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Economists and (classical) liberals have long criticized the failures of government planning, from Hayek and Mises and John Jewkes to even Robert Heilbroner. Ron Bailey wrote about centralized scientific planning, Randal O’Toole about urban planning, Jim Dorn about the 1980s enthusiasm for industrial planning, and I noted the absurdities of green energy planning

One concern about planning is that it will lead government to engage in favoritism and cronyism. So who would have guessed that when the leaders of the federal government set out to plan for their own survival—if no one else’s—in the event of nuclear attack, they failed?

That’s the story journalist and author Garrett Graff tells in his new book Raven Rock: The Story of the U.S. Government’s Secret Plan to Save Itself—While the Rest of Us DieAs the Wall Street Journal summarizes:

COG—continuity of government—is the acronymic idée fixe that has underpinned these doomsday preparations. A bunker was installed in the White House after Pearl Harbor, but the nuclear age (particularly after the Soviet Union successfully tested an atomic bomb in September 1949) introduced a nationwide system of protected hideaways, communications systems, evacuation procedures and much else of a sophistication and ingenuity—and expense—never before conceived….

Strategies for evacuating government VIPs began in earnest in the early 1950s with the construction of Raven Rock, an “alternate Pentagon” in Pennsylvania near what would become known as Camp David, and Mount Weather, a nuclear-war sanctuary in Virginia for civilian officials….

In 1959, construction began on a secret refuge for Congress underneath the Greenbrier, a resort in West Virginia. In the event of an attack, members of Congress would have been delivered by special train and housed in dormitories with nameplated bunk beds.

The most important COG-related activities during the Kennedy administration came during the Cuban Missile Crisis in October 1962, the closest this country has come to a nuclear war. Not only was the military mobilization chaotic—“one pilot bought fuel for his bomber with his personal credit card”—but VIP evacuation measures were, for the most part, a debacle: “In many cases, the plans for what would happen after [a nuclear attack on the U.S.] were so secret and so closely held that they were almost useless.” …

The Air Force also acquired, for the president’s use, four Boeing 747 “Doomsday planes” with state-of-the-art communications technology, which were nicknamed “Air Force One When It Counts.”…

Probably the most fraught 24 hours in the history of COG worrying occurred on Sept. 11, 2001, when al Qaeda terrorists attacked the World Trade Center and the Pentagon. COG projects and training had been ceaselessly initiated and honed for a half-century; but, as Mr. Graff writes with impressive understatement, “the U.S. government [wasn’t] prepared very well at all.”…

While Vice President Dick Cheney had been swiftly hustled to the White House bunker, “those officials outside the bunker, even high-ranking ones, had little sense of where to go, whom to call, or how to connect back to the government,” Mr. Graff writes. But there were enough people in the bunker to deplete the oxygen supply and raise the carbon-dioxide level, and so “nonessential staff” were ordered to leave. When House Speaker Dennis Hastert tried to call Mr. Cheney on a secure phone, he couldn’t get through….

When President George W. Bush heard the news about the attacks that morning, he was in Florida. He was whisked into Air Force One, which, Mr. Graff notes, “took off at 9:54 a.m., with no specific destination in mind.” It would eventually land, and the president would address the country. But “Air Force One’s limitations”—it wasn’t one of the Doomsday planes—“came into stark relief.” For one thing the plane’s communications systems were woefully inadequate for what was required on 9/11. “On the worst day in modern U. S. history,” Mr. Graff writes near the end of his exhaustingly detailed account (I sometimes felt buried alive under its mass of data), “the president of the United States was, unbelievably, often less informed than a normal civilian sitting at home watching cable news.”

Fifty years of planning for a single event, the most important task imaginable—the survival of the republic and their own personal survival—and top government officials still didn’t get it right. A good lesson to keep in mind when we contemplate having less-motivated government officials plan our cities, our energy production, our health care system, or our entire economy.

The Justice Department’s appointment of former FBI director Robert Mueller as Special Counsel takes the ongoing investigation of Russia’s alleged interference in the 2016 presidential election and possible collusion between Trump campaign officials and the Russian government to an entirely new level.  If the investigation is to be truly objective and informative, some crucial issues need to be addressed. 

Above all, it is imperative to determine the full context of the Trump-Russia relationship.  The old parable about a group of blind men feeling limited portions of an elephant and reaching erroneous conclusions applies here.  Without context, someone feeling the elephant’s trunk may express unwarranted confidence that it is a thick rope.

One of the issues that must be examined is the extent and nature of the contacts between members of Trump’s election campaign team and Russian officials.  To determine that in a dispassionate manner will not be easy.  An anti-Russia hysteria has reached alarming proportions in the past few months, eerily resembling the McCarthy era in the 1950s.  As I note in a recent article in the American Conservative, there appears to be a concerted effort to make Russia a pariah.  Indeed, at least two House Democrats have voiced objections to any contact whatsoever between the Trump administration and Russian officials.

That attitude is both unrealistic and potentially very dangerous.  Even during the worst days of the Cold War, U.S. leaders never severed communications with Moscow.  In fact, constructive dialogues produced some worthwhile agreements with America’s totalitarian adversary, including the treaty banning atmospheric nuclear tests in 1963.  To adopt an unprecedented, hardline attitude now toward post-Soviet Russia, which is a conventional rather than a totalitarian power, would be irresponsible.

To determine the context of links between Trump campaign advisers and Russian officials, three questions need to be asked.  First, were those advisers also in communication with other foreign governments, or were the Russia contacts exceptional?  If the former, it would suggest normal preparations on the part of people who might become part of a new administration.  Such ground work would be prudent so that potential officials could hit the ground running immediately upon their appointment to relevant posts.  So, were the Trump people also in touch with Chinese, Turkish, Israeli, German, Japanese, etc. officials, as well as Russian policymakers?  And, on a related point, were the number of Russian contacts disproportionate?

Another key question is how the links to Russia and other foreign governments compared to the activities of Hillary Clinton’s advisers and those of campaign organizations in previous presidential election cycles.  Was the behavior of Trump’s people a substantial deviation from the norm, or do potential incoming officials engage in such conduct routinely?

These are crucial considerations.  If the Trump team’s contacts with Russia were unusual in number, that would create justifiable suspicions of impropriety.  If they were typical, such a context would support the administration’s contention that the massive criticism is little more than a partisan witch hunt.  Mueller and his investigators need to make that determination with indisputable clarity.

From a Boston Magazine article about the push for a tax on soft drinks in Massachusetts: 

Caroline Apovian, a professor at the Boston University School of Medicine and the director of the Nutrition and Weight Management Center at Boston Medical Center, says that sugary drinks should be regulated similarly to alcohol.

“We regulate alcohol,” she says. “We do not sell alcohol to children. We tax it and you can’t drink while you are working.”

If the day comes that sugary drinks are regulated like alcohol, I feel that I and many other parents will need to throw ourselves on the mercy of the court. Not only have we procured sweet tea, sports drinks, Dr. Pepper, and similar items for underage members of our household – think of how the law treats procuring controlled beverages for minors! – but, sinking deeper into iniquity, we have even enabled our offspring to set up as dealers and manufacturers themselves, plying their neighbors and friends with the fatal decoctions just to pocket the resulting quarters of revenue. 

And the worst of it, as they never tell you ahead of time, is not the legal consequences we might face if Prof. Apovian had her way: it’s that you wind up squeezing all the lemons yourself.

Statement for the Record of the Cato Institute[1]
Submitted to the House Committee on the Judiciary
Markup on
“H.R 2431 - Michael Davis, Jr. and Danny Oliver in Honor of State and Local Law Enforcement Act”
Thursday, May 18, 2017

The Michael Davis, Jr. and Danny Oliver in Honor of State and Local Law Enforcement Act (H.R. 2431) purports to empower states and localities to take action against serious criminals who have violated immigration law.[2] In reality, the bill is a vehicle for a massive expansion of the federal government and of federal power over states and their citizens.

The legislation imposes new mandates on states and uses federal grants to coerce them into following the bidding of the federal authorities. These requirements undermine the federalist system that the Founders intended. Even where it does grant certain state agencies greater powers, it does so while undermining the authority of the state legislatures. It authorizes state and local law enforcement personnel to enforce immigration laws without any authorization from their state legislature to do so and without any training.

The powers that it authorizes will inevitably lead to violations of the civil liberties and privacy of ordinary Americans. Any state official who suspects someone of violating immigration law can demand that they prove their status in the United States and hold them if they fail to do so – all without so much as a request from the federal agencies. It grants states access to federal surveillance databases that include U.S. citizens, compromising Americans’ privacy.

Its provisions that criminalize illegal presence and ordinary status violations would unnecessarily turn millions of peaceful people into criminals and push America further down the road of overcriminalization. This bill would impose billions of dollars in costs on taxpayers with very little benefit.[3]

H.R. 2431 undermines federalism

America’s federalist system of government diffuses power between multiple levels of government. Federalism is each level of government having discretion within their roles and each level respecting the others’ roles. States and localities are responsible for policing communities. The federal government is responsible for the removal of unauthorized individuals. It should not dictate to states how to protect their communities, and states should not be able to dictate to the federal government how to proceed in its removal efforts.

H.R. 2431 ignores both elements of federalism. On the one hand, it allows states to dictate to the federal government how to prioritize the removal of immigrants from the United States. Sec. 102 clearly recognizes this as a federal responsibility, stating that states “may not admit aliens to or remove them from the United States.” Yet Sec. 102 authorizes state law enforcement otherwise to enforce immigration laws “to the same extent as the federal government.” In other words, the only consequence of this provision would be to allow states to dictate to the federal government who it should target first. Indeed, the sponsors of the bill in the 114th Congress made it explicit that the goal of the bill was to overturn federal agency priorities for enforcement.[4]

These provisions undercut the authority of Congress, which repeatedly emphasized in each Department of Homeland Security (DHS) appropriation that the department “shall prioritize the identification and removal of aliens convicted of a crime by the severity of that crime.”[5] They could also interfere with DHS removal operations that states and localities are unaware of, even compromising investigations. DHS has access to a broader range of intelligence in all 50 states and internationally regarding the best use of its resources. Yet Sec. 108 requires DHS to “schedule for the prompt transfer of apprehended aliens from the custody of States.”

On the other hand, the bill purports to empower states and localities, but the main thrust of the bill is the opposite—it requires states to participate in federal enforcement operations against their wishes. Indeed, Sec. 114 states unequivocally that states and municipalities cannot create policies that decline to cooperate fully in the enforcement of federal immigration law (p. 25). It goes on to ban policies that restrict state and local law enforcement from reporting unauthorized immigrants to federal authorities. These mandates are unfunded. In these ways, it eliminates the discretion of state and local law enforcement regarding their policing priorities in their own local communities.

The bill also uses federal grants to bully states into doing the will of Congress. Sec. 114 conditions any federal grant “that is substantially related to law enforcement, terrorism, national security, or immigration or naturalization” on compliance with these new unfunded requirements. Sec. 115 conditions these same grants on cooperation with federal requests to detain immigrants on its behalf. If the federal government does subsidize states, it should do so without strong-arming them into its priorities.

Courts could see these mandates as “commandeering” a state into enacting a federal program, which would be unconstitutional.[6] The spending provisions also flirt with unconstitutional coercion of states by threatening to withdraw potentially large sums of law enforcement funds.[7] Congress should not push the constitutional limits of federal intrusion into state policy decisions. Yet the bill manages to undercut this vision in both directions—allowing states to impose on the federal government and the federal government to impose on the states.

Sec. 106 also creates new grant programs to state and local governments “for procurement of equipment, technology, facilities, and other products that facilitate and are directly related to” immigration enforcement. These subsidies also undermine federalism by removing local accountability for spending that occurs at that level. At the same time, the federal government has no real means to guarantee that the grants actually result in additional state enforcement as opposed to allowing the state to shift law enforcement funds to other purposes.

H.R. 2431 undermines democracy and obstructs accountability

Even when the bill explicitly expands the authorities of state law enforcement, it undermines the authority of state legislatures, thereby undercutting democratic oversight. Sec. 102 authorizes state law enforcement to “investigate, identify, apprehend, arrest, detain, or transfer to Federal custody aliens for the purposes of enforcing immigration laws of the United States to the same extent as Federal law enforcement personnel.” It has no requirement that state legislatures have to authorize this enforcement to take place, meaning that any local officer may—on their own—begin arresting people that he believes to have violated immigration laws.

Reinforcing this provision, the bill immunizes any local officer who chooses to make these arrests, stating that they are acting under federal authority. This severely curtails the ability of the state to regulate this behavior. State legislatures may want to adopt policies different from certain members of their police forces that they believe will better protect their communities than targeting immigrants for removal. The bill does not even require that the head of the law enforcement agency create the enforcement policy and guidelines for the state, meaning that literally any police officer could begin to make arrests and detentions of individuals with federal qualified immunity.

These provisions are even more problematic because the bill imposes no training requirements on police prior to allowing them to conduct enforcement. Yet Sec. 109 states that nothing in it “shall be construed as making any immigration-related training a requirement for, or prerequisite to, any State or local law enforcement officer to assist in the enforcement of Federal immigration laws.” This means that the hundreds of thousands of police officers in America could make arrests without any training at all, and their state legislatures would actually be banned from preventing them from such arrests under Sec. 114 if the officer was “cooperating with Federal law enforcement entities.”

The legislation is not even consistent on this point. Sec. 112 makes various changes to the 287(g) program—which currently allows state and local police to make immigration arrests with a formal agreement between federal and state authorities—but the changes do not remove the program’s requirement that police must undergo training. Thus, in one section of the bill, the assumption is that local law enforcement need no training, while in another section, it assumes that they do.

H.R. 2431 establishes a situation in which any law enforcement officer in America can independently arrest and detain people he believes have violated any aspect of immigration law, including arcane labor regulations. Not only are state legislatures prohibited from stopping this situation from happening, they are subject to monetary penalties if they try. It is almost impossible to imagine a bill more directly intended to prevent state governments from controlling their own law enforcement personnel.

H.R. 2431 creates an unworkable enforcement system

State and local cooperation with ICE makes sense in certain contexts. Both states and the federal government have an unquestionable interest in removing criminal aliens. This cooperation already happens on a regular basis. H.R. 2431 encourages states to make arrests of any alien in violation of immigration laws without agreement or even consultation with ICE. But the determination of removability and admissibility are the results of a federal removal process. For example, immigrants in removal proceedings may present evidence of eligibility for status or relief before an Immigration Judge who can evaluate this evidence. No technology can provide states the ability to make a removability determination on their own.

Sec. 102 itself makes clear that removability and admissibility are federal determinations, yet Sec. 102(a) and Sec. 108 allow states and localities to hold people and criminally prosecute them for supposed violations of immigration law prior to turning them over to the federal government. Even if a state could determine a person’s status reliably without cooperation from the federal government, individuals who currently lack status in the United States may be eligible for status or forms of relief, including asylum, withholding of removal, or even a green card. Yet once again, Sec. 102(b) makes clear any determination to admit an alien is a federal decision, so states cannot come to these conclusions.

The final result of H.R. 2431 would be states and localities across the country making arrests and detention of individuals based on uncertain information. Sec. 102 apparently grants them completely unfettered discretion to detain a person indefinitely until ICE can respond. ICE would then be forced to respond to thousands of requests, attempting to determine ex post facto whether the person is, in fact, an unauthorized immigrant and a priority for removal. Rather than ICE setting priorities, and working with localities to carry them out, H.R. 2431 allows states to set priorities and forces ICE to respond. The bill would certainly result in many arrests that ICE would decline to prosecute, purposelessly taking up its finite resources.

It is not clear that the ICE union, which has strongly supported earlier versions of this legislation, even favors this idea. In June 2013, ICE union head Chris Crane testified in favor of a prior version of this bill, listing a dozen provisions that he felt would improve security but never mentioned state and local arrests without ICE support.[8]

H.R. 2431 threatens the privacy and civil liberties of Americans

Allowing every single law enforcement officers in the country discretion to enforce immigration laws without any training or federal oversight would inevitably result in violations of the civil liberties of Americans. In 2010, the Department of Homeland Security’s Inspector General (DHS IG) concluded that under ICE’s 287(g) agreements—which currently permit state and local law enforcement to conduct immigration enforcement in cooperation with and an agreement with the federal government—many law enforcement agencies were not complying with the terms of those agreements and “civil liberties considerations are not consistently weighed in the 287(g) application review and selection process.”[9]

It listed several instances of 287(g) abuses, including the detention of a U.S. citizen by a 287(g) local officer.[10] Several 287(g) agreement holders have had their agreements revoked after they engage in a pattern of wrongful stops of U.S. citizens.[11] In December 2011, the Department of Justice (DOJ) concluded that under 287(g), Maricopa County in Arizona engaged “in a pattern or practice of unconstitutional policing.”[12]  A federal district court also found that Maricopa County violated its citizens’ constitutional rights during immigration enforcement.[13] In September 2012, DOJ found that Alamance County in North Carolina similarly engaged in “a pattern or practice of violations of the United States Constitution and federal law” under the authority of 287(g).[14] In 2012, DHS responded to the 287(g) problems by dramatically limiting the authority of 287(g) officers, banning them from exercising their authority outside of jails.[15]

As mentioned earlier, H.R. 2431 allows states and localities to arrest individuals without a request from DHS. This is particularly troubling given the number of people who have been subject to wrongful detention by state and local police even with a request from DHS. Allentown and Lehigh County, Pennsylvania, for example, settled with a U.S. citizen who was wrongfully detained as an unauthorized immigrant.[16] Clackamas County, Oregon, settled a case after it detained a woman for 14 days based on an ICE request.[17] Salt Lake County, Utah settled a case after they detained a person for a month and a half for ICE.[18] One U.S. citizen in Rhode Island was subject to wrongful detention by state police twice due to ICE mistakes.[19]

During the course of the Rhode Island lawsuit, the Rhode Island Department of Corrections found that from 2003 to 2014, ICE issued detainers for 462 people who state police found were U.S. citizens.[20] ICE only issued 5,215 total detainers to agencies in the state, meaning that almost 10 percent of the detainers in Rhode Island were for U.S. citizens.[21] It is hard to believe that Rhode Island, with a low proportion of immigrants and Hispanics generally, has a higher share of wrongful detentions than other states. If this rate held nationally, 167,302 U.S. citizens have been subject to an ICE detainer since 2003.[22] H.R. 2431 extends the detainer power to untrained state and local law enforcement to reach conclusions of probable cause of immigration violations. This would increase the risk of wrongful detention of Americans considerably.

Under 287(g) agreements, local or state officers must undergo some training prior to acting as an immigration agent, yet the DHS IG found that “287(g) training does not fully prepare officers for immigration enforcement duties.”[23] H.R. 2431 requires no training at all, so any problems will surely grow.

Sec. 104 grants states access to all “Federal programs or technology directed broadly at identifying inadmissible or deportable aliens.” The most common program is ICE’s Investigative Case Management (ICM) system, which creates profiles of any individual by accessing a variety of law enforcement databases. It “can provide ICE agents access to information on a subject’s schooling, family relationships, employment information, phone records, immigration history, foreign exchange program status, personal connections, biometric traits, criminal records, and home and work addresses.”[24] This database includes U.S. citizens, as it must in order to eliminate them from further investigation. All of this information gathered, pursuant to many different authorities, could be used by any untrained law enforcement agency in the country for virtually any reason under H.R. 2431, compromising the privacy of every single American.

H.R. 2431 unnecessarily criminalizes nonviolent people

Sec. 314 criminalizes any violation of immigration law no matter how minor, including overstaying a visa by a single day or accepting $10 to mow someone’s lawn without employment authorization. Overnight, it would turn roughly 4 million unauthorized immigrants who have overstayed their visas into criminals.[25] On an ongoing basis, it would criminalize the 416,000 tourists—mainly from Europe and Canada—who overstay their visa from any period each year.[26] The sponsors in prior years have claimed that the bill would reduce the number of “criminal” aliens, but in reality, it would massively increase their numbers without any clear purpose.[27]

The sponsors fail to tout the benefits of this proposal, and the Committee report on the prior version of the bill from 2013 justifies this provision solely as a reaction to a single district court decision.[28] The U.S. District Court for the District of Arizona enjoined the immigration enforcement of efforts of Maricopa County, which had its 287(g) agreement terminated (as noted earlier). It stated that the county’s ‘‘focus on removable alien as opposed to aliens who have committed criminal offenses violates the strictures against unreasonable seizures set forth in the Fourth Amendment.’’[29] The Committee report concludes the only way to allow states to enforce immigration laws would be to criminalize all violations of immigration law.

Yet this reading of the decision is incorrect. The Court stated:

The deputy cannot prolong the stop to investigate a passenger unless the deputy through his or her observations obtains particularized reasonable suspicion that the passenger is committing a violation that the deputy is authorized to enforce. In such cases, the deputy is only allowed to prolong the stop for the brief time sufficient to investigate the existence of the crime. When the [county] deputies were 287(g) authorized, that authority presumably extended to include administrative and hence non-criminal violations of federal immigration law. Such authority, however, no longer exists.[30]

In other words, the district court held that when the county had authorization from the federal government, they had the authority to detain individuals to investigate violations of immigration law. Only after DHS revoked this authority did the county lose the ability to detain and investigate civil immigration violations.

Thus, even assuming that authorizing states and localities to conduct immigration raids is appropriate, this district court decision is not a legitimate justification for criminalizing all aspects of immigration law. Sec. 102 clearly provides authorization for localities to conduct enforcement of civil violations, and that would suffice to resolve the court’s concern.

Immigration offenses are already the top reason for a criminal arrest under federal law, composing half of all arrests.[31] This bill could dramatically increase the number of these offenders. Such a focus on nonviolent offenses demonstrates misplaced priorities. Law enforcement should target individuals who are threats to their community, and the federal government should save prison space for similarly dangerous people. In other contexts, the Committee has endeavored to prevent further overcriminalization of nonviolent people, and it should apply those lessons here.[32]


[1] The Cato Institute is a libertarian 501(c)(3) nonprofit think tank founded in 1977 and located in Washington D.C.

[2] “Michael Davis, Jr. and Danny Oliver in Honor of State and Local Law Enforcement Act,” https://judiciary.house.gov/wp-content/uploads/2017/05/Michael-Davis-Jr….

[3] The Congressional Budget Office estimated that an earlier version of the legislation would cost $22.9 billion over 5 years. Congressional Budget Office, “H.R. 2278 Strengthen and Fortify Enforcement Act,” December 5, 2013, https://www.cbo.gov/sites/default/files/113th-congress-2013-2014/costest….

[4] House Judiciary Committee, “The Michael Davis, Jr. in Honor of State and Local Law Enforcement Act Rep. Trey Gowdy (R-S.C.) – Summary.” https://judiciary.house.gov/wp-content/uploads/2016/03/interior-enforcem….

[5] “H.R.2029 - Consolidated Appropriations Act, 2016,” https://www.congress.gov/bill/114th-congress/house-bill/2029/text.

[6] The Supreme Court has held that Congress “may neither issue directives requiring the States to address particular problems, nor command the States’ officers” (Printz v. United States, 521 U.S. 898 (1997)). Moreover, it has held that “Congress may not commandeer the States’ legislative processes,” and the “Constitution does not confer upon Congress the ability simply to compel the States” (New York v. United States, 505 U.S. 144 (1992)).

[7] In NFIB v. Sebelius, 567 U.S. 1 (2012), the Court held that the Affordable Care Act coerced states by denying those that didn’t establish health care exchanges all of their federal Medicaid funding. “Permitting the Federal Government to force the States to implement a federal program would threaten the political accountability key to our federal system,” it wrote. “Spending Clause programs do not pose this danger only when a State has a legitimate choice whether to accept the federal conditions in exchange for federal funds.”

[8] Comments of Chris Crane, “Hearing on Strengthen and Fortify Enforcement (SAFE) Act,” the Committee on the Judiciary House of Representatives, June 13, 2013, https://www.gpo.gov/fdsys/pkg/CHRG-113hhrg81463/pdf/CHRG-113hhrg81463.pdf.

[9] Department of Homeland Security Office of Inspector General, “The Performance of 287(g) Agreements,” March 2010. https://www.oig.dhs.gov/assets/Mgmt/OIG_10-63_Mar10.pdf.

[10] Ibid.

[11] Jeremy Duda, “Homeland Security revokes 287(g) agreements in Arizona,” Arizona Capitol Times, June 25, 2012. http://azcapitoltimes.com/news/2012/06/25/homeland-security-revokes-287g….

[12] Thomas Perez, “Re: United States’ Investigation of the Alamance County Sheriff’s Office,” U.S. Department of Justice, Civil Rights Division, December 15, 2011, https://www.justice.gov/sites/default/files/crt/legacy/2011/12/15/mcso_f….

[13] Manuel de Jesus Ortega Melendres et al. v. Joseph M. Arpaio, U.S. District Court for the District of Arizona (May 24, 2013) (No. PHX-CV-07-02513), https://www.aclu.org/sites/default/files/field_document/arpaio_decision.pdf.

[14] Thomas Perez, “Re: United States’ Investigation of the Alamance County Sheriff’s Office,” U.S. Department of Justice, Civil Rights Division, September 18, 2012, https://www.justice.gov/iso/opa/resources/171201291812462488198.pdf.

[15] Ted Hesson, “As One Immigration Enforcement Program Fades Away, Another Rises,” ABC News, December 27, 2012, http://abcnews.go.com/ABC_Univision/News/immigration-enforcement-program…

[16] American Civil Liberties Union of Pennsylvania, “Galarza v. Szalczyk, et al.,” available at https://www.aclupa.org/our-work/legal/legaldocket/galarzavszalczyketal/

[17] Steve Mayes, “Woman at center of landmark immigration case settles suit that changed jail holds in state, nation,” The Oregonian, May 18, 2015, available at http://www.oregonlive.com/clackamascounty/index.ssf/2015/05/woman_at_cen…. ↩

[18] Ashton Edwards, “Man settles immigration lawsuit against Salt Lake County, awarded $75,000,” Fox 13 News, August 25, 2014, available at http://fox13now.com/2014/08/25/man-settles-immigration-lawsuit-against-s….

[19] American Civil Liberties Union Rhode Island, “Court Filings Show Immigration Officials Issue Detainers Against U.S. Citizens,” November 17, 2015, http://www.riaclu.org/news/post/court-filings-show-immigration-officials….

[20] Ibid.

[21] TracImmigration, “Tracking Immigration and Customs Enforcement Detainers,” Syracuse University, http://trac.syr.edu/phptools/immigration/detain/.

[22] Ibid.

[23] Ibid, p. 27.

[24] Quoted in: Matthew Feeney, “Big Data Tool For Trump’s Big Government Immigration Plans,” Cato Institute, May 9, 2017, https://www.cato.org/blog/big-data-tools-trumps-big-government-immigrati….

[25] “Modes of Entry for the Unauthorized Migrant Population,” Pew Research Center, May 22, 2006, http://www.pewhispanic.org/2006/05/22/modes-of-entry-for-the-unauthorize….

[26] Jeffrey Passel and D’Vera Cohn, “Homeland Security produces first estimate of foreign visitors to U.S. who overstay deadline to leave,” Pew Research Center, February 3, 2016. http://www.pewresearch.org/fact-tank/2016/02/03/homeland-security-produc…

[27] House Judiciary Committee, “The Michael Davis, Jr. in Honor of State and Local Law Enforcement Act Rep. Trey Gowdy (R-S.C.) – Summary.” https://judiciary.house.gov/wp-content/uploads/2016/03/interior-enforcem…

[28] Bob Goodlatte, “Strengthen and Fortify Enforcement Act - House Report 113-678 Part 1,” House of Representatives, December 16, 2014, https://www.congress.gov/113/crpt/hrpt678/CRPT-113hrpt678-pt1.pdf.

[29] Melendres v. Arpaio, (D. Ariz.) (2013 WL 2297173).

[30] Ibid, p. 132.

[31] John Gramlich and Kristen Bialik, “Immigration offenses make up a growing share of federal arrests,” Pew Research Center, April 10, 2017. http://www.pewresearch.org/fact-tank/2017/04/10/immigration-offenses-mak…

[32] House Judiciary Committee, “Press Release - House Judiciary Committee Reauthorizes Bipartisan Over-Criminalization Task Force,” February 5, 2014, https://judiciary.house.gov/press-release/house-judiciary-committee-reau….

Donald Trump will make his first foreign visit this week, eschewing more typical early presidential destinations like Canada in favor of a photo-op heavy swing through Saudi Arabia, Israel, and the Vatican, before attending next week’s NATO summit in Brussels. Of these, perhaps the most interesting will be his time in Riyadh, where he will conduct bilateral meetings and attend two summit gatherings: one a Gulf Cooperation Council (GCC) meeting, and the other a U.S.-Arab Islamic summit.

Despite Trump’s negative comments about Saudi Arabia during the campaign, he has been more supportive since his inauguration, and likely looks forward to a warm reception in Riyadh. For their part, the Saudis have invested heavily in lobbying the new administration, with whom they believe they can work on issues from counterterrorism to Iran. For a president under fire at home, and whom even foreign allies treat with extreme caution, the open embrace of Saudi leaders is undoubtedly welcome.

During the visit, Trump is expected to make two announcements. The first is a massive arms sale worth as much as $300 billion over a decade. The package includes a number of advanced systems, most notably a THAAD missile defense system, and is intended to improve Saudi Arabia’s military capabilities. The second rumored announcement – the creation of an “Arab NATO” – is more unexpected. Though such an idea has been suggested before, regional realities have typically prevented it from advancing past the idea stage.

Indeed, though the U.S. has long sought to build up military cooperation and interoperability between regional states, policy differences and long-running disputes have torpedoed similar initiatives in the past. From military cooperation within the GCC to 2015’s Saudi-led announcement of an “Islamic coalition to fight terrorism“ these efforts have yielded few concrete results. Even at the height of the Cold War, the Baghdad Pact (CENTO) was rendered ineffectual by regional disputes.

In reality, the likelihood of failure may not worry either Trump or the Saudi leadership, both of whom have shown a propensity for policy characterized by big, flashy announcements that are rarely followed through with concrete steps.

Of greater concern are other areas of likely discussion at the summit, particularly the prospect of greater U.S.-Saudi cooperation against Iran. Though Trump has thus far proven unwilling to “rip up” the Iranian nuclear deal, he has initiated new sanctions on Iran, and repeatedly promised a more assertive U.S. policy to deal with Iran’s “destabilizing” regional behaviors.  Unfortunately, this approach carries risks, including the prospect of undermining the nuclear deal or of creating a wider regional conflict.

And while the President and Saudi leaders may agree on many policy issues, the summit does present several areas of potential conflict. For one thing, the hosts have extended an invitation to Sudan’s President Omar al-Bashir, currently under indictment by the ICC for war crimes and genocide, a choice which has upset many in Washington, if not necessarily the President himself. Trump is likely to accidentally provide support to one side in the ongoing influence struggle between Mohammed bin Nayef, the Saudi Crown Prince, and Mohammed bin Salman, the King’s son and second-in-line to the throne.

Trump’s scheduled speech on Islam also promises a variety of opportunities for misunderstanding and misstatements; in addition to the President’s habit of deviating from prepared remarks, the speech itself is reportedly being written by advisor Stephen Miller. Miller is not only the author of the Trump administration’s controversial travel ban on various Muslim countries, but also waged a campaign during his college years to create awareness of the dangers of “Islamofascism.”

In short, though Trump’s trip to Saudi Arabia offers little in the way of policy disagreements – and presents a valuable opportunity for the new administration to distance itself from turmoil at home – it also offers plenty of potential pitfalls for the new President and his staff. And that’s before he even makes it to stop number two. 

We get it: Private schools—and hence school choice programs—are bad because all private schools do not have to accept all children with disabilities. We’ve heard it before, and we heard it again in an NPR story yesterday taking the Indiana voucher program to task for private schools turning away kids with disabilities.

How could they be so cruel, and choice supporters so callous?

Let’s start with a simple reality: Educating children with disabilities is generally more expensive than educating children without them, and private schools often struggle just to pay for educating the latter group. That should be no surprise: In the 2011–12 academic year—the most recent with public and private data—public schools spent $13,398 per pupil. Private schools, which rely on families paying tuition after they have paid taxes for the “free” public schools, charged on average $11,170, and many private students receive tuition discounts and aid. For Roman Catholic and other religious institutions—the most numerous private schools—tuition was even lower: $7,170 and $9,040, respectively. Private schools do sometimes receive subsidies from parishes, dioceses, and donors, but it is herculean task to overcome public schools’ big funding and pricing advantages.

But in Indiana there is a voucher program, so surely private schools there have no excuse.

Set aside that for most of the life of Hoosier private schools there was no voucher program—it only started in 2011—so they were hard-pressed to compete for non-disabled students, much less establish robust special education programs. Is the funding equitable now?

Nope. As the NPR story notes, “the poorest students qualify for a voucher that’s worth roughly 90 percent of what the state would have spent in a public school, but now some middle class families actually qualify for a half voucher.” So no one using a voucher gets their full state allotment. And the state is only one funder of public schools; altogether, Indiana public schools spent over $10,000 per student. What’s the biggest average voucher? Only about $5,700.

To be fair, in the 2013–14 school year voucher-receiving schools became eligible to receive state special education funds for students with disabilities, but see the previous point: that’s not much time to build up strong accomodations.

Let’s move the spotlight: Do all public schools actually have to take all students with disabilities? No. Not only do public schools sometimes fail to provide relatively easy accommodations, some disabilities are too challenging for even well-funded public schools to handle. As of 2013—the most recent date for which I could find data—around 4 percent of students with disabilities, or 259,000 children, were in private schools or other settings that were not regular schools, or private schools chosen by parents.

Private schools tend to have appreciably less money than the “free” public schools against which they have to compete; vouchers in Indiana—NPR’s target—don’t provide funding parity; and public schools redirect some kids with disabilities. Suddenly private schools don’t seem so exclusionary or heartless. Instead, the “discrimination” line, even if well intended, seems kind of unfair to them.

One more thing: School choice is increasingly being targeted to children with disabilities, with programs now in Arizona, Arkansas, Florida, Georgia, Louisiana, Mississippi, North Carolina, Ohio, Oklahoma, South Carolina, Utah, and Wisconsin. Why? Because parents with special needs children, especially, want empowerment—the ability to seek out what’s best for their children and control the money to educate them—rather than dependence on byzantine laws, bureaucracy, and just plain hope that maybe the system will work for their children. It’s why Florida’s McKay Scholarship Program—the granddaddy of special needs choice programs—enrolls over 30,000 students and has enjoyed very high parental support.

As long as Donald Trump is in the White House talking about a federal school choice program, the fire directed at educational freedom will likely be coming hot and heavy. But if you are going to critique education that empowers families, please at least provide all the relevant information.

President Trump is being accused of “obstruction of justice” because of a conversation that he may have had with former FBI Director James Comey.  According to the news stories, Trump may have asked Comey to lay off his former National Security advisor, Michael Flynn.  In this post I want to briefly examine the legal doctrine of obstruction of justice.

To begin, a basic principle of American criminal law is that the line between what’s lawful and what’s unlawful needs to be clear so we will know, in advance, what conduct might land us in a prison cell.  That’s the gist behind the constitutional prohibition of ex post facto laws.  Laws with vague terms raise the same danger.  When laws are vague, police and prosecutors can abuse their power and trap people.  And that’s the danger with a catch-all doctrine such as “obstruction of justice.”

“Obstruction” has sometimes been defined by the authorities as almost any action that “impedes” an investigation.  Invoking your constitutional right to silence, your right to speak with an attorney, or the attorney-client privilege are sometimes deemed “obstruction.”  Don’t the courts restrain those abuses?  Yes, sometimes they do.  I’m presently editing a book of Judge Alex Kozinski’s legal opinions.  One case, United States v. Caldwell, touches on this subject.  Here is Judge Kozinski:

Under the government’s theory, a husband who asks his wife to buy him a radar detector would be a felon — punishable by up to five years in prison and a fine of $10,000 — because their actions would obstruct the government function of catching speeders. So would a person who witnesses a crime and suggests to another witness (with no hint of threat) that they not tell the police anything unless specifically asked about it.So would the executives of a business that competes with a government-run enterprise and lowers its prices to siphon off the government’s customers. So would co-owners of land who refuse to sell it for use as a military base, forcing the government to go to the extra trouble of condemning it. So would have Elliot Richardson and William Ruckelshaus, had they agreed with each other to quit if asked by President Nixon to fire Archibald Cox. The federal government does lots of things, more and more every year, and many things private parties do can get in the government’s way. It can’t be that each such action is automatically a felony.

I should note that when James Comey served as a prosecutor in New York, he pursued Martha Stewart and went so far as to say that her assertion of innocence was itself a violation of the law!  When Comey worked as assistant attorney general, he also took a dangerously expansive view of what he considered “uncooperative” conduct by business firms.  He expected lawyers for business firms to act as deputies for the federal government, which raised constitutional problems—especially for employees who were unaware of the legal minefield all around them during a purported “internal” investigation.

Let’s also consider how the doctrine might work within the government itself.  Say a rookie cop busts a homeless man named Al, for possession of heroin.  Al is street wise so he offers to become a snitch if his charge is dropped.  Al says he was using heroin with the governor just the day before and that the governor told him that he kept a stash of other drugs in his desk at the mansion.  The rookie thinks this is a huge deal and proposes to use Al in a sting operation against the governor.  The police captain rejects the proposal and tells the rookie to forget the whole thing because it’s a made up story.  Has the captain obstructed the investigation or exercised appropriate supervision?

Another example.  Let’s say 50 FBI agents are working on the Russia investigation (improper, possibly illegal, actions involving Mr. Trump or others working on his campaign).  One agent is convinced that Mr. Trump is a traitor, taking bribes from Putin, and other illegal acts.  He proposes grand jury subpoenas for Mr. and Mrs. Trump so that they can be questioned under oath right away.  Only his FBI supervisor rejects the idea.  Has the FBI supervisor obstructed justice or exercised sound discretion?

One important difference, of course, is that neither the police captain nor the FBI supervisor, were targets (or around the targets) of the underlying investigation. Repeat: That is an important difference.  The main point of this post is simply to caution against wild and vague claims of “obstruction of justice.”  Legal rights should never be considered “obstruction.”  When judges, or prosecutors, or law enforcement supervisors restrain overzealous subordinates, that should not be considered “obstruction.”  Mr. Trump is not above the law, but investigators must also respect the law as they go about their work.

The attention of most in Congress, the media, and the privacy rights community has been focused this spring on the looming Foreign Intelligence Surveillance Amendments (FAA) Act Section 702 reauthorization fight, generally for good reasons. However, other expansions of domestic surveillance powers and data sharing are getting far less attention—and one such measure before the House today may dramatically expand the kind of information state and local law enforcement agencies can get from the federal government.

Introduced on April 26 by Rep. John Katko (R-NY), the “Improving Fusion Centers’ Access to Information Act” (HR 2169) is designed to plug any “information gaps” in state “fusion centers” by modifying the Homeland Security Act of 2002 to require DHS to

identify Federal databases and datasets, including databases and datasets used, operated, or managed by Department components, the Federal Bureau of Investigation, and the Department of the Treasury, that are appropriate, in accordance with Federal laws and policies, to address any gaps identified pursuant to paragraph (2), for inclusion in the information sharing environment and coordinate with the appropriate Federal agency to deploy or access such databases and datasets;

If the sound of this makes you feel uncomfortable, it should for several reasons—not the least of which is the last-minute decision by the Obama administration to make more raw (and thus potentially unverified or inaccurate) intelligence from the National Security Agency available to the FBI, and thus other law enforcement agencies the FBI decides need the data.

What makes Katko’s bill—which is coming to the House floor under expedited consideration via a legislative procedure known as “suspension of the rules“—even worse is that it ignores the 2012 findings of a Senate Homeland Security Committee report that found that state fusion centers were at best worthless, and at worse Bill of Rights violation factories.

In the press release on the committee report, then chairman Senator Tom Coburn (R-OK) stated, “It’s troubling that the very ‘fusion’ centers that were designed to share information in a post-9/11 world have become part of the problem. Instead of strengthening our counterterrorism efforts, they have too often wasted money and stepped on Americans’ civil liberties.”

Coburn went on to note:

Unfortunately, DHS has resisted oversight of these centers. The Department opted not to inform Congress or the public of serious problems plaguing its fusion center and broader intelligence efforts.  When this Subcommittee requested documents that would help it identify these issues, the Department initially resisted turning them over, arguing that they were protected by privilege, too sensitive to share, were protected by confidentiality agreements, or did not exist at all.  The American people deserve better.  I hope this report will help generate the reforms that will help keep our country safe.

Among the report’s findings:

  • The Department of Homeland Security estimated that it had spent somewhere between $289 million and $1.4 billion in public funds to support state and local fusion centers since 2003, broad estimates that differ by over $1 billion.
  • The investigation found that DHS intelligence officers assigned to state and local fusion centers produced intelligence of “uneven quality – oftentimes shoddy, rarely timely, sometimes endangering citizens’ civil liberties and Privacy Act protections, occasionally taken from already-published public sources, and more often than not unrelated to terrorism.”  
  • DHS officials did not provide evidence to the Subcommittee showing unique contributions that state and local fusion centers made to assist federal counter terrorism intelligence efforts that resulted in the disruption or prevention of a terrorism plot.
  • The investigation also found that DHS did not effectively monitor how federal funds provided to state and local fusion centers were used to strengthen federal counterterrorism efforts.  A review of the expenditures of five fusion centers found that federal funds were used to purchase dozens of flat screen TVs, two sport utility vehicles, cell phone tracking devices and other surveillance equipment unrelated to the analytical mission of an intelligence center.  Their mission is not to do active or covert collection of intelligence.  In addition, the fusion centers making these questionable expenditures lacked basic, “must-have” intelligence capabilities, according to DHS assessments.

I don’t for a minute doubt John Katko’s patriotism or desire to protect Americans from legitimate threats. What I do question is exactly how much research he and his staff did on how useless these fusion centers are and how giving them access to even more information on innocent Americans will only increase the risks that people with no connections to terrorism will become victims of state and local law enforcement “counterterrorism” witch hunts. That the bill is considered “non-controversial” by the House leadership is a testament to how little regard they have for the Fourth Amendment rights of the citizens they were elected to represent.

An Argentine attorney, Maximiliano Gluzman, completed a master’s in law (LL.M.) at Vanderbilt Law School—including a heavy dose of common-law subjects—but was denied an opportunity to sit for the Tennessee bar, even though nobody disputes that he’s an “obviously a very, very qualified” lawyer (as one of the bar examiners conceded) and “one of the very best students” ever to graduate from his school (as its dean put it). In January 2016, however, new bar rules went into effect that essentially prevent foreign students from sitting for the bar by requiring a J.D. from an American law school.

The case is now before the state supreme court. The Beacon Center, Tennessee’s most prominent free-market advocacy group, has filed a brief supporting Mr. Gluzman, which Cato and the Goldwater Institute have joined. Our brief focuses on the right to earn an honest living going back to Magna Carta.

Indeed, Tennessee was founded out of nothing so much as the pursuit of economic opportunity. The state constitution reflects the special importance of the right to earn a living by embedding it in the “Law of the Land” Clause. This provision traces directly to the Magna Carta, a document itself primarily concerned with property rights and the right to earn a living.

While federal courts tend to provide thin protections to this right under the U.S. Constitution, the Tennessee supreme court has long protected it as a “fundamental” right. Importantly, the Tennessee legislature recently reaffirmed that the right was fundamental in the appropriately named “Right to Earn a Living Act.”

Yet the board of bar examiners concluded that Mr. Gluzman’s education in Argentina and at Vanderbilt was not “substantially equivalent” to a J.D.—discounting the right as somehow inapplicable and missing the significance of the Act as a restatement of longstanding Tennessee constitutional doctrine. Under the doctrine of constitutional avoidance, and out of respect for the importance of the underlying right itself, the “substantial equivalency” rule should be read with lenity.

Although Mr. Gluzman’s sterling educational qualifications are beyond reproach, if it is still unclear whether his education satisfies the state bar, the rule should be read to favor the liberty interest and permit his inclusion. Nor is his exclusion demonstrably necessary to protect the public; the tailored way of assessing Mr. Gluzman’s competency would be to simply allow him to take the exam and settle the matter once and for all. That process would at once follow clearly stated legislative priorities and the constitutional principles that gave rise to the Right to Earn a Living Act.

The Tennessee Supreme Court hears Gluzman v. Tennessee Board of Bar Examiners later this spring.

On Monday, the Washington Post dropped a bombshell, reporting that Donald Trump had shared highly classified “codeword” intelligence—provided by an ally on the condition that it not be more widely disseminated—with Russian officials during their meeting last week.  While administration officials initially issued fierce denials, national security advisor H.R. McMaster, who had himself blasted the story as “false” in a carefully-worded statement, effectively confirmed the key elements of the report at a press briefing Tuesday morning. While McMaster repeatedly insisted that Trump’s decision to share information had been “wholly appropriate,” his remarks (perhaps inadvertently) raised several additional grounds for concern.

First, let’s dispense with the obvious: Classification authority in the United States flows from the president, and so a president is legally entitled to declassify or disclose information as he sees fit, for any reason or no reason at all.  This is a case where that infamous Nixonism—”When the president does it, that means it is not illegal”—actually applies.  Nobody, as far as I can tell, is seriously disputing that.  It’s also true that presidents often choose, for strategic or diplomatic reasons, to share particular pieces of intelligence with foreign governments.  Yet this does not appear to have been a “routine” instance of such sharing, as McMaster sought to characterize it—not by a longshot.

Rather, as NYU law professor Ryan Goodman observes at the Just Security blog, any decision to share such sensitive information would normally be subject to a rigorous interagency process, allowing the originators of the intelligence to assess the equities implicated by disclosure and apprise the White House of the potential consequences.  In this case, McMaster confirmed, the decision appears to have been made on the fly during the course of the discussion—and so necessarily uninformed by any serious analysis of the costs and benefits.  Indeed, McMaster even attempted to allay any concerns that Trump might have compromised “sources and methods” by noting that Trump had not been briefed on the source of the intelligence.  Yet as intelligence officials so frequently remind us in other contexts, sources or methods can sometimes be reverse-engineered from the substance of intelligence. If Trump was not aware of the source, his decision to disclose cannot have factored in either that direct risk of exposure, or the related risk of damaging relations with an ally by sharing sensitive information without seeking permission. Even if he had not been briefed on the details, of course, information shared under such conditions should have been clearly marked  “NOFORN” to indicate that it should not be disseminated to foreign nationals, including allies.  

Subsequent reporting has identified the source of the intelligence as Israel.  This would normally be the most likely candidate, though it sounds slightly odd given the original Post story’s claim that the information had come from a country whose intelligence sharing arrangement with the U.S. was itself a tightly held secret.  Possibly this is attributable to an overstatement by the Post, though as a professional paranoid I feel obliged to flag the possibility that it represents an effort at damage control intended to provide cover to another country—Jordan, say—where close cooperation with the United States would be more domestically controversial.  (Both could be true, of course, if the information was synthesized from multiple sources—with one source emphasized to draw attention from the other.) Either way, circumventing the usual equities process under the circumstances seems doubly irresponsible, especially given that allies had already expressed skittishness about sharing sensitive information with this administration.  

It may well turn out that the substance of what Trump shared was not detailed enough to risk human intelligence sources, at least in isolation, or that it only confirmed information the Russians already had on their own.  But in the absence of meaningful internal review prior to disclosure, that would be a matter of luck.  What seemed “appropriate” to McMaster might seem like an unacceptable risk to analysts with a clearer sense of what could be derived from that information in combination with other data available to Russian intelligence—either about the extent of our information sharing with allies or about those allies’ own intelligence sources.  The point of interagency review is precisely that these things aren’t necessarily obvious on the basis of cursory reflection, even by someone as well informed as McMaster.  Thus, even if the information shared should ultimately prove innocuous—though at least some sources are supposedly claiming the reality is actually “worse than has been reported”—the fact that it would be disclosed, essentially, on a whim and without normal process, in violation of an agreement to the contrary, will inevitably (and justifiably) make allies more cautious about future cooperation.  

At the same time, this latest in a string of damaging leaks reflecting negatively on Trump, even if it originated from within the White House, seems certain to further strain the already fraught relationship between Trump and his own intelligence community.  That’s harmful in the short term, because of course one wants the president to be able to trust the agencies tasked with providing him with information, and the agencies to be able to keep the president fully informed without worrying that sensitive data will be whimsically disseminated.  It’s dangerous in the longer run because, as I worried in a previous post, it increases the risk that Trump, feeling besieged, will seek to clean house at the intelligence agencies, replacing the career professionals of the “deep state” with loyalists whose chief qualification is a willingness to serve Trump’s interests, and carry out his dictates, without question.  


“Why didn’t you run away?” It was this dreaded question, asked of victims of violent crime who chose to defend themselves and kill their attackers rather than turn tail and run to uncertain safety, that “stand your ground” laws were intended to address. We shouldn’t demand that ordinary people be Jason Bourne, constantly aware of the availability and potential risk of any exits to the rooms they’re in, even while under pressure, in order to claim self-defense. That’s why North Carolina passed its own “stand your ground” law in 2011: to prevent someone like Gyrell Lee, who defended himself and his cousin in good-faith reliance on his right to repel force with force, from being treated like a common criminal.

Lee had been celebrating New Year’s Eve at his cousin Jamiel Walker’s home. Several times throughout the night, known troublemaker Quinton Epps showed up with some friends and argued with Walker, becoming increasingly intoxicated and aggressive. At some point Lee, who had completed a concealed-carry class and was familiar with the legal rules surrounding gun use, retrieved his pistol from his car “just in case.”

Epps returned a final time, hurling verbal abuse at Walker in the street while Lee and others tried to de-escalate the situation. Suddenly, Walker punched Epps and Epps responded by grabbing the hood of Walker’s sweatshirt and shooting him in the stomach five times. Lee raised his own gun after the second shot, but didn’t fire out of fear of hitting his cousin. Once Walker was able to pull himself away—he would later be found dead from his wounds in a nearby yard—and Epps lifted his gun towards Lee, Lee fired eight times, killing Epps.

The judge at Lee’s murder trial instructed the jury on Lee’s general right of self-defense, but failed to inform them that a defendant accused of homicide has “no duty to retreat in a place where the defendant has a lawful right to be,” and is entitled to stand his ground. The judge also entirely failed to instruct the jury on Lee’s equal right to use deadly force in the defense of Walker. The jury, originally deadlocked, convicted Lee of second-degree murder.

The state court of appeals held—despite the fact that the prosecution relied heavily on the implication that Lee’s failure to retreat should be taken as evidence of his guilty mind—that those omissions did not rise to the level of “plain error” needed to overturn Lee’s conviction. The court reasoned that, because North Carolina’s no-duty-to-retreat law requires that the defendant be reasonable in the belief that deadly force is necessary to prevent death or serious bodily harm, and the jury had necessarily found Lee’s actions unreasonable when it voted to convict, the additional instruction was unnecessary. In doing so, it violated longstanding rules of statutory construction and rendered North Carolina’s law toothless.

The North Carolina Supreme Court took the case and Cato has now filed a brief in support of Lee, urging the court to overturn the lower court’s ruling. The right to bear arms for the defense of oneself and others, enshrined in both the federal and North Carolina constitutions, is a fundamental part of this nation’s republican experiment. Juries cannot be expected to rigorously uphold that right, however, if they aren’t properly informed by the courts of all relevant legal rights and duties.

Intentionally or otherwise, President Trump continues to make headlines, this time involving allegedly highly sensitive information on ISIS that he shared with senior Russian officials during an Oval Office visit. If, as the Washington Post has alleged, that the information was provided by a U.S. ally in the region and that Trump did not seek the ally’s clearance in advance to share the intelligence with the Russians, it represents potential collateral political damage with said ally. Today, National Security Advisor H.R. McMaster held a press conference clearly designed as a damage control operation, although by admitting that “the president wasn’t even aware of where this information came from” he only reinforced the image of Trump as impulsive and careless.

One thing that is not in question is Trump’s authority to share the data with the Russians. The real question is whether he should’ve done so. 

Recall that it was the Soviet KGB’s successor organization, the FSB, that gave the CIA and the FBI the tip that the Tsarnaev brothers were terrorist-in-the-making two years before the Boston Marathon Bombing. That episode was the exception to the rule and record of America’s dealings with Russian intelligence services, as one CIA veteran of Russian operations noted earlier this year. Trump has made no secret of the fact that he wants to increase counterterrorism cooperation between the United States and Russia, particularly against ISIS. Whether his off-the-cuff intelligence sharing foray with Russian Foreign Minister Lavrov and Russian Ambassador to the U.S. Kislyak was the right way to do it is highly debatable. That it has at least temporarily focused attention away from a genuine ongoing scandal–the “Russiagate” investigation and the timing of the firing of ousted FBI Director James Comey–is beyond dispute. Trump’s Oval Office antics have given the Russians unearned wins on both issues this week.

Senator Rand Paul has a column over at CNN, urging Attorney General Jeff Sessions to reconsider his recent memo to federal prosecutors that encourages them to seek serious charges and mandatory minimum sentences.  Here’s an excerpt:

The attorney general’s new guidelines, a reversal of a policy that was working, will accentuate the injustice in our criminal justice system. We should be treating our nation’s drug epidemic for what it is – a public health crisis, not an excuse to send people to prison and turn a mistake into a tragedy.

And make no mistake, the lives of many drug offenders are ruined the day they receive that long sentence the attorney general wants them to have.

Read the whole thing.  To put this latest move into some perspective, several points need to be kept in mind.  First, like his earlier crime-fighting memos, this is consistent with what Republican administrations do.  That is, they reverse the executive orders that the Democrats put in place.  Sessions is reversing the policies of Eric Holder and restoring the charging policies that Former Attorney General John Ashcroft had in place.  Second, media reports that Sessions is bringing back the drug war are exaggerated because, as Professor Doug Berman noted, the war never went away under Obama.  Third, Trump and Sessions do not “oversee” the American criminal justice system.  The criminal system is decentralized among the states.  The federal system has been growing but is around 10 percent of the overall system.  So while Sessions gets a lot of attention, most of the action quietly occurs at the state and local level.

That said, Sessions is definitely moving in the wrong direction.  He is a strong proponent of mandatory minimum sentences, which have the effect of transferring power from impartial judges to ambitious prosecutors.  And they are so rigid that they too often lead to injustice–especially in drug cases where the quantity of drugs can be the primary factor instead of a person’s culpability.  Low-level mules get severe sentences for example driving narcotics from one city to another.

Sessions also conflates drug enforcement with the violent crime that is the primary concern of most Americans.  He believes that more drug busts can have a real impact on violent crime.  He is badly mistaken about that.  When the police lock up a rapist or a mugger, that enhances public safety.  Drug busts have little impact.  The street dealers and mules are quickly replaced and the black market trade continues as before.   

Lately, Sessions has been making the observation that drug dealers have to resort to violence to resolve their disputes.  There is truth to that, but that has always been a part of the conservative/libertarian critique of the drug war policy.  During the days of alcohol prohibition, newspapers reported on the “beer wars” in the cities.  After prohibition ended, no beer wars.  We would see the violent crime rate decline if the drug war were to end. 

Senator Paul is right about the need for sentencing reform, but even modest steps in that direction are likely to be opposed by Trump and Sessions.  State and local leaders have to take the lead on criminal justice reform.

Hal Brands has published a long and thoughtful essay at War on the Rocks on the future of American Internationalism. Despite its length, or perhaps because of it, the piece is worthy of a careful read.

Echoing themes that I have discussed previously (e.g. here and here), Brands foresees two equally plausible scenarios: a return to the liberal international order (LIO) crafted and sustained by a bipartisan foreign policy elite since the end of World War II; or an enduring shift away from internationalism, a process decades-in-the-making, but hastened by Trump’s presidency.

Brands is cautiously optimistic that the former will eventually prevail, provided that U.S. leaders undertake a series of reforms reflecting new geopolitical and domestic political realities. Fearful that Trump’s isolationism and hyper-nationalism will prevail, I have argued for a third way. U.S. leaders should reiterate their commitment to economic openness and international engagement, but call on other wealthy nations to share in the burdens of maintaining it. And they should back up such rhetoric with actions, by renegotiating decades-long alliance relationships, and avoiding intervening militarily in disputes that do not engage vital U.S. security interests. 

Brands does shade the truth from time to time. For example, he claims that U.S. leaders “sought to sustain a global balance of power that favored America and its democratic allies, and to advance liberal concepts such as democracy and human rights.” A not-complete list of the U.S. government’s perilous partners over the past 70 years reminds us that Washington’s commitment to promoting democracy and human rights has been inconsistent, at best.

  • Chiang Kai-shek (Taiwan)
  • Syngman Rhee/Park Chung Hee/Chun Doo-Hwan (South Korea)
  • Ayub Khan/Zia-ul-Haq/Pervez Musharraf (Pakistan)
  • The House of Saud
  • The Shah of Iran
  • Hosni Mubarak/Abdel Fattah el-Sisi (Egypt)
  • Plus a handful (or more) of generals and strongmen in Latin America

And herein lies a deeper point: U.S. foreign policy has often been geared toward advancing U.S. national interests, or, more accurately, how U.S. leaders defined those interests. On the other hand, Washington has wrapped its actions in a veneer of altruism and disinterest, always professing fealty to nobler goals. In his often ham-fisted way, Donald Trump has said publicly what many Americans have always believed: the true object of U.S. foreign policy is to protect U.S. security. When the public grows skeptical that U.S. policy is actually delivering such benefits (e.g. after Vietnam and Iraq), it has pushed for a course correction.

Can Brands’ version of American internationalism square the circle? Can it provide the public what it wants, while allowing U.S. elites to do what they think America, and more importantly the world, needs?

I’m skeptical. Brands calls on U.S. leaders to do at least six things:

1. American leaders will need to aggressively defend U.S. interests and the global order while avoiding the costly quagmires that have left so many Americans disillusioned.
2. They will need to drive harder bargains on burden-sharing and trade.
3. They will need to ensure that the pursuit of an open and profitable trading system does not come at the expense of vulnerable populations at home.
4. They will need to devise ways of better protecting the country’s borders and ensuring homeland security without losing the dynamism and societal rejuvenation that immigration provides.
5. They will need to strengthen the social safety net for those who need it most while also pursuing the reforms necessary to keep those programs — and the U.S. government — solvent over time.
6. They will need to get back to first principles in explaining why America’s global engagement really matters — and what would happen if Washington ceased to play such a role — while also giving more Americans a sense that their foreign policy truly does put them first.

To this list, I would add a seventh:

7. Because maintaining U.S. primacy will cost even more money than the substantial amount that we already spend on the military, U.S. leaders will need to convince Americans that internationalism is worth paying for with higher taxes, lower domestic spending, or, most likely, a combination of both.

I am not aware of any American politician willing to step forward with such a program. And, until that happens, expect Trump’s anti-internationalism to prevail.


E-Verify is a government national identification system that employers currently use voluntarily to screen out unauthorized immigrant workers. Members of Congress want to make the program mandatory for all employers with the Legal Workforce Act, which has passed the House Judiciary Committee three times. This legislation would be the largest employer regulation in terms of scale in the history of the United States, applying to every single employer and every single worker in the country and also roping in several agencies to run it. 

The system has already proven remarkably ineffective at its intended purpose—keeping unauthorized workers away from jobs. In fact, in many cases, it does the opposite—keeping authorized workers away from employment. While many have focused on how making it mandatory would increase the number of these errors, E-Verify is already causing headaches and costing jobs for legal workers.  In fact, from 2006 to 2016, legal workers had about 580,000 jobs held up due to E-Verify errors, and of these, they lost roughly 130,000 jobs entirely due to E-Verify mistakes.

Here’s how E-Verify catches innocent people. The system checks information all workers must provide on their I-9 forms against the databases of either the Department of Homeland Security (DHS) for legal immigrants or the Social Security Administration (SSA) for U.S. citizens. If the system fails to verify this information, it will issue a “tentative nonconfirmation” (TNC). People who receive a TNC must challenge it within two weeks or it turns into a “final nonconfirmation” (FNC), and the employer must fire them.

Legal workers can receive an erroneous TNC for a variety of reasons. Employers may have put their information into the system incorrectly. This is especially common for hyphenated names or individuals with multiple last names. It can also happen if someone changes their name, but SSA or DHS has failed to update their entry in the database. Errors can also occur when SSA or DHS employees enter a person’s information into the database.

Whatever the case, the employee has an affirmative duty to fix the issue. They must formally contest the error. If they are a citizen, they need to physically visit a Social Security Administration office to figure out the problem. If they are a legal foreign worker, they need to go to DHS. This process can take months because the worker has no idea what the problem is. In 2012, it took more than 8 days to resolve a TNC for more than a third of all legal workers who received one.

Unfortunately, U.S. Citizenship and Immigration Services (USCIS) data fails to report in more detail how long these took to resolve, which could potentially have taken months. For workers who need to submit a Privacy Act request to obtain their records, it can take more than three months even to obtain a response, let alone fix the underlying problem. As the Table below highlights, from 2006 to 2016, legal workers had to overcome 450,039 tentative nonconfirmations. Under the Legal Workforce Act, employers could condition employment based on an E-Verify confirmation, meaning all of these workers would lose weeks or months of wages. If the job was temporary, they could lose it entirely.

Table: E-Verify Cases and Errors, 2006 to 2016


Total Cases TNC % Overcome TNCs Overcome Erroneous FNC % FNC Errors Total Error % Total Errors

































































































Sources: Total cases (2006-2014): U.S. Citizenship and Immigration Services, “E-Verify History and Milestones,” January 19, 2017. TNC share overcome (2011-2016): U.S. Citizenship and Immigration Services (USCIS), “E-Verify Program Statistics – Performance.” USCIS archived pages. E-Verify Erroneous TNC and FNC rates (2006-2010): Westat, “Evaluation of the Accuracy of E-Verify Findings,” July 2012. (Note FNC error rate in Westat expressed in terms of share of FNCs.)

But that’s not all. Some legal workers lose the opportunity for a job completely due to E-Verify.  Legal workers can receive a FNC that results in them being permanently fired for two reasons. The first is that the person decides not to bother challenging the TNC. This accounted for roughly 17 percent of all erroneous FNCs, according to a study commissioned by USCIS. The other much more common reason is that employers neglect to tell them that they received a TNC. This accounted for 83 percent of erroneous FNCs.

The USCIS-commissioned study provides the erroneous TNC rates since 2006, but only provides the erroneous FNC rate for 2009. As the Table shows, the TNC error rate has improved over time, so this estimate assumes that FNC accuracy improved at the same rate as TNC accuracy. If this held true, then nearly 130,000 legal workers were wrongfully issued TNCs and then subject to wrongful FNCs that likely cost them their jobs.

Proponents of the Legal Workforce Act tout E-Verify’s accuracy, but the fact that the program works as intended for 99.8 percent of workers is less impressive when it is imposed on such a large population. The 0.2 percent equaled more than 62,000 people in 2016 alone. If all employers—big and small, with or without many foreign-born workers—were required to use it, the errors would grow. Indeed, if every new hire went through the system in 2017, at least 120,000 legal workers would have been wrongfully ensnared in the system in that one year alone, implying more than a million errors per decade.

E-Verify is a big government regulation that fails to prevent illegal immigration and harms U.S. workers. A better plan to eliminate illegal immigration would be to make hiring foreign workers legal. Legalize the current unauthorized immigrants and create a large year-round guest worker program. Government regulation has failed time and time again. America should try the free market for a change.

Every time I say something nice about monetary rules, as I did in my last post here, some Alt-M readers wonder why I’m doing that instead of championing free banking and choice in currencies. Have I given up my former views concerning the merits of these alternatives? Am I suffering from a bout of, or even from chronic, “fedophilia”? Might the Fed itself have purchased my apostasy?

Nothing of the sort. Although my views on the Fed, and on free banking, have changed somewhat since I first started writing on these subjects back in grad school (what sort of scholar would I be if they hadn’t?), they haven’t changed in any fundamental way. I still consider the acquiescence of economists in governments’ creation of currency monopolies to have been one of that professions’ greatest blunders; and I still favor freedom in banking, provided such freedom is understood to imply the absence, not just of extraordinary government regulations, but also of extensive government guarantees, whether explicit or implicit. Finally, I continue to oppose laws that interfere with people’s freedom to employ currencies other than the one officially sanctioned by their own government, whether those other currencies be public or private, paper or metallic or digital.

If I still believe all these things, why do I keep saying nice things about monetary rules? So what if a rule might be better than discretion, given the existence of a fiat-money issuing currency monopoly? If currency competition is better still, surely that’s what I ought to be plugging!

Well, yes…and no. I recently put it to my friend Gene Epstein this way. Suppose that the U.S. dollar is like the Titanic, and that all those who are employing U.S. dollars as their principal or sole medium of exchange are like the Titanic’s passengers. Suppose as well that the S.S. Dollar, to christen it so, having already hit an iceberg, is sinking, albeit slowly. (If you’re a stickler for verisimilitude, you are free to imagine that other ocean liners scattered around the seven seas are also sinking, some more rapidly than others. These are the world’s other government-supplied fiat monies.)

Now, there are in principle two ways of trying to spare the S.S. Dollar’s passengers. The first is to do whatever can be done to get other ships to come to their rescue. Besides sending the usual S.O.S. signals, allowing other ships complete freedom of the seas is obviously a good step. So is making it as easy as possible for the S.S. Dollar’s passengers to abandon ship and make their way to other, more seaworthy craft. Having an abundance of lifeboats (currencies that are themselves dollar-based, but at least a bit more seaworthy and maneuverable than the mother ship) also helps.

The other step consists of doing whatever can be done to keep the S.S. Dollar itself afloat, or at least make it sink less rapidly, by manning pumps, patching the hull, or other means.

It ought to be plain that the two options aren’t mutually exclusive, and that prudence dictates that both ought to be pursued. As free as they may be to come to the rescue, other ships and boats may take time getting there; and once they arrive, a last-minute rescue could prove both chaotic and costly, especially given passengers’ inclination to cling to their sinking ship until it takes its final plunge into the deep.

No analogy is perfect, of course; and the U.S. dollar certainly differs from the S.S. Dollar. For one thing, if the U.S. dollar is sinking, it’s doing so very slowly indeed. Moreover, unlike a sinking ship, a slowly sinking currency, insofar as that’s understood to mean one that’s slowly losing value, can go on sinking indefinitely. Finally, the fact that the dollar continues to lose value is perhaps less important than the fact that its mismanagement contributes to macroeconomic instability. Consequently it’s more like an unstable ship than a sinking one. But these particular differences only serve to reinforce the case for making the dollar itself at least a little more reliable and durable than it is now, provided that one can do so without interfering with anyone’s ability to either supply or use dollar alternatives.

As for those alternatives, if it’s prudent to try and keep the U.S. dollar, not only afloat, but sailing as smoothly as possible, it’s no less prudent to encourage discussion and development of superior, if not unsinkable, substitutes. And doing that has, of course, been Alt-M’s purpose all along.

[Cross-posted from Alt-M.org]

On Friday a Kentucky state appeals court ruled in favor of local print shop Hands On Designs, which had declined to print t-shirts promoting the Lexington Pride Festival because the shop’s owners disapproved of the ideological message of the shirts. The ruling, narrower than it might be, may in the end protect the owners against this particular claim under Lexington’s ordinance barring discrimination in public accommodations. It missed the opportunity, however, to make clear—as Cato urged in its amicus brief—that laws violate the First Amendment when they force people to print or utter words in which they disbelieve.

Eugene Volokh, who with UCLA’s First Amendment Clinic wrote Cato’s amicus briefnotes that the three-judge panel split three ways in the course of not reaching the First Amendment issue. The judge who wrote the lead opinion decided that the shop hadn’t breached the terms of the law in the first place, because the ordinance did not set up any protected category based on “message or viewpoint.” (There is no guarantee that courts elsewhere will follow that logic, however, especially since some anti-discrimination statutes, like Seattle’s, do purport to set up political or ideological opinion as a protected class.)

A concurring judge also cited a second reason for the shop owners to win, namely Kentucky’s version of RFRA (the Religious Freedom Restoration Act, which mandates accommodation). He reasoned that the law as interpreted burdened the owners’ religious practice and had not been shown, as required, to have done all it could to minimize burdens in the course of serving a compelling purpose. Again, not all courts in future cases will follow this path; many states do not have RFRAs, and even when they do, judges may rule that a given anti-discrimination law is a closely enough tailored measure for a sufficiently compelling purpose. 

The Hands On case inevitably invites comparison with the series of high-profile cases in which small business people have faced complaints and sometimes hefty damages under state and local public-accommodation discrimination laws for turning down requests to provide supplies and services (photography, floral arrangements, hall rental, cake) for the celebration of same-sex marriages. So far, the courts have mostly been unwilling to recognize the First Amendment issues involved in these cases. That’s one thing that jumps out at you about the Lexington case: it may be a matter of dispute whether the selection of angles and moods in photography is a form of expression, but if printing an opinion on a t-shirt doesn’t count as expression, what does? One landmark Supreme Court case, Cohen v. California, in fact hinged on the status of a garment slogan as expression. And as Ilya Shapiro pointed out in this space a year and a half ago, another important First Amendment case at the Court, 1977’s Wooley v. Maynard, found it an impermissible burden for a citizen to have to put on display a state slogan—New Hampshire’s “Live Free or Die”—with which he disagreed. 

For another viewpoint, see John Corvino at Slate, who agrees that this case is one raising the specter of forced expression, but disagrees with Cato’s analysis on the wedding cases. What remains to be fully confronted by the courts, I think, is the expressive status of ceremony, the fact pattern in most of the wedding cases. If ceremony and ritual are fraught with public message and moral significance, as many religious believers and not a few secularists would hold, then participation therein, even if in the role of an incidental walk-on, might convey expressive significance that is just as intense, or even more so, than the decision to display a license plate or print a message on a garment.

Earlier coverage of the Hands On Design case at Overlawyered herehere, and here.



A recent Science paper by J-F. Busteri and 30 named coauthors assisted by 239 volunteers found, looking at global drylands (about 40% of land areas fall into this category), that we had undercounted global forest cover by a whopping “at least 9%.” 239 people were required to examine over 210,000 0.5 hectare (1.2 acre) sample plots in GoogleEarth, and classify the cover as open or forested. Here’s the resultant cool map:

This has been the subject of a flood of recent stories, blog posts, tweets, and whatever concerning Bastin et al. But here at the Center for the Study of Science, we’re value added, so here’s some added value.

Last year, Zaichin Zhu and 31 coauthors published a remarkable analysis of global vegetation change since satellite sensors became operational in the late 1970s. The vast majority of the globe’s vegetated area shows greening, with 25-50% of that area showing a statistically significant change, while only 4% of the vegetated area is significantly browning. Here’s the mind-boggling map:

Trends in Leaf Area Index, 1978-2009. Positive tones are greening, negative are browning, and the dots delineate where the changes are statistically significant. There is approximately 9 times more area significantly greening up than browning down. 

Hope you’re sitting down for the money quote:

We show a persistent and widespread increase of growing season integrated LAI (greening) over 25% to 50% of the global vegetated area, whereas less than 4% of the globe shows decreasing LAI (browning). Factorial simulations with multiple global ecosystem models show that CO2 fertilization effects explain 70% of the observed greening trend…

And the other greening driver that stood out from the statistical noise was—you guessed it—climate change.

Now, just for fun, toggle back and forth between the two maps. As you can see, virtually every place where there’s newly detected forest is greening, and a large number of these are doing it in a statistically significant fashion. This may lead to a remarkable hypothesis—that one of the reasons the forested regions were undercounted in previous surveys (among other reasons) is that there wasn’t enough vegetation present to meet Bastin’s criterion for “forest,” which is greater than 10% tree cover, and carbon dioxide and global warming changed that.


Bastin, F-L., et al., 2017. The extent of forest in dryland biomes. Science 356, 635-638.

Zhu, Z., et al., 2016. Greening of the earth and its drivers. Nature Climate Change, DOI: 10.1038/


The Iran deal is working as advertised by containing Iran’s nuclear weapons program. That non-proliferation success creates a greater one: it vastly lowers the odds of a U.S. attack on Iran and pacifies relations. That’s what makes the deal anathema to those on both sides who would preserve enmity to gain in domestic political fights.

The deal’s fate may be sealed in the coming weeks. A presidential election Friday Iran will either re-elect Hassan Rouhani, who pushed for the deal and now defends it, or replace him with a hardliner. The Trump administration recently launched a review of Iran policy and the deal, which could yield a decision to try to undermine the agreement or to truly stay in it.

Under the 2015 deal, officially the Joint Comprehensive Plan of Action, Iran agreed to limit its nuclear program in various ways and allow International Atomic Energy Agency inspections in exchange for relief from some of the sanctions that the United States, the European Union, and the UN Security Council had imposed and the release of frozen funds. The deal leaves in place sanctions on Iran for human rights violations, ballistic missile development, and support for terrorist organizations. The Obama administration also dropped charges against a number of Iranian sanctions violators in exchange for Iran’s release of four American prisoners.

Last fall’s elections put the deal in peril. They matched a Republican Senate majority that had openly tried to undermine the deal’s negotiation with a militaristic president who opposed it as a candidate. Trump made typically contradictory statements about the deal in campaigning but mostly voiced hostility typical of GOP hawks. For example, he told the AIPAC convention, “My number-one priority is to dismantle the disastrous deal with Iran.” Trump’s top foreign policy appointees seemed to share a particular hostility to Iran. Even Secretary of Defense James Mattis, who many saw a lone voice of foreign policy caution, had notably belligerent views on Iran, even bizarrely suggesting that it had created ISIS, despite Iran’s aide for ISIS’s opponents in Iraq and Syria.

Despite this rhetoric, neither Congress nor the administration has raced to dismantle the deal. Congressional leaders have suggested they accept to abide by the deal. Senator Bob Corker (R-Tenn), chairman of the Senate Foreign Relations Committee did join the panel’s ranking member Robert Menendez (D-NJ) to introduce a bill that would heighten sanctions on Iran for missile development, support for terrorist organizations, and human rights abuses. Though adopting the bill would antagonize Iran and make it more difficult for the United States to hold up its end of the bargain, it would not directly violate its terms.

The Trump administration, thus far, has stuck with the deal, while huffing and puffing. Officials say they’ll honor its terms pending a review run by National Security Advisor General H.R. McMaster, who, notably, isn’t a strident proponent of confrontation with Iran, like his predecessor, General Michael Flynn. The State Department recently certified Iran’s compliance but proclaimed Iran’s continued support for terrorism in the same press release. Secretary of State Rex Tillerson knocked the deal for failing “to achieve the objective of a non-nuclear Iran,” seemingly referring to its retention of enrichment facilities. President Trump then claimed that Iran is “not living up to the spirit of the agreement” and called it “terrible.”

These statements are a boon to Iran’s hardliners, who call the deal a capitulation to the United States, which they see as irredeemably hostile. Evidence of that hostility also comes in U.S. policy: the Corker-Menendez bill, Iran’s inclusion in the Trump administration’s legally-fraught travel ban, potentially-heightened U.S. military aid for their rival Saudi Arabia in its brutal bombing campaign in Yemen, and a likely massive arms sale to the Saudis.

Ebrahim Raisi, now the main opponent of Iranian President Hassan Rouhani, says he would abide by the deal, but criticizes its failure to deliver the promised broad economic benefits. In recent debates, Rouhani has defended the deal, suggested he can produce greater economic growth by negotiating further sanctions relief, and even blasted the Iranian Revolutionary Guard for trying to undermine the deal through ballistic missile tests. Hawks on both sides thus unintentionally serve each other’s interests.

The difficulty that U.S. opponents of the deal face is that the case for it grows stronger with time, as the White House review should demonstrate. One reason for that is that the deal clearly aids relatively-reformist forces in Iran. Another is new business openings, which generate political support for the deal on both sides. Boeing, for example, has nearly finalized two agreements with Iranian airlines worth nearly $20 billion and conducive to a lot of U.S. jobs. Another is that addressing Iran’s problematic activities is easier with the deal in place.

The deal’s imperfections aren’t a reason to abandon it, and no deal could have made Iran saintly. Probably the most dangerous impulse in U.S. foreign policy is to try to eradicate problems rather than to manage them. Recent U.S. wars have shown that a bad situation can always get worse.

At 10 AM tomorrow, we’ll be discussing these issues at Cato. Journalist Laura Rozen will interview Ambassador Wendy Sherman, the lead U.S. negotiator in the talks that produced the deal. Cato’s Emma Ashford and Georgetown’s Ariane Tabatabai will provide comments.

The U.S. ambassador to the United Nations, Nikki R. Haley, told George Stephanopoulos on ABC’s “This Week” yesterday that “the president is the CEO of the country,” and thus “he can hire and fire whoever he wants. That’s his right.” Leaving aside the question of whether the president can fire everyone in the federal government, she is wrong on her main point. The president is not the CEO of the country. He can reasonably be described as the CEO of the federal government. The Constitution provides that in the new government it establishes, “The executive Power shall be vested in a President of the United States of America.”

Meanwhile, too many people keep calling the president—this president and previous presidents—”my commander in chief” or something similar. Again it’s important for our understanding of a constitutional republic to be clear on these points. The president is the chief executive of the federal government. He is the commander in chief of the armed forces, not of the entire government and definitely not of 320 million U.S. citizens. Article II, Section 2 of the Constitution provides:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.

Too many people who should know better keep getting this wrong. The highly experienced former first lady, senator, secretary of state, and presidential nominee Hillary Clinton for instance, who declared last year on the campaign trail, “Donald Trump simply doesn’t have the temperament to be president and commander in chief of the United States.” (She had also used the term a year earlier, and in her previous campaign she expressed a determination to be the “commander in chief of our economy,” so this wasn’t just a slip of the tongue.)

And also third-generation Navy man, senator, and presidential nominee John McCain who declared his support for President George W. Bush in 2007, saying, the Washington Post reported: “There’s only one commander in chief of the United States, and that’s George W. Bush.”

Now Donald Trump is getting the same treatment. Perhaps it’s no surprise that the Daily Mail, a popular newspaper in a country still headed by a monarch, would write

President Donald Trump sent a message to ex-FBI director James Comey and his detractors as he told Liberty University graduates that ‘nothing is more pathetic than being a critic’ during his first commencement address as the commander-in-chief of the United States.

But how about Democratic strategist Maria Cardona, writing in a Capitol Hill newspaper to mock President Trump’s historical ignorance:

How apropos that this famous and very fitting quote was likely used by the Abraham Lincoln, the president who actually was the commander-in-chief of the United States when the Civil War happened.


And here also Tim Weiner, a Pulitzer Prize-winning reporter and author of “Legacy of Ashes: The History of the CIA”: “Our commander-in-chief has made a serious miscalculation.”

The Military Times should know better than to write, “Business mogul Donald Trump was sworn as the nation’s 45th commander in chief on Friday, promising to return government to the people and return American might to the international stage.”

Even Joy-Ann Reid, who hates Trump, gives him a title he doesn’t possess, declaring that Trump’s “greed and neediness and vaingloriousness have made our commander in chief a national security threat.”

In this time when we worry about threats to the Constitution and our liberal republican order, we need to remember the basics. 

This is a constitutional republic, and we don’t have a commander in chief. 

That’s an important distinction, and it’s disturbing that even candidates for the presidency miss it. Hillary Clinton may well have wanted to be commander in chief of the whole country, of you and me, and to direct us and our economic activities the way the president directs the officers and soldiers of the armed forces. But if so, she would have needed to propose an amendment to the Constitution—an amendment that would effectively make the rest of the Constitution irrelevant, since it was designed as a Constitution for a limited government of a free people.

Donald Trump is not my commander in chief. Neither was Barack Obama. Each was elected president, charged with leading the executive branch of the federal government.