundation, and Senator Rand Paul (R-KY), has filed an amicus brief urging the U.S. Court of Appeals for the Eighth Circuit to reverse the district court and reject its rubber-stamp approach to the core judicial function of keeping the other two branches in check. The district court’s application of the rational basis test undermines the constitutional guarantee of procedural due process by denying plaintiffs both the right to a meaningful opportunity to be heard and to have their case judged by an impartial tribunal.

Deprivations of economic liberty require meaningful judicial scrutiny that actively engages with the facts of the case without putting a finger on the scales in favor of the government. As the Supreme Court has held in other contexts, meaningful scrutiny is especially important in situations like this one, where there are strong indications that the government’s proffered justifications are just pretextual smokescreens for illegitimate anti-competitive cartel behavior—and when the victims of the regulations lack sufficient numbers and resources to overcome the cartel through political means.

In Niang v. Carroll, the Eighth Circuit should reverse the lower court because Missouri’s licensing scheme for traditional African hair braiders isn’t rationally related to any legitimate governmental purpose.

The debate over transgender rights has risen in prominence in recent years, with the fight over access to public restrooms and locker rooms receiving particularly heavy public attention. The legal question at the heart of the first such lawsuit to reach the Supreme Court, however, is one not of civil rights, but of administrative law: Should courts defer to agency interpretations of their own regulations, even when those interpretations constitute major, substantive changes to public policy via informal, non-binding pronouncements?

G.G. is a transgender high school student—minors are identified by letters in sensitive cases—who argues that Gloucester (Va.) High School’s policy disallowing him from using the facilities that correspond with his preferred gender identity violates federal law (Title IX of the Education Amendments) regarding sex discrimination in education. Upon being informed of G.G.’s conflict with the Gloucester County School Board, James Ferg-Cadima—a civil servant in the U.S. Department of Education’s Office of Civil Rights (OCR)—wrote a letter purporting to interpret the relevant regulation. This letter stated that “[w]hen a school elects to separate or treat students differently on the basis of sex in [situations like this], a school generally must treat transgender students consistent with their gender identity.”

While the federal district court rejected this interpretation, the U.S. Court of Appeals for the Fourth Circuit reversed that ruling and deferred to the agency’s new understanding of its Title IX regulations. The Supreme Court took the case and Cato, along with the Cause of Action Institute and four respected law professors (Jonathan Adler, James Blumstein, Richard Epstein, and Michael McConnell), has filed an amicus brief supporting the school board.

We do so not because we necessarily oppose OCR’s position as a matter of policy or even whether the relevant federal law can properly be read to support that policy—those are questions for another day—but because we oppose its unconstitutional method of enacting that policy. OCR seeks to change federal law not through the procedures spelled out in the Administrative Procedure Act, but via an informal, unpublished letter written by a low-level bureaucrat.

Current Supreme Court precedent under Auer v. Robbins (1997) says that courts must give such agency interpretations of their own regulations controlling deference. But deferring in this way incentivizes agencies to write vague regulations because they will then be free to reinterpret them at a later date without having to go through the trouble and expense of the rulemaking process—changing the law with no notice to regulated entities or the general public. Auer deference also allows executive agencies to consolidate legislative and judicial power by effectively rewriting regulations beyond the scope delegated by Congress and then judging for themselves whether they’ve overstepped that authority.

The Court appears unwilling to overrule Auer in its entirety, but we call on it to take this opportunity to limit Auer to a more appropriate scope by holding that only agency interpretations that have received the public scrutiny of notice-and-comment rulemaking merit judicial deference.

One final note: The justices are expected to hear Gloucester County School Board v. G.G. this spring and decide it by the end of June, but the case could be made moot before it’s heard or decided. The Trump administration could simply withdraw the Ferg-Cadima letter or take other actions that would moot the case and leave the important issues it raises unsettled. Considering the importance Gloucester County may hold for the state of administrative law, we chose to file our amicus brief under the assumption that it will remain a live controversy—and to make a strong statement about constitutional structure and the rule of law.

If you’re a Baltimore resident there is a chance that last year you spotted a Cessna airplane overhead at 8,500 feet. You’d be forgiven for thinking that this was nothing out of the ordinary. Yet reporting revealed that this plane was doing something extraordinary. It was carrying a persistent surveillance cameras system, allowing analysts working with Baltimore police to access what its designer calls “Google Earth with TiVo.” The surveillance cameras mounted on the airplane can cover an area of 30 square miles. With the help of the equipment police could track where suspects came from before a shooting or theft and where they went afterwards.

But the use of this surveillance technology was kept secret. When the program began the mayor, members of the city council, prosecutors, and public defenders were left in the dark.

The Baltimore aerial surveillance program is one of the most prominent recent reminders of law enforcement surveillance that can take place without public knowledge or approval.

Such secrecy is the target of a recently proposed California bill. If enacted into law the bill would require that police departments disclose information about the surveillance equipment they use on or by July 1, 2018. The bill would also prohibit police from acquiring new surveillance tools without approval from local officials.

The bill would cover “any electronic device or system primarily intended to monitor and collect audio, visual, locational, thermal, or similar information on any individual or group” including biometric tools, cell-site simulators, drones, radio-frequency identification technology, and more. 

According to the bill, police departments that wish to use such gadgets would have to submit a “Surveillance Use Policy,” which will have to be publicly available and presented to local officials at an open hearing. Police departments submitting the policy will have to include not only the type of surveillance equipment in question but also the purpose of the equipment, the types of data it collects, and an outline of who is using the equipment. The bill also requires police departments to outline how they are keeping collected information secure as well as how long such information will be retained.

The obvious objection to such legislation is that it forces police to reveal their hands to criminals. After all, if police publicly disclose a new surveillance tool criminals could change their behavior accordingly, thereby becoming harder for police to surveil. The FBI used this very line of argument to justify the secrecy surrounding StingRays when outlining StingRay policies to Baltimore police.

Nonetheless, local lawmakers should seek more transparency from law enforcement when it comes to the tools they use to snoop on the public.

The least objectionable kind of surveillance involves data gathered pursuant to a warrant based on probable cause. In such cases police have reason to believe that someone is engaged in illegal activity and a judge is aware of what the police are up to. If police suspect that a man is involved in a kidnapping ring they could ask a judge to issue a warrant allowing them to wiretap his phone, thereby gathering evidence for a prosecution. In this kind of situation law enforcement identify a target of surveillance and use technology to uncover information that the suspect considers private (e.g. telephone calls).

But surveillance tools also allow police to gather vast amounts of data about the public before searching for wrongdoing. My colleague Jim Harper has labeled this kind of surveillance a “pre-search,” in which police first gather information and then scour through it to find evidence of criminal wrongdoing.

Baltimore’s aerial surveillance program is an example of “pre-searches” in action, but it’s hardly the only example. StingRays gather data on innocent people’s phone activity. Modern surveillance tools also allow law enforcement to search social media for content in a specific location, such as a protest.

Police body cameras are often presented as valuable tools for increasing police accountability. Yet without adequate restrictions in place they are valuable tools for surveillance, especially if merged with facial recognition technology. At the moment drones are comparatively rare law enforcement tools, but as drone technology improves they will proliferate and become more intrusive. Police using drones for surveillance will inevitably capture data related to law-abiding citizens. Indeed, ACLU attorney David Rocah noted that it’s inevitable that as the kind of persistent wide area surveillance technology used in Baltimore improves it will be mounted on drones.

Many people do not consider how much information about their public activities can be collected and analyzed. In her United States v. Jones (2012) concurrence Justice Sotomayor made this very point, writing, “I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on.”

At a time when such intrusive surveillance is possible it’s important that the public is informed about their local police department’s surveillance capabilities. Some surveillance technology does only snoop on the bad guys, but we shouldn’t forget that much of government surveillance also collects data concerning peaceful and law-abiding citizens.

Another day, another distortion from the Grey Lady on school choice.

In its quest to build a false narrative about Betsy DeVos, nominee for Secretary of the U.S. Department of Education, the New York Times has continuously misled readers about the effects of charter schools in Detroit. The latest example comes from today’s editorial:

[DeVos] has also argued for shutting down Detroit public schools, with the system turned over to charters or taxpayer money given out as vouchers for private schools. In that city, charter schools often perform no better than traditional schools, and sometimes worse.

The NYT editors based their claim on a (faultyTimes op-ed from November in which Douglas Harris made the following claim:

As one of the architects of Detroit’s charter school system, [DeVos] is partly responsible for what even charter advocates acknowledge is the biggest school reform disaster in the country. […] One well-regarded study found that Detroit’s charter schools performed at about the same dismal level as its traditional public schools.

At the time, Ramesh Ponnuru of National Review called out Harris for misrepresenting the Stanford CREDO study he had cited: “Follow the link to that ‘well-regarded study,’ and the results of Detroit’s charter schools do not sound nearly as helpful to Harris’s case as he suggests.”

Back in July, I highlighted the same report’s findings to dispel a similarly misleading description in the NYT:

As shown in this table from page 44 of the CREDO report, nearly half of Detroit’s charter schools outperformed the city’s traditional district schools in reading and math scores, while only one percent of charter schools performed worse in reading and only seven percent performed worse in math.

To claim, as the NYT does, that Detroit “charter schools often perform no better than traditional schools, and sometimes worse” based on these figures is a highly distorted way of presenting the data. It’s equally true to say “Detroit charter schools almost always perform as well or better than traditional schools.” Of course, a news outlet interested in presenting unbiased facts would have written that about half of Detroit’s charters perform better than the traditional district schools, about half perform about the same, and a small number perform worse. That the NYT went with the first description is telling.

As Ponnuru notes, the 2012 CREDO study concluded: 

Based on the findings presented here, the typical student in Michigan charter schools gains more learning in a year than his [traditional public school (TPS)] counterparts, amounting to about two months of additional gains in reading and math. These positive patterns are even more pronounced in Detroit, where historically student academic performance has been poor. These outcomes are consistent with the result that charter schools have significantly better results than TPS for minority students who are in poverty.

Likewise, the CREDO’s 2015 nationwide study found that 60 percent of charter schools outperformed their district school competition in math and 51 percent outperformed them in reading. By contrast, the district schools outperformed only 8 percent and 4 percent of Detroit charters in math and reading, respectively. This isn’t to say that the Detroit charters are performing well by national standards. They are not. But in a city plagued with all sorts of problems, the best evidence we have shows that they are outperforming the district schools.

Harris responded by shifting the goalposts by expressing skepticism of the very CREDO study he had previously described as “well-regarded” when citing it in support of his view, claiming that the positive “CREDO results may reflect cherry-picking” among other reasons why we shouldn’t take these results “literally.” For the record, I am not entirely persuaded that the matching efforts in the CREDO study were well done, but one cannot cite a study in support of one’s view only to dismiss it when it is pointed out that the study’s conclusion contradicts that view. As Ponnuru responded:

But in the original op-ed, the one in the New York Times that will be read by far more people than either my Corner post or his follow-up, Harris raised no concerns about the study. He leaned on it and called it “well-regarded.” And the researchers themselves presented an interpretation. He is implicitly finding fault with it now, even if he is unwilling to come out and say so; but he did not find fault with it even implicitly in the Times. If he had written, “While one well-regarded study concluded that Detroit’s charter schools had shown signs of success, there are reasons not to take its findings literally,” I would not have criticized him. What he wrote instead was a misrepresentation of the study. And he is now covering his tracks.

How well Detroit’s charter schools are performing is a question I will leave for others (although several of Harris’s arguments on the point seem to me weak). Whether Harris can be trusted to present facts on this question fairly and accurately, on the other hand, has been established.

 Whether the New York Times can be trusted to present facts on this question fairly and accurately has also been established.

President Obama will deliver his Farewell Address tonight to a capacity crowd in Chicago’s McCormick Place convention center. It’s the right venue for the speech, the president explained last week, because Chicago is “where my career in public service began.”

Indeed, it’s the city where, as a young state senator in 2002, Obama gave an antiwar rally speech railing against the “dumb,” “rash” rush to war in Iraq; and where, as a presidential candidate five years later, he promised to “turn the page on the imperial presidency” and usher in “a new dawn of peace.” And yet, 2008’s “peace candidate” will leave office as the first two-term president in American history to have been at war every day of his presidency, having dropped over 25,000 bombs on seven countries in 2016 alone.

Given that record, it seems unlikely that Obama will use his Farewell Address to warn against excessive foreign entanglements or the dangers of the military-industrial complex. But you never know: our 44th president has never lacked chutzpah. In a speech to US troops last month, he denounced the “false promise” that “we can eliminate terrorism by dropping more bombs,” and piously proclaimed that “democracies should not operate in a state of permanently authorized war.”

An audacious statement—given that it is Obama himself who’s made perpetual warfare the new normal, and the president the ultimate “decider” in matters of war and peace. Where George W. Bush secured congressional authorization for the two major wars he fought, Obama has launched two undeclared wars (in Libya and against ISIS), ordered 10 times as many drone strikes as his predecessor, and this summer bombed six different countries just over Labor Day weekend. And it is Obama who is largely responsible for warping the 2001 Authorization for the Use of Military Force—passed three days after 9/11 to target Al Qaeda and the Taliban—into an enabling act for endless war, anywhere in the world.

Through it all, Obama has maintained the pose of a “reluctant warrior,” repeatedly lecturing the country about the dangers of an imperial presidency while forging new frontiers in the expansion of executive power. “Unless we discipline our thinking, our definitions, our actions,” he chided in May 2013, “we may be drawn into more wars we don’t need to fight, or continue to grant Presidents unbound powers.” In the same speech, Obama even had the gall to quote James Madison’s admonition that “no nation could preserve its freedom in the midst of continual warfare.”

Two weeks after Obama invoked Madison’s warning, the public got new evidence of its continued relevance. June 2013 brought the first of a series of revelations about secret dragnet data-collection programs that targeted Americans in the name of protecting them from terrorism. In the quest to “collect it all,” the National Security Agency had built what NSA whistleblower Edward Snowden termed a “turnkey tyranny.” As former NSA counsel Susan Hennessy has observed: “No one should kid themselves about the idea that in the wrong hands, [the agency] couldn’t do quite a bit that’s very scary.”

With Trump’s inauguration near, Obama has described the transfer of presidential power as ”a relay race” where he’ll pass the baton to his successor. In private, he’s occasionally used a more ominous metaphor: leaving “a loaded weapon” behind for the next president. In 10 days Obama will pass that weapon on to Donald J. Trump, a man he’s flatly declared “unfit” for the office—someone who can’t be trusted with a Twitter account, let alone the nuclear launch codes.

So it’s only fair that on Obama’s recent “legacy tour,” he’s faced some awkward questions about the vast new powers he’s forged. Not to worry, Obama told NPR’s Steve Inskeep recently, your president has been hard at work building “guard rails internally…. a whole series of processes to guard against government overreach, to reform some practices that I thought over time would threaten civil liberties.” But those self-imposed restraints won’t bind President Trump—they don’t even bind President Obama, who’s also spent his last months in office adding new fronts and targeting new enemies in the “Forever War.”

In keeping with the Washington-Eisenhower tradition, the outgoing president plans to offer some “admonitions” in his address tonight. He’s already used Madison’s warning about “continual warfare,” but if he’s looking for something equally prescient, Obama might try one of the lesser-known passages from Washington’s Farewell Address. In it, our first president warned of “the disorders and miseries [that] gradually incline the minds of men to seek security and repose in the absolute power of an individual,” with the result that “sooner or later the chief of some prevailing faction… turns this disposition to the purposes of his own elevation on the ruins of public liberty.” 

The Economist is one of my favorite news sources. The writing is always clear and interesting, and I often agree with them on substance. Nevertheless, while I hate to give them a public reprimand, a recent piece by their Free Exchange columnist on Brexit contains a misleading point that needs to be addressed.  The author appears to equate the EU and the WTO, and says, in effect, why would UK voters accept being part of the WTO when they could not accept being part of the EU? Here’s the passage in question:  

It is puzzling that Brexiteers, whose campaign was summed up as “Vote Leave, take back control”, seem happy with the WTO option. The WTO is truly global, with only a handful of countries outside it (zealous as they are about sovereignty, Brexiteers do not want to join the ranks of Turkmenistan and Nauru). But forsaking one unelected, unaccountable bureaucracy in Brussels for another housed in a leafy district of Geneva seems perverse. WTO members are at the mercy of its “dispute-settlement” regime, which allows other countries to enforce penalties.

Having worked at the WTO, I know a thing or two about it. First of all, it is small. There are 634 staff in total (that includes administrative support). The budget for 2015 was a little less than 200 million Swiss francs.

More importantly, the WTO does not make any rules of its own. The WTO member governments agree to a set of rules (mostly related to constraining protectionism), and they can enforce the rules through a special dispute procedure.  However, governments ultimately make their own decisions about whether to comply.  If they really don’t want to change after having been found in violation of the rules, they can accept the trade sanctions imposed by others.

By contrast, the EU is a vastly different entity.  The European Commission alone employs 32,966 people and had a budget of over 3 billion euros in 2015.  The total EU budget for 2015 was around 162 billion euros.

The EU is still not considered to be a nation-state, but it is getting pretty close, and I think it’s fair to say that it offers a kind of supra-national governance. It has become famous for its regulations on obscure issues such as “marketing standards for bananas” (including their curvature), as well as broader issues such as “rules governing the manufacture, presentation and sale of tobacco and related products”.  And its enforcement mechanisms cannot be evaded in the way WTO obligations can be.

I don’t want to get bogged down here in the relative merits of being part of either institution.  The point here is simply that equating the EU and the WTO as two “unelected, unaccountable bureaucracies” misses the vast distinctions between the two.  It is not difficult at all to understand how someone might want Britain out of the EU while remaining in the WTO.

Here we go again. History repeats itself with classified-ad website Backpage.com’s announcement yesterday that it’s shuttering its “adult” section after years of unrelenting pressure from public officials at all levels of government. 

Most recently, the Senate’s Permanent Subcommittee on Investigations (PSI) hauled several Backpage.com officials before it for a public shaming without bothering to wait for a ruling on the legality of its “investigation.” In California, just before Christmas then-attorney general (now U.S. Senator) Kamala Harris refiled criminal charges against Backpage’s CEO and its former owners in the face of a December 9 ruling throwing her initial charges out.

These tactics represent a marked escalation since September 2010, when Craigslist caved in to pressure from a group of 17 state attorneys general and shut down its “adult advertisements” section. As a federal court had already ruled at that time—and numerous courts have held since—the government cannot assume that ads that mention sex are advertising illegal transactions, much less coercive sex-trafficking. Laws censoring such websites have been roundly and repeatedly held to violate the First Amendment.

But the law is one thing, and less-direct pressure tactics are quite another. It’s harder to hold government accountable when it tries to hide what it’s up to with public letters, demands, and investigations, even if meritless.

For years, Backpage has been the target (after Craigslist) of the same state AGs, members of Congress, and even local officials like Chicago’s vigilante-with-a-badge, Cook County Sheriff Thomas Dart. Backpage has fought these First Amendment battles and won almost all of them. Cato filed an amicus brief (along with DKT Liberty Project and the Reason Foundation) in its case against Sheriff Dart, who was running his own personal Operation Chokepoint to force the credit-card companies to sever ties with Backpage. 

Dart claimed he had written to the card companies only as “a father and a caring citizen,” but Seventh Circuit Judge Richard Posner saw through the ruse. He enjoined Dart’s campaign as a government organized boycott and a prior restraint. If not checked, Judge Posner wrote, such pressure tactics constitute “a formula for permitting unauthorized, unregulated, foolproof, lawless government coercion.”

And that’s what’s happening with the PSI investigation, which was styled as an inquiry into human trafficking, but has resulted in onerous subpoenas targeting Backpage’s editorial practices. Congress has broad investigatory authority that can be misused, as it was by Senator Joseph McCarthy when he chaired PSI. Honest investigations are perfectly salutary, but congressional subpoena power is particularly circumscribed when the First Amendment rights of the subpoena recipient are at issue, as they are here.

That’s why Cato again teamed up with DKT and Reason Foundation on an amicus brief in the D.C. Circuit, opposing PSI’s subpoena of Backpage CEO Carl Ferrer. Our brief showed that the PSI was improperly engaging in an effort to punish Ferrer and Backpage for running a website that publishes third-party content that the subcommittee finds offensive.

Although the subcommittee has repeatedly denied any ties to Dart, a trail of emails between PSI staff and the sheriff’s office suggests otherwise. Before the PSI served its first subpoena on Backpage, subcommittee counsel corresponded with Dart’s staff, praising the sheriff and assuring him that their investigation was “rapidly progressing down a parallel track.” When PSI issued its initial document subpoena, with five sets of demands that were identical to those served by Sheriff Dart.

The punitive rather than legislative nature of PSI’s investigation is further evidenced by the statements made by subcommittee members and other senators after Ferrer’s recent arrest on charges that also collide with Ferrer’s constitutional rights (and which were thrown out by a California court). Senators Rob Portman (R-OH) and Claire McCaskill (D-MO), the PSI’s chairman and ranking member, issued a joint statement in which they heralded the subcommittee’s specific role in bringing about the arrest. Senator Mark Kirk was even more explicit, saying, “This arrest means we are one step closer to holding Backpage accountable for underage internet sex trafficking through their site and stopping these illegal activities.” It could hardly be more evident that the subpoena was issued pursuant to the punitive aim of “holding Backpage accountable,” rather than a desire to study the issue of human trafficking or any other specific legislative need.

PSI’s subpoena to Carl Ferrer plainly fails the standards set forth for a valid exercise of the congressional subpoena power. The subcommittee did not identify a specific legislative need for the information; it did not show a compelling interest in obtaining the information nor a strong nexus between the information sought and the interest asserted; and it wielded the subpoena as a tool for punishing Ferrer for his operation of Backpage because it disfavored the content of the speech on Backpage. PSI’s overreach is emblematic of a disturbing pattern by legislative committees and state attorneys general of brandishing their subpoena power as a weapon to attack individuals and entities that engage in disfavored speech or conduct.

For example, the New York and Massachusetts attorneys general recently issued a civil investigative demand requiring ExxonMobil to produce all of its climate-change research analysis, its internal communications regarding climate change, and its communications with a dozen conservative and libertarian non-profits. Piggybacking on that investigation, the Virgin Islands attorney general issued a subpoena to the Competitive Enterprise Institute demanding that CEI turn over its research, communications, emails, statements, and drafts (over nearly a decade) regarding climate change and energy policy. Only after CEI moved for sanctions under the D.C. Anti-SLAPP Act did the attorney general withdraw the subpoena.

Given such awesome investigative power, it’s easy to see how the targets of investigations can be brought to heel by a government that disregards constitutional limits. It is sad, but understandable, that Backpage, like Craigslist before it, chose to shutter its entire “adult” section.

Imagine that you run a family daycare out of your home. You have no direct connection to the state government, but its bureaucrats decide that because you lack an “organized voice” as a profession, they’re going to appoint a union representative to speak on your behalf. So you get a union you didn’t choose and which you refuse to join. This union is now representing your “interests” before the state, which isn’t even your employer. All this despite the fact that you might not even agree with what the union is saying!

It sounds far-fetched, but this is what’s happening to Mary Jarvis and several others in New York. These plaintiffs have sued the Empire State, arguing that the imposition of an exclusive representative violates their First Amendment freedom of association.

In the 2014 case Harris v. Quinn, the Supreme Court ruled that states that unionize healthcare aides and other home-based workers who are “not full-fledged public employees” cannot require those who do not wish to join the union to pay fees to support it. This new case asks the question Harris left unanswered: May a state even mandate exclusive representation for those who are “not full-fledged public employees”—or not employees of the state at all?

The U.S. Court of Appeals for the Second Circuit said that the case is easily resolved under Abood v. Detroit Board of Education (1977)—which allowed the imposition of “agency fees” on union nonmembers—and does not require further First Amendment scrutiny. Abood, however, is like a house built on the sand: It treated the First Amendment concerns public unions (should) raise as already resolved by earlier cases when in fact those cases merely resolved the question of whether Congress has the constitutional authority to regulate those public unions. Abood’s reliance on the notion of “labor peace”—which was significant in those old cases but shouldn’t be a valid First Amendment interest—conflicts with the First Amendment’s ban on compelled speech and association absent a substantial government interest.

Although the Second Circuit treated this case as automatically resolved under Abood, it would actually be a vast expansion of precedent to say that “labor peace” justifies forcibly unionizing at-home workers who are independent from the state government. States are already doing this in a number of jurisdictions—including in the First Circuit, which recently upheld a similar Massachusetts law that Cato earlier urged the Supreme Court to hear—but expanding Abood here would enable the states to mandate exclusive representation for almost any private business.

Where does it stop? Cato has filed a brief asking the Court to answer that question once and for all, and ultimately to rule that Abood should not be read to give the states free rein to unionize individuals at the expense of their First Amendment rights. The case is Jarvis v. Cuomo.

In 2014, the Independence Institute—a Colorado think tank—wanted to run a radio advertisement supporting the Justice Safety Valve Act, a bill granting federal judges greater discretion in sentencing nonviolent offenders. The text of the ad asked listeners to “call Senators Michael Bennet and Mark Udall”—Colorado’s two senators at the time—and tell them to support the bill.

But under the Bipartisan Campaign Reform Act of 2002 (BCRA, better known as McCain-Feingold), any organization that spends at least $10,000 on “electioneering communications” in one year is required to make several public disclosures, including “the names and addresses of all contributors who contributed an aggregate amount of $1,000 or more” toward the advertisement. Further, an “electioneering communication” is defined as any broadcast that “refers to a clearly identified candidate for Federal office” within 60 days of a general election. Since Udall was running for reelection that year, the ad would have qualified even though it had nothing to do with Udall’s campaign.

The Independence Institute challenged the rule as an unconstitutional burden on its First Amendment right to speak on issues of public concern. After losing before a three-judge district court, the Institute has now appealed directly to the Supreme Court. Cato, joining the Institute for Justice, has filed a brief urging the Court to grant the case a full hearing on the merits.

We make two broad points. First BCRA’s disclosure provision is undeniably content-based, which should subject it to strict scrutiny under the First Amendment (meaning the government needs to provide a compelling justification). The law applies only if a speaker chooses to make reference to a candidate for office, so the law expressly draws distinctions based on the expressive content of speech.

Second, mandatory-disclosure laws chill speech by forcing people to surrender their “privacy interest in keeping personal facts away from the public eye,” as the Supreme Court put it in U.S. Department of Justice v. Reporters Committee for Freedom of Press (1989). In the context of reviewing disclosures made under the Freedom of Information Act, the Court has recognized that “embarrassment in … social and community relationships” is among the consequences of disclosure that “must be given great weight.” U.S. Department of State v. Ray (1991).

Exactly the same analysis holds true for donors to advocacy organizations. For many people—without tenure, without salary protection, and without security details—government-mandated disclosure of their political leanings and personal data is a real barrier to political participation. Forcing people to divulge their personal information threatens to expose them to reprisals, and this deterrent effect is pervasive precisely because it is impossible to predict whether your viewpoint will trigger retaliation.

BCRA’s disclosure rule is content-based, intrudes on speech and association, and has not been shown to serve a legitimate governmental interest. Because enforcement of the rule raises a substantial question under the First Amendment, the Court should take up Independence Institute v. FEC and ultimately overturn the district court.

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