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The U.S. plans on filling Eastern Europe with thousands of troops along with vehicles and weapons to equip an armored combat brigade. That will require a special budget request of $3.4 billion for next year.

An unnamed administration official told the New York Times, that the step “fulfills promises we’ve made to NATO” and “also shows our commitment and resolve.” Moreover, said another anonymous aide: “This reflects a new situation, where Russia has become a more difficult actor.”

However, the basic question remains unanswered: Why is the U.S. defending Europe? The need for America to play an overwhelming role disappeared as the continent recovered and the Cold War ended.

Today NATO involves collective defense, but “their,” not “our,” defense. Although the Europeans sometimes join America in “out of area” activities, for which no alliance is necessary, they have never come to, and are unlikely to ever come to, America’s actual defense. Applying Article 5 after 9/11 was a nice act of solidarity, but European support was never necessary to strike al-Qaeda and oust the Taliban.

Nor is there any serious military threat to Europe. Russia may be “a more difficult actor,” but it is not a suicidal aggressor. Russia has gone from Soviet Union back to Russian Empire.

Vladimir Putin’s Russia cares about border security. It wants to be respected and have its interests protected. It doesn’t act precipitously, but it does act.

Moscow responded to what it perceived as Western provocations in Ukraine. That didn’t justify Russia’s support for Ukrainian separatists, but it was far different than a Hitleresque Blitzkrieg across Ukraine. Indeed, Putin wanted to weaken rather than swallow his neighbor, which would be indigestible.

Moreover, if this really is a “new situation” and “changed security environment,” why don’t the Europeans act like they believe that? The countries theoretically most at risk, the Europeans, continue to cut their military outlays and capabilities. As always, NATO stands for “North America and the Others.”

According to the alliance’s latest annual report, total NATO Europe expenditures went from $275 billion in 2010 to $253 billion last year. As percentage of GDP outlays have slipped from 1.64 to 1.43.

A majority of European countries have cut their spending. Overall, U.S. expenditures ran a bit more than 2.6 times those of Europe in 2010. The disparity had increased to almost 2.8 times in 2015.

Although NATO aspires to devote two percent of its members’ GDP to the military, NATO Europe managed just 1.43 percent overall. Only Estonia, Greece, Poland, and the United Kingdom hit the two percent level. Several of the alliance’s most important members fell below even this mediocre average.

On defense expenditures per capita the numbers are particularly striking. Last year the U.S. devoted $1865 per person to the military. NATO Europe spent $446 per person. Several European countries barely broke the $100 level.

The Eastern Europeans are theoretically at the greatest risk but do not impress with their efforts. They put little effort into their defense.

But NATO Secretary General Jens Stoltenberg proudly announced that the Europeans cut military outlays only a little last year. That’s his good news.

U.S. expenditures are down as well, but mainly because the U.S. no longer is so intensely fighting so many wars. The Obama administration is merely reducing the massive Bush build-up. And as a percentage of GDP America’s outlays are more than double those of the Europeans. Even though the U.S. faces even fewer serious military threats than does Europe.

World War II ended long ago. If the Europeans feel endangered, they should take action.

 After all, as I wrote for Forbes: “the U.S. is very busy in the world. Moreover, the U.S. government is effectively bankrupt. Washington no longer can afford to garrison the globe.”

The world is changing. So should America’s national security priorities. Europe should take over its own defense.

When I give speeches in favor of tax reform, I argue for policies such as the flat tax on the basis of both ethics and economics.

The ethical argument is about the desire for a fair system that neither punishes people for being productive nor rewards them for being politically powerful. As is etched above the entrance to the Supreme Court, the law should treat everyone equally.

The economic argument is about lowering tax rates, eliminating double taxation, and getting rid of distorting tax preferences.

Today, let’s focus on the importance of low tax rates and Cam Newton of the Carolina Panthers is going to be our poster child. But before we get to his story, let’s look at why it’s important to have a low marginal tax rate, which is the rate that applies when people earn more income.

Here’s the example I sometimes use: Imagine a taxpayer who earns $50,000 and pays $10,000 in tax.

With that information, we know the taxpayer’s average tax rate is 20 percent. But this information tells us nothing about incentives to earn more income because we don’t know the marginal tax rate that would apply if the taxpayer was more productive and earned another $5,000.

Consider these three simple scenarios with wildly different marginal tax rates.

  1. The tax system imposes a $10,000 annual charge on all taxpayers (sometimes referred to as a “head tax”). Under this system, our taxpayer turns over the first $10,000 of his or her income to the IRS, which means the average tax rate on $50,000 of income is 20 percent. But the marginal tax rate would be zero on the additional $5,000 of income. In this system, the tax system does not discourage additional economic activity.
  2. The tax system imposes a flat rate of 20 percent on every dollar of income. Under this system, our taxpayer pays that tax on every dollar of income, which means the average tax rate on $50,000 of income is 20 percent. And the marginal tax rate would also be 20 percent on the additional $5,000 of income. In this system, the tax system imposes a modest penalty on additional economic activity.
  3. The tax system has a $40,000 personal exemption and then a 100 percent tax rate on all income about that level. Under this system, our taxpayer pays $10,000 of tax on $50,000 of income, which means an average tax rate of 20 percent. But the marginal tax rate on another $5,000 of income would be 100 percent. In this system, the tax system would destroy incentives for any additional economic activity.

These examples are very simplified, of course, but they accurately show how systems with identical average tax rates can have very different marginal tax rates. And from an economic perspective, it’s the marginal tax rate that matters.

Remember, economic growth only occurs if people decide to increase the quantity and/or quality of labor and capital they provide to the economy. And those decisions obviously are influenced by marginal tax rates rather than average tax rates.

This is why President Obama’s class-warfare tax policies are so destructive. This is why America’s punitive corporate tax system is so anti-competitive, even if the average tax rate on companies is sometimes relatively low.

And this is why economists seem fixated on lowering top tax rates. It’s not that we lose any sleep about the average tax rate of successful people. We just don’t want to discourage highly productive investors, entrepreneurs, and small business owners from doing additional things that result in more growth and prosperity for the rest of us.

We’d rather have the benign tax system of Hong Kong instead of the punitive tax system of France. Now let’s look at the real-world (though very unusual) example of Cam Newton.

Writing for Forbes, a Certified Public Accountant explains why the quarterback for the Carolina Panthers lost twice at the Super Bowl.

Remember when Peyton Manning paid New Jersey nearly $47,000 in taxes two years ago on his Super Bowl earnings of $46,000? …Newton is looking at a tax bill more than twice as much, which will swallow up his entire Super Bowl paycheck, win or lose, thanks to California’s tops-in-the-nation tax rate of 13.3%.

You may be wondering why California is pillaging Cam Newton since he plays for a team from North Carolina, but there is a legitimate “nexus” for tax since the Super Bowl was played in California.

But it’s the marginal impact of the tax that matters. More specifically, the tax-addicted California politicians impose taxes on out-of-state athletes based on how many days they spend in the Golden State.

Before we get into the numbers, let’s do a quick review of the jock tax rules… States tax a player based on their calendar-year income. They apply a duty day calculation which takes the ratio of duty days within the state over total duty days for the year.

Now let’s look at the tax implication for Cam Newton.

If the Panthers win the Super Bowl, Newton will earn another $102,000 in playoff bonuses, but if they lose he will only net another $51,000. The Panthers will have about 206 total duty days during 2016, including the playoffs, preseason, regular season and organized team activities (OTAs), which Newton must attend or lose $500,000. Seven of those duty days will be in California for the Super Bowl… To determine what Newton will pay California on his Super Bowl winnings alone, …looking at the seven days Newton will spend in California this week for Super Bowl 50, he will pay the state $101,600 on $102,000 of income should the Panthers be victorious or $101,360 on $51,000 should they lose.

So what was Cam’s marginal tax rate for playing yesterday?

Losing means his effective tax rate will be a whopping 198.8%. Oh yeah, he will also pay the IRS 40.5% on his earnings.

In other words, Cam Newton will pay a Barack Obama-style flat tax. The rules are very simple. The government simply takes all your money.

Or, in this case, more than all your money. So it’s akin to a French-style flat tax.

Some of you may be thinking this analysis is unfair because California isn’t imposing a 198.8 percent tax on his Super Bowl earnings. Instead, the state is taxing his entire annual income based on the number of days he’s working in the state.

But that’s not the economically relevant issue. What matters if that he’ll be paying about $101,000 of extra tax simply because the game took place in California.

However, if the Super Bowl was in a city like Dallas and Miami, there would have been no additional tax.

The good news, at least for football fans, is that Cam Newton has a contract that prevented him from staying home and skipping the game. So he didn’t have any ability to respond to the confiscatory tax rate.

Many successful taxpayers, by contrast, do have flexibility and they are the job creators and investors who help decide whether states grow faster and stagnate. So while California has the ability to pillage Cam Newton, the state is basically following a suicidal fiscal policy because other people can choose to stay away.

Prof. Ricardo Hausmann, a native of Venezuela and professor at Harvard, concluded in a Financial Times op-ed last week that Venezuela will go down the tubes. Indeed, Hausmann wrote that “It is probably too late to avoid a Venezuelan catastrophe altogether. But to reduce its length and intensity, the country needs to adopt a sound economic plan that can garner ample international financial support. This is unlikely to happen while Mr. Maduro remains in power.”

The nub of Hausmann’s diagnosis of the infirmed patient is clear:

As bad as these numbers are, 2016 looks dramatically worse. Imports, which had already been compressed by 20 percent in 2015 to $37bn, would have to fall by over 40 percent, even if the country stopped servicing its debt. Why? If oil prices remain at January’s average levels, exports in 2016 will be less than $18bn, while servicing the debt will cost over $10bn. This leaves less than $8bn of current income to pay for imports, a fraction of the $37bn imported in 2015. Net reserves are less than $10bn and the country, trading as the riskiest in the world, has no access to financial markets.

There’s no doubt that Hausmann’s arithmetic is correct. Add to that the fact that Venezuela’s implied monthly inflation rate is 21%, according to my estimates, and its implied annual inflation rate is 442%. Not a pretty picture.

And that’s not all. As I observe the socialist destruction of Venezuela that has ensued under the reign of Hugo Chavez and now Nicolas Maduro, it is clear that Maduro has no economic strategy. Indeed, I doubt if Maduro knows what the word “strategy” means.

Venezuela is going down the tubes.

For most of Obama’s years as president, he has opposed raising the gas tax. Now, in his last, lame-duck year, he is proposing a $10 per barrel tax on oil. Since a 42-gallon barrel of oil produces about 45 gallons of gasoline, Diesel, jet fuel, and other products, this is roughly equal to a 22 cent per gallon gas tax, well above the current 18.4 cent tax.

The distinction between Obama’s oil tax and a gas tax is that the oil tax wouldn’t go into the Highway Trust Fund, where up to 80 percent goes for roads and 20 percent goes for transit. Instead, he proposes to spend $20 billion per year on alternatives to autos, including urban transit, high-speed rail, and mag-lev. Another $10 billion per year would be given to the states for programs that would supposedly reduce carbon emissions such as “better land-use planning, clean fuel infrastructure, and public transportation.” Finally, $3 billion would go for self-driving vehicle infrastructure that is both unnecessary and intrusive.

Obama proposes that the oil tax be phased in over five years, so that $33 billion is the average of the first five years; when fully phased in, the tax would bring in nearly $60 billion a year. This would be a huge slush fund for all kinds of social engineering programs.

The Republicans who run Congress plan to ignore Obama’s plan. The president’s “proposals are not serious, and this is another one which is dead on arrival,” says Senate Environment & Public Works Committee Chair James Inhofe (R-OK). Still, it’s worth looking at the plan as a preview of what might be proposed by the next president if that president happens to be a Democrat.

The first thing to note is that the White House no longer makes any pretense that taxes should be raised to fix supposedly crumbling highway infrastructure. As I’ve noted before, the claim that highways are falling apart is just a fiction used to generate support for more funding for rail lines and other boondoggles. None of the money raised under Obama’s new proposal would be used to repair or maintain roads, and–since maintenance doesn’t reduce greenhouse gas emissions–probably none would be used to repair or maintain rail transit lines that, unlike roads, truly are crumbling.

Second, anyone who agrees with Obama’s claim that there is no “greater threat to future generations than climate change” should wonder why his plan proposes no tests to insure that funds would cost-effectively reduce greenhouse gas emissions. Urban transit uses as much energy and emits as many grams of carbon per passenger mile as driving. High-speed rail could actually be worse than driving, especially when the energy costs of building the infrastructure are counted. It would be more cost-effective to spend that $33 billion per year buying 1.4 million Priuses and trading them to owners of existing gas guzzlers.

Third, the land-use planning that Obama proposes to fund would no doubt follow the example of California’s SB 375, which aims to coerce more people into living in apartments rather than single-family homes on the pretext that higher densities lead people to drive less. This claim has been disproven by research and the experience of the San Francisco Bay Area, whose two-thirds increase in population density since 1980 was accompanied by a one-third reduction in per capita transit trips and an increase in per capita driving.

Fourth, Obama’s plan would significantly increase the cost of living. On one hand, Obama’s political calculus is that raising taxes is easier when oil prices are low. On the other hand, at today’s prices, a $10 per barrel tax increases fuel costs by nearly a third. Though the administration claims that the $10 tax would be “paid by oil companies,” those companies would, of course, pass the cost to consumers. As Americans consume about 2.5 gallons of oil per person per day, the tax would impose costs of about $200 per person per year.

The White House argues that its plan “builds on the success the country has seen as a result of the American Recovery and Re-investment Act of 2009.” What success? The transportation share of that trillion-dollar boondoggle built a few streetcar lines (one of the least energy-efficient forms of urban travel), increased speeds on a few intercity rail lines by a few miles per hour, and otherwise disappeared into a black hole of pork-barrel spending. Did it reduce greenhouse gas emissions or create any jobs that wouldn’t have been created without it? Probably not.

In short, as one budget analyst confided to me, Obama’s plan is “Premeditated coercion and higher costs of living masquerading as environmentally friendly, job-creating transportation ‘investments.’” Republicans will be right to reject it, but they will be wrong to dismiss it as a similar plan is likely to appear next year if a Democrat wins the White House.

Early yesterday morning, after a fifteen month battle with brain cancer, Senior Fellow in Education Policy Andrew Coulson passed away. He is survived by his beloved wife Kay. Andrew was 48 years old.

Andrew’s death is very sad news for everyone at Cato, but especially those of us at the Center for Educational Freedom, where Andrew was the director—and an almost impossibly sunny colleague—for more than a decade. Coming from a computer engineering background, Andrew seized on education reform—and the need for educational freedom—not because he had spent a career in education, but because he saw a system that was illogical, that was hurting society and children, and that needed to be fixed.

And when Andrew wanted to fix something, he went to work.

Andrew hit the radars of everyone involved in education reform—especially school choice—with his 1999 book Market Education: The Unknown History, which captured exactly what he wanted everyone to know about education. For much of history, Andrew made clear, education was grounded in the free and voluntary interactions of teachers, students, and families—and when it was, it worked better for everyone than the rigid, moribund, government-dominated model we have today.

Andrew was not in the reform vanguard just in laying out the historical, logical, and empirical case for truly free-market education, but also in determining how, practically, to do that. Andrew was perhaps the earliest and clearest voice calling for tax-credit funded choice in preference to publicly funded voucher programs, which are themselves infinitely preferable to being assigned to a school based simply on your home address. Tax credit programs, he argued, would be more attractive—except to those who would lard regulations onto schools – by breaking the connection between state money and school choices. People would choose whether to donate to scholarships, and even to which organizations or schools such donations would go, rather than have the state hand out funds from all taxpayers.

Today, the wisdom of this choice mechanism has been borne out, with tax-credit-based programs starting later than vouchers, but now exceeding total enrollment by about 53,000 students. And enrollment through private educational choice programs of all types—vouchers, tax credits, and education savings accounts—has ballooned since 1999, when Market Education was published, from just a few thousand children to nearly 400,000.

That is tremendous progress. But as Andrew would be the first to proclaim, it is not nearly enough. Indeed, with an eye to pushing choice much further, before he died Andrew was putting the finishing touches on a documentary series vividly and humorously illustrating why we need educational freedom, and the great benefits even limited freedom in education has produced. We hope Andrew’s labor of love will be appearing on television sets across the country in the coming months.

Andrew Coulson is no longer with us. Thankfully, his ideas remain, and they will always illuminate the pathway forward. 

You Ought to Have a Look is a feature from the Center for the Study of Science posted by Patrick J. Michaels and Paul C. (“Chip”) Knappenberger.  While this section will feature all of the areas of interest that we are emphasizing, the prominence of the climate issue is driving a tremendous amount of web traffic.  Here we post a few of the best in recent days, along with our color commentary.

If you read only one thing this week that falls within the realm of human-caused climate change, we strongly suggest this one—Dr. John Christy’s written testimony before the U.S. House of Representatives Committee on Science, Space & Technology.

In it, he produces clear, strong evidence that the climate models are producing too much warming from greenhouse gas emissions and that there exists a concerted effort to try to downplay this fact to policymakers and the general public.

Christy’s Feb. 2nd testimony is an expansion of his earlier testimony Dec. 8th before the Senate’s Commerce, Science & Transportation’s Subcommittee on Space, Science and Competitiveness.

The central element of his December testimony was that climate models are failing miserably at simulating the actual temperature rise in the earth’s lower atmosphere. The models produce about 2.5 times as much warming from human greenhouse gas emissions than has actually been observed by satellites and weather-balloons.

This fact caught Senator (and current presidential hopeful) Ted Cruz’s fancy and he included it in several post-hearing communications on the topic of human-caused global warming—which of course got the global warming alarmist fanbase in a tizzy. So much so that they went so far as to produce a snazzy video aimed to shoot down Christy’s satellite observations as unreliable and untrustworthy.

In his testimony this week, Christy shoots back—with a big gun.

Here are some of his zingers.

“It is a bold strategy in my view to actively promote the output of theoretical climate models while attacking the multiple lines of evidence from observations.”

“Investigations of us by congress and the media are spurred by the idea that anyone who disagrees with the climate establishment’s view of dangerous climate change must be on the payroll of scurrilous organizations or otherwise mentally deficient.”

“[T]hese models failed at the simple test of telling us ‘what’ has already happened, and thus would not be in a position to give us a confident answer to ‘what’ may happen in the future and ‘why.’”

“The information in this figure provides clear evidence that the models have a strong tendency to over-warm the atmosphere relative to actual observations.  On average the models warm the global atmosphere at a rate 2.5 times that of the real world.” 

“Because this result challenges the current theory of greenhouse warming in relatively straightforward fashion, there have been several well-funded attacks on those of us who build and use such datasets and on the datasets themselves.  As a climate scientist I’ve found myself, along with fellow like-minded colleagues, tossed into a world more closely associated with character assassination and misdirection, found in Washington politics for example, rather than objective, dispassionate discourse commonly assumed for the scientific endeavor.”

And, these are just the tip of the iceberg, you really ought to have a look at Dr. Christy’s entire testimony in which he touches on topics that, in addition to the abject failure of climate models, include deficiencies in surface temperature compilations, problems with sea surface temperature observations, and the (non) impact of the Paris Climate Accord.

A highly informative, enlightening, and entertaining read!

In environmental policy, the precautionary principle states that a new product, method, or proposal whose effects are disputed or unknown should not be introduced if it is harmful.  The burden of proving that it is harmless falls on its backers – virtually guaranteeing that it won’t be produced.  In contrast, a cost-benefit analysis that compares the probability of harm with the expected magnitude of the benefits is a better method. 

The methods of the precautionary principle are implicitly applied by many opposing the resettlement of Syrian refugees because they deem any risk of terrorism as too great.  The precautionary principle is as improper a standard for determining refugee policy as it is for guiding environmental policy. 

Arguments derived from the precautionary principles are often emotionally driven.  Senator Shelby (R-AL) made such an appeal  when he stated, “We don’t know much about these people. They haven’t really been vetted. They come from an area where there’s a lot of turmoil, a lot of terrorists come from. We don’t need one more terrorist; we got enough right now.”

Senator Shelby is correct that we don’t need another terrorist, but he didn’t explain that the risk of a terrorist coming through the refugee system is low. 

3,252,493 refugees were admitted to the United States from 1975-2015.  During that time period, 20 of those individuals attempted to carry out a terrorist attack or succeeded in doing so inside of the United States.  That is a single terrorist for every 162,625 refugees admitted or one every two years since 1975. 

Although there were only 20 refugee terrorists admitted since 1975, they have only succeeded in murdering three Americans.  Each one of those murders is a tragedy but the chance that an American would be successfully killed by a refugee terrorist was one in 3.6 billion.  Each year an American had a 0.000000028 percent chance of being murdered by a refugee terrorist (for those with poor eyesight, that’s seven zeros to the right of the decimal point).  That’s a small risk.

But, as the implicit proponents of the precautionary principle claim, the costs of refugees in the future could be greater.  Letting them in today could set up a whole raft of unforeseeable future problems unlike those of the past.  That is true.  So even if the rate of murder for future refugees is 100 times greater than the 1975-2015 period, the chance of an American being murdered each year would riseto one in 36.4 million annually or 0.0000028 percent.

Anything could change in the future.  The precautionary principle always rigs the outcome in favor of immigration restriction because it’s impossible to prove that all refugees will be harmless just like it is impossible to prove than any of us will be harmless.  If the precautionary principle is a starting point for debate then those favoring refugees will always fail.  No debate should be stacked this way.        

Perhaps the victims of terrorism from refugees should be very heavily weighted than other deaths in any risk calculation.  Perhaps the threat from ISIS or Syrian refugees is unlike any ever faced and more caution is warranted (highly, highly unlikely).  Perhaps our social, political, economic institutions are more fragile than they appear and could be easily undone by a few refugee terrorists.  Any of those factors being true could tilt the cost-benefits scales against admitting Syrian refugee but such dire predictions are currently unwarranted and must be weighed against the costs of not admitting Syrian refugees. 

Unforeseen Costs of Barring Refugees

There are costs to current Americans of not granting entry to some Syrian refugees.  Barring their admission could create a greater security risk in the future.  Refugees who languish in refugee camps for years or decades are more likely to be radicalized and become terrorists.  Under such a situation, allowing them to resettle in the United States could drain the swamp and decrease the fecundity of terrorist breeding grounds.

Refugees going to other countries, like Sweden, often settle in horrid welfare-subsidized situations in over-regulated labor markets where their LFPRs are initially less than half those of natives – producing another fertile breeding ground for violence.  Their LFPRs do increase over time but do not converge with natives.  Allowing many of those refugees to instead settle in the United States where they are about as active in the labor market as native born Americans and usually build themselves out of poverty without much welfare would also decrease the long term global terrorism risk. 

Syrian refugees could also be valuable foreign intelligence assets, just like many Hungarian, Vietnamese, and Cuban refugees were during the Cold War.  As my colleague Patrick Eddington noted, refugees should be especially motivated to help contain ISIS.  More accurate intelligence decreases the risks of future terrorist attacks, all else being equal.

Other Policy Changes to Further Reduce the Risks

If the refugee gate is widened, other policy changes can reduce the risk of violent extremism now and in the future as well as the short-term fiscal costs that turn net-positive after 10 to 15 years.  Cutting off government welfare benefits for refugees will decrease the public expense and incentivize economic self-sufficiency, self-confidence, and decrease alienation – all character-attributes correlated with terrorism.  Allowing private sponsorship of refugees is another way to decrease the public risk by outsourcing the monitoring of refugee integration to committed NGOs and individuals spending their own money.  Canada has successfully used this strategy and some Senators are now interested.      

Not overreacting to small terrorism risks would aid in the assimilation of immigrants with the same religious background. 

Conclusion

The precautionary principle emphasizes the “better safe than sorry” mentality but shelters us from the reality that nothing is absolutely safe.  Risk is on a spectrum, it is not binary.  The fear of high risks and uncertainty should not stop the resettlement of Syrian refugees here, only if a realistic projection that the long term harms would exceed the long term benefits should convince the government to further block Syrian refugees.  A cold, hard look at the risks and benefits of allowing more Syrian refugees favors a more open policy.

The National Conference of State Legislatures recently held a briefing on REAL ID, the U.S. national ID law, for state legislators that is both fascinating and strange. It is fascinating to see Department of Homeland Security officials prevaricate so openly before state officials about what this national ID law does. And it is strange to see the National Conference of State Legislatures, a group that nominally represents the interests of states, working with the federal government to erode state power.

DHS officials evidently see it as a priority to avoid the impression that REAL ID compliance creates a national identification system. DHS’s PowerPoint presentation to NCSL, echoed in the oral briefing, insists that REAL ID “[d]oes not create a national ID card, a Federal database of driver information, or new Federal access to state data.”

It’s true that the REAL ID law doesn’t require states to hand driver data over to the federal government in bulk. (The E-Verify RIDE program is for that.) But states will probably not be able to refuse a bulk information sharing requirement if and when the DHS creates a policy giving itself access. But score that part of this statement as accurate for now.

The question of a national database I addressed a few weeks ago in response to an inaccurate DHS “rumor control” web page. There is absolutely a national database system, equivalent to a single, centralized database, and it is required by the REAL ID law. Perhaps DHS’s briefers used the word “federal” to mislead the NCSL audience. The database system that REAL ID demands of states would be operated by states and the American Association of Motor Vehicle Administrators at the federal government’s behest. That’s not a “federal” database, technically, because it is owned and managed by states and the umbrella organization for departments of motor vehicles. But is surely a database run for the federal government and federal purposes. It’s clever phrasing that would tend to mislead the NCSL audience on this topic.

Finally, there’s the question of a national ID card. I know of no argument—much less a good one—that REAL ID doesn’t create a national ID. There is only bald insistence. As I’ve noted many times before, having written the book on the matter, a national ID card or system has three elements: First, it is national. That is, it is intended to be used throughout the country, and to be nationally uniform in its key elements. REAL ID is exactly that. Second, its possession or use is either practically or legally required. In fairness, for most people, a driver’s license or state-issued ID is practically required. And finally, it is used for identification. Case closed.

But DHS insists that REAL ID is not a national ID.

Now to the strange part. NCSL—the National Conference of State Legislatures—calls itself “the champion of state legislatures.” But REAL ID compliance means as a practical matter that states sign off forever on their authority over driver licensing. Once DHS locks states in, they are not going to get out.

You would think that reducing state government power is something NCSL would resist, but here they are, helping the DHS coax states into abandoning yet more authority to the federal government. I don’t know if state legislators value administering federal programs, or if they generally feel like that is what they seek office to do. I suspect they don’t. But here is a group purporting to represent them feeding them information that makes them less powerful and less important.

Yes, there’s a prevarification available to the DHS in this area, too. The law allow states a choice as to whether to comply with REAL ID. It merely threatens to deprive their residents of the right to travel by refusing their IDs at airports. That is the same choice offered by a mugger: Your money or your life. It’s not the kind of choice a “champion” of state legislatures should probably subject them to.

NCSL’s REAL ID web page could make clear to state legislators that by hanging together, they can back the Department of Homeland Security down. As it has recently done again, DHS will back down every time one of its manufactured deadlines arrives, if states decline to comply. The long game DHS is playing—successfully—is to frighten state legislators every few years to get a little more compliance in a few more places. Thanks, but no thanks, NCSL, for helping the federal government undercut state power and implement a national ID system.

With the passage of the Twenty-first Amendment in 1933, the United States enacted Repeal and abandoned its failed experiment with Prohibition. And that settled that, right? At least until this week:

Women of childbearing age should avoid alcohol unless they’re using contraception, federal health officials said Tuesday, in a move to reduce the number of babies born with fetal alcohol syndrome.

“Alcohol can permanently harm a developing baby before a woman knows she is pregnant,” said Anne Schuchat, principal deputy director of the Centers for Disease Control and Prevention. “About half of all pregnancies in the United States are unplanned, and even if planned, most women won’t know they are pregnant for the first month or so, when they might still be drinking.

And more (emphasis added): 

Further, the report states that because half of all pregnancies in the United States are unplanned, it’s risky for women to drink any amount at any time during which she may intentionally or unintentionally become pregnant.

Early reactions often involved shock (“incredibly condescending,” wrote the Washington Post’s Alexandra Petri) and bewilderment at the seeming creation of a new class of women who were not to be trusted with making their own choices, namely the “pre-pregnant.” Rebecca Kukla, a professor at the Kennedy Institute of Ethics, took issue with the dictate even as regards women who definitely are pregnant:

“We don’t tell pregnant women not to drive cars, even though we are much more certain that there’s a nonzero risk to their fetuses from each car ride than from each drink,” she said. “The ideal of zero risk is both impossible to meet and completely paralyzing to try to meet.”

Kukla argues that such guidelines are also excessively punishing. “The idea that the pleasures and routines that make up women’s days are mere luxuries that are not worth any risk whatsoever is patronizing and sexist,” she said. “And it would also turn their lives into complete hell if really taken to [its] conclusions.”

And yet I would have expected no less from a CDC headed by Thomas Frieden, formerly Mayor Michael Bloomberg’s public health czar in New York City. Under Frieden, an arch-enemy of salt, sugar, and guns, the CDC to the detriment of its focus on communicable disease has involved itself in topics from playground safety to suburban housing sprawl; has boldly employed federal tax dollars toward lobbying for changes in law; has set itself against all evidence that e-cigarettes (“vaping”) can serve as vital harm reduction for persons who would otherwise smoke; and much, much more. 

Beverage consumption for adult women, as for men, is best governed by a course of prudence and moderation. The best course of prudence and moderation for the federal CDC would be a future without Thomas Frieden

Pessimism about potentially life-enhancing technologies is not new. The Twitter account Pessimist’s Archive (a favorite of the internet guru Marc Andreessen) chronicles the unending stream of pessimism with old newspaper excerpts. 

Pessimistic reactions range from merely doubtful (such as this response to the idea of gas lighting in 1809, or this one to the concept of anesthesia in 1839) to outright alarmist (such as this 1999 warning that e-commerce “threatens to destroy more than it could ever create”). 

In some cases, the pessimists insist that an older technology is superior to a new one. Some, for example, have claimed that an abacus is superior to a computer and a pocket calculator, while others claimed that horses are longer-lasting than the dangerous “automobile terror.” 

Others argue that new technology is damaging existing businesses and customs. One particularly emotional 1918 article described how automobiles are destroying the livery stable business and, together with “the movie show,” changing dating forever by ending the tradition of romantic carriage rides. 

Another frequent complaint is that new technology exacerbates inequality, because the wealthy tend to adopt new technologies first. One article from 1914, for example, laments that “wireless telephones” will only ever “be a boon to privileged persons.” The article was referring to the early wireless radiotelephones being developed at that time, which were not lightweight handheld devices. Today, of course, wireless phones can fit in your pocket, have many more capabilities, and are ubiquitous. Eventually, the free market tends to drive down the cost of technologies, making them accessible to more people. 

Perhaps what is most remarkable about pessimistic responses to new technology is how often the pessimists successfully use the power of the state to try to halt technological progress. 

In the 1930s, pessimists feared that radios were a threat to democracy and worried that the devices were ruining childhood. By 1936, the pessimists had succeeded at banning radios in cars in a number of U.S. cities, arguing that they were distracting and might prevent drivers from hearing fire engine sirens. 

Sadly, techno-pessimists have managed to enact bans or partial bans on a great variety of technologies. These include “horseless carriages” (cars), “automatic lifts” (elevators), and bicycles (which are “the most dangerous thing to life and property ever invented” according to an 1881 New York Times article). The list also includes, more recently, video gamesheadphones, and hover-boards. 

As new breakthroughs continue to occur practically every day, looking back at how people decried and fought against progress in the past helps put current technological and scientific debates in perspective.

The leaders of the Army and Marine Corps made headlines Wednesday when they called for expanding the Selective Service System to include women.

In response to a question by Sen. Claire McCaskill (D-Mo.), Gen. Mark A. Milley, chief of staff of the Army, stated “I think that all eligible and qualified men and women should register for the draft.” Milley’s counterpart, Marine Corps commandant Gen. Robert B. Neller, said after a hearing of the Senate Armed Services Committee that registration was a step that any young American must take on the way to adulthood. All U.S. citizens should be included, Neller said, “now that the restrictions that exempted women from [combat jobs] don’t exist.” He continued, “It doesn’t mean you’re going to serve, but you go register.”

The logic seems unassailable. If the military no longer discriminates against women who are qualified to serve, why should registration be limited only to men? And if the law remains unchanged, and compels only men to sign up, it will only be a matter of time before an equal protection challenge is brought before the courts. 

Over at the Washington Post Online, I suggest a different idea: rather than requiring women to register for the draft, let’s do away with Selective Service altogether, for women and men.

The entire architecture of the conscripted military is anachronistic and unnecessary. We’ve operated with an all-volunteer force for decades, and no one, regardless of gender, expects that they’ll be drafted. Meanwhile, the wars that we actually fight don’t depend upon conscription, and future wars aren’t likely to, either.

I go a bit into the history of the draft, but point out that the main reason why mass conscription didn’t remain in place after the end of World War II was because it wasn’t necessary. The wars in Korea and Vietnam didn’t call for more than 10 million men to fight them. The Selective Service System was open to criticism for being unfair, especially as the number of deferments expanded during the Vietnam War, but the alternative – universal military training – would have been worse: compelling millions of men into a military that didn’t want them or need them.

I’ve heard the other arguments for a return to conscription, but none are compelling, and any possible benefits are offset by the costs.

For example:

a draft would likely reduce the military’s fighting effectiveness. Today’s force is uniquely capable precisely because it is comprised entirely of volunteers, men and women who choose to join the military for a variety of reasons, including the desire to serve their country, but also because of the exceptional opportunities and benefits available to those in uniform. Overall compensation for troops is more than competitive relative to their comparably skilled peers, and Americans are willing to invest in their professional development because we are confident that many of them will remain in service long enough for our investment to be worthwhile. By contrast, draftees of the ’40s, ’50s and ’60s weren’t expected to stick around after their obligation expired, and thus received minimal training. A conscripted military might be larger, but it wouldn’t be better.

As for the claim that the all-volunteer army explains Washington’s greater propensity to go to war, and that a draft would make lawmakers actually think before starting them, I point out that this ignores the very few protracted ground wars fought in the first 16 years of the post-conscription era (none, by my count), and likewise cannot explain why other countries around the world with volunteer militaries are far less war-prone than we are. 

It isn’t even obvious to me that the draft was the decisive factor in ending the U.S. war in Vietnam: 

It may be true that self interest drove some men with other priorities to oppose that war, and that the draft, therefore, helped hasten the war’s end. On the other hand, the existence of a draft actually made it easier for President Lyndon Johnson to dramatically increase the size of the U.S. ground commitment in Vietnam with little public debate. The protests came too late to prevent more than 58,000 names from being carved into that memorial on the Mall.

In the highly unlikely event that we ever again needed a mass-conscripted army to defend the United States, Congress could pass a law to reconstitute the Selective Service System. But the sensible course right now is to stop requiring men (or women) to register for the draft. 

You can read the whole thing here.

Yesterday, Senator Rob Portman (R-OH), a former U.S. Trade Representative during the George W. Bush administration, announced his opposition to the Trans-Pacific Partnership. 

According to Reuters:

Portman, from Ohio, said the Pacific trade deal fails to meet the needs of his state’s workers because it lacks an enforceable provision to fight currency manipulation and because of new, less-stringent country-of-origin rules for auto parts.

“I cannot support the TPP in its current form because it doesn’t provide that level playing field,” Portman said in a statement.

The announcement is significant because passage of the TPP will rely on broad Republican support and because Senator Portman’s credentials (as former USTR and member of the Senate Finance Committee who represents a traditionally trade-skeptic region of the country) have earned him a prominent voice on trade policy in Washington.

The announcement is also noteworthy because the rhetoric and reasons the Senator used to support his opposition are completely at odds with his strong voting record on trade in Congress.  According to Cato’s online trade votes database, Senator Portman is a solid “Free Trader

The Senator’s antagonistic position on the TPP is almost certainly related to the fact that he is up for reelection this year.  Ohio is well-known hotbed for trade restrictionist sentiment.  Portman’s fellow Senator is Democrat Sherrod Brown, one of the most active advocates for interventionist trade policy in Congress today.  The current governor of Ohio is Republican presidential candidate John Kasich, who recently spoke about the importance of antidumping tariffs to help the steel industry.  In short, Portman faces political realities that limit his ability to support economically-sound trade policy.   

Other Republicans who have come out against the TPP have largely justified their opposition through reasons unrelated to the value of free trade.  They have relied on partisan distrust of Obama, vague constitutional objections to fast track, or conspiracy theories related to immigration. 

Portman, on the other hand, has gone full protectionist.  His concern for foreign currency manipulation and rules of origin reveal a close relationship between his position on trade and the interests of Detroit automakers. 

Rules of origin lay out how much of a product’s content or value must be produced within TPP countries for that product to qualify for tariff-free treatment under the agreement.  Liberal rules of origin are generally controversial (among people who don’t understand the benefits of unilateral free trade) because they allow other countries (China) to benefit from trade liberalization without making commitments of their own.

Strict rules of origin, however, make preferential trade agreements like the TPP less valuable economically by restricting the development of global supply chains.  Rules of origin are also an excellent opportunity for rent-seeking by industries that want the agreement to privilege their supply chain arrangement over those of their competitors.  Specifically, strict rules of origin in the TPP will impose a greater burden on Japanese automakers than on Detroit automakers.

It’s easy to blame local politics for a politician’s unprincipled stances on trade.  But Portman’s awful rhetoric reveals an inability to make a compelling case for good economic policy or an honest adherence to illiberal economic ideology.  Explaining his opposition to the TPP on purely protectionist grounds represents a missed opportunity to say correct things about the value of trade. 

The decline in U.S. manufacturing employment is part of our development into a wealthier, service-oriented economy.  It is progress.  Senator Portman’s pandering to protectionists won’t bring manufacturing jobs back to Ohio, but it will contribute to the efforts of special interests to keep prices high for consumers and reduce economic growth by limiting our freedom to trade in an open, global economy.

Over at Cato’s Police Misconduct web site, we have identified the worst case for the month of January.  It was the case from Suffolk County, New York, involving now former police officer, Scott Greene.  He was convicted of repeated instances of theft.

According to the evidence introduced at the trial, Greene would target Hispanic drivers, pull them over, order them to surrender their wallets, or invent a reason to search their vehicles and then steal cash located inside.  By stealing from persons he thought were illegal immigrants, Greene thought his victims would not come forward to file any complaint.  And he would enrich himself by using his police powers.  Prosecutor Tom Spota called Greene a “thief with a badge” and says he will be seeking the maximum possible prison sentence–about four years.

Alas, there are problems in the Suffolk department even beyond Greene.  The recently departed chief, James Burke, has been indicted for abusing a suspect and then coercing his subordinate officers to cover up his crime.  Local community activists say the department is so corrupt that they want a federal takeover.  Stay tuned about that.

A new health club opened in my neighborhood recently and I told my wife I wanted to join it. She agreed, providing that I gave up something we were spending elsewhere to pay for the $1,200 annual membership.  I don’t want to give up anything fun so I decided to adopt the Congressional approach to budgeting to achieve such savings.  It turned out to be a snap.

The first thing I did was claim $150 in credit from a restaurant app I use called Open Table.  Each time I use the app to reserve a table it gives me the equivalent of $1 towards a future meal.  Since I got the app five years ago I’ve never gotten around to using these, but now seems a propitious time.

Next, I let our discount deals expire with the cable company and the newspaper. Each has a base price it offers subscribers, but if I call and threaten to stop my subscription they give me the discount for new subscribers. So I let each expire for a week and then called to get the new subscriber deal again. Together, that saved me $850.

I was still a bit short, but then I got an unexpected $200 check from a friend that owed me for tickets I got us for a visit to Wrigley Field last Summer.  I had written off the money off-my friend was jobless at the time–so it represented a genuine windfall.

I presented these “savings” to my wife and she was not at all amused. She agreed to give me credit for this, albeit grudgingly, but that I had to come up with enough savings in 2016 to cover a membership for her as well. I looked up and down our credit card bill and saw an obvious way to save money–our health insurance bill.

I wasn’t going to not pay the thing, of course, but in my game of Congressional cost-saving I didn’t need to do such a thing. I merely called the insurance company, told them that my paychecks were now arriving on the 15th instead of the 1st and asked if I could have my monthly payments pushed back two weeks. After a few minutes on hold they agreed.

This meant that I would now have only 11 insurance payments in the next 12 months instead of 12, saving me $1500 in the next year. Mission accomplished.

As you might have surmised, my wife wasn’t amused, and as of now I’m still working out in my old gym, which doesn’t have a towel service, a juice bar, or even hot water and clean showers most of the time.

The ease with which I can manipulate such a fictional budget constraint when it comes to our own household account is no different from Congress.  Its PAYGO rules are incredibly malleable and the notion that it prevents Congress from spending recklessly is a foolish supposition.

The recent legislation that took a lot of “temporary” tax breaks–many of which are salutary–and made them permanent by merely waiving PAYGO for the bill–is a prime example of its inefficacy.

For the last decade, Congress has come up with increasingly convoluted and dubious paygos to cover the cost of extending these another year.  Paygo was the reason that they were never made permanent, a situation that made no economic sense at all.  It was only when Congress had exhausted all potential paygos that they gave up the ghost and twisted enough arms and legs to make them permanent.

The lesson for small-government advocates is that budget rules guarantee nothing.  A forthcoming Federal Reserve working paper looks at Colorado’s TABOR (which holds annual spending increases to the combined rate of inflation and population growth), widely hailed by conservatives as being the gold standard when it comes to governmental budget rules, and concludes that it did close to nothing to rein spending.  Colorado’s spending history looks no different than other, similar states.

Rules don’t work because nothing can prevent a future Congress from unmaking the rules set forth by the current Congress, there are myriad ways to game any such system, and–most importantly–the biggest ticking budgetary time bomb out there are the entitlement programs that seemingly escape scrutiny in either Congress, or at least the budget rules.  Entitlement spending will go up by over half a trillion dollars a year in the next five years and no mere budget rule can arrest this growth.

The answer is–and always will be–that to keep spending low we need help people understand the true cost of government largesse.  It’s a task that’s easier said than done. 

A new investigation by ABC7/WJLA reporter Chris Papst highlights data on the number of federal civilian workers earning more than $100,000 in annual wages. Using data from the Office of Personnel Management, Papst reports:

… last year the number of federal employees making more than $100,000 topped 500,000 for the first time. That’s 25 percent of the entire federal workforce of roughly 2.1 million. In the last 15 years, the number of federal workers making $100,000 increased from 66,116 to 509,025, a nearly 800 percent increase.

The chart below shows Papst’s data. The number of high-paid federal workers soared during the 2000s, but has grown more slowly in recent years. There is stark contrast between the George W. Bush years and the Barack Obama years. The number of federal workers earning more than $100,000 more than quadrupled under Bush (83,532 in 2001 to 389,828 in 2009), but has risen 31 percent since 2009 (to reach 509,025 by 2015).

What explains the spendthrift record of Bush and the more frugal record of Obama? Partly, Bush wanted large pay increases for the uniformed military, and to gain support he agreed to large increases for the civilian workforce. Partly, the new pay system in place for the Pentagon in the later Bush years inflated civilian Pentagon pay, as described by Dennis Cauchon. And partly, the Obama frugality was the result of a three-year partial pay freeze backed by the Republicans and approved by the president.

 

For more on federal pay, see DownsizingGovernment.org.

Data note: figure for 2002 in chart is estimated.

This week, the House Committee on Education and the Workforce held a hearing on “Expanding Education Opportunity through School Choice.” As I’ve written before, there are lots of great reasons to support school choice policies, but Congress should not create a national voucher program:

It is very likely that a federal voucher program would lead to increased federal regulation of private schools over time. Once private schools become dependent on federal money, the vast majority is likely to accept the new regulations rather than forgo the funding.

When a state adopts regulations that undermine its school choice program, it’s lamentable but at least the ill effects are localized. Other states are free to chart a different course. However, if the federal government regulates a national school choice program, there is no escape. Moreover, state governments are more responsive to citizens than the distant federal bureaucracy. Citizens have a better shot at blocking or reversing harmful regulations at the state and local level rather than the federal level.

That said, there’s at least one area where Congress both has the authority to act and can do a lot of good: Washington, D.C.

Despite spending close to $30,000 per pupil, D.C.’s public schools are ranked among the worst in the nation, and it’s the students from the poorest households who are assigned to the worst schools:

In nearly all D.C. neighborhoods where the median three-bedroom home costs $460,000 or less, the percentage of students at the zoned public school scoring proficient or advanced in reading was less than 45 percent. Children from families that could only afford homes under $300,000 are almost entirely assigned to the worst-performing schools in the District, in which math and reading proficiency rates are in the teens.

Ideally, Congress would enact a universal education savings account program, similar to the one that Sen. Ted Cruz is proposing. At the very least, Congress should work to reauthorize the D.C. Opportunity Scholarship Program (OSP) that is set to expire this year. At about $9,000 each, OSP vouchers cost taxpayers a fraction of what it costs per pupil at the public schools yet a random-assignment study found that OSP students were 21 percentage points more likely to graduate from high school than the control group. Moreover, researchers Patrick Wolf and Michael McShane calculated that the total benefits to the taxpayer are even greater than the immediate savings: 

Because a high-school diploma makes an individual less likely to commit crimes, it therefore decreases both the costs incurred by victims of crimes and those borne by the public in administering the justice system. Coupled with the increased tax revenue made on the increased income, this yields an extra benefit for society of over $87,000 per high-school graduate.

Multiplying the number of additional graduates by the value of a high-school diploma yields a total benefit of over $183 million. Over the time of our study, the OSP cost taxpayers $70 million, so dividing the benefits by the cost yields an overall benefit-to-cost ratio of 2.62, or $2.62 for every dollar that was spent.

Sadly, the OSP is threatened by the Obama administration’s war on school choice:

Since coming into power, the administration has actively opposed policies that empower low-income minorities to enroll their children in the schools of their choice. Obama’s proposed budgets repeatedly zeroed out funding for the Washington, D.C., Opportunity Scholarship Program… Last year, more than 95 percent of the D.C. voucher recipients were black or Hispanic.

The program survived only because of its champions in Congress, particularly former House speaker John Boehner, who ensured that the program would continue to receive funding. However, the program is set to expire later this year, and while the latest omnibus bill funds it for fiscal year 2016, it failed to reauthorize the program, spurring the Wall Street Journal in December to wonder “how Nancy Pelosi prevailed despite Republican majorities in both houses.”

Even though he was a scholarship student who now sends his own children to private school, it’s unlikely President Obama will sign any legislation creating new school choice options in his final year in office. If federal lawmakers are serious about expanding school choice, they should make reauthorizing the OSP a top priority.

To learn more about the impact of the D.C. Opportunity Scholarship Program and the Obama administration’s efforts to shut it down, watch this short documentary from Reason Magazine

Bryana Bible defaulted on her student loans. Upon her default, the guarantor of her loans, United Student Aid (USA) Funds, paid the default claim and took over the loan. Bible and USA Funds agreed to a $50-a-month repayment plan. Per the applicable Higher Education Act and Department of Education regulations, however, the agreement included a collection fee of 18.5% of the unpaid loan balance.

Bible balked at this fee and filed a class action against USA Funds, alleging that the company violated both the terms of the promissory note and the federal Racketeer Influenced Corrupt Organizations Act (!). The district court agreed with USA Funds because both the law and applicable regulations allowed for exactly that fee to be imposed. But when the case got to the appellate stage, it went off the rails.

The Seventh Circuit panel fractured, with one judge considering the regulatory text unambiguously permitting the fee, one judge considering the regulatory text unambiguously prohibiting the fee, and one just finding the regulations altogether ambiguous. The judges decided to resolve the case by deferring to the Department of Education’s opinion on the matter.

The Secretary of Education filed an amicus curiae brief, siding with Bible—which contradicted both the agency’s previous regulations and the statute’s express terms. Still, because the Secretary’s brief offered novel interpretative guidance, the court was forced to defer to the agency’s interpretation of its own guidance under a rule called Auer (or Seminole Rock)deference—a doctrine requiring courts to defer to agencies’ interpretation of their own guidance unless plainly erroneous or inconsistent with the regulation—instead of hazarding its own interpretation.

USA Funds has asked the Supreme Court to clean up this mess. Cato has joined the American Action Forum and Judicial Education Project on a brief urging the Court to take up the case and overrule both Auer v. Robbins (1997)and Bowles v. Seminole Rock & Sand Co. (1945).

Auer deference is simply outdated—and was superseded by statute from its inception. In 1946, one year after the Court decided Seminole Rock, Congress passed the Administrative Procedures Act (APA). The APA distinguished between legislative and interpretative rules. Legislative rules are subject to notice-and-comment practice but interpretative rules are not. Accordingly, judicial deference to a rule that results from an open notice-and-comment procedure may be justifiable, while deference to an interpretative rule—like the one at issue here—which is not subject to such a process, is inappropriate.

The text, history, and structure of the APA confirm this reading. Indeed, Auer deference subverts the APA’s purpose and immunizes the least politically accountable agency action from meaningful judicial review.

Moreover, even if the Court decided to apply Auer deference rather than overruling it, the Education Secretary’s guidance plainly fails the Auer test because it’s “plainly erroneous or inconsistent with the regulation.” The Department of Education in 1994 – under President Clinton – issued interpretative guidance stating that collection fees like the one here are not only permissible but “reasonable” under the very same regulation that it now interprets to bar them.

Taking a step back, Auer deference has become increasingly unpopular in legal circles because its invocation is now a too-frequent occurrence that shuts down jurisprudence. Justices Scalia, Thomas, and Alito have written several opinions in the last decade indicating that they wish to overturn Auer. USA Funds v. Bible presents a perfect case for the Court to do so, thus restoring a measure of reasonableness and accountability to the administrative state.

While Cato believes that same-sex couples ought to be able to get marriage licenses (if the state is involved in marriage in the first place), a commitment to equality under the law can’t justify the restriction of private parties’ constitutionally protected rights like freedom of speech or association.

Arlene’s Flowers, a flower shop in Richland, Washington, declined to provide the floral arrangements for the same-sex wedding of Robert Ingersoll and Curt Freed. Mr. Ingersoll was a long-time customer of Arlene’s Flowers and the shop’s owner Barronelle Stutzman considered him a friend. But when he asked her to use her artistic abilities to beautify his ceremony, Mrs. Stutzman felt that her Christian convictions compelled her to decline. She gently explained why she could not do what he asked, and Mr. Ingersoll seemed to understand.

Later, however, he and his now-husband, and ultimately the state of Washington, sued Mrs. Stutzman for violating the state’s laws prohibiting discrimination in public accommodations. The trial court ruled against Arlene’s Flowers and the case is now on appeal.

Cato has filed an amicus brief supporting Arlene’s Flowers and Mrs. Stutzman, urging Washington’s highest court to reverse the trial court’s decision. Although floristry may not initially appear to be speech to some, it’s a form of artistic expression that’s constitutionally protected. There are numerous floristry schools throughout the world that teach students how to express themselves through their work, and even the Arts Council of Great Britain has recognized the significance of the Royal Horticultural Society’s library, which documents the history, art, and writing of gardening.

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

The First Amendment “includes both the right to speak freely and the right to refrain from speaking at all” and the Supreme Court has never held that the compelled-speech doctrine is only applicable when an individual is forced to serve as a courier for the message of another (as in Wooley). Instead, the justices have said repeatedly that what the First Amendment protects is a “freedom of the individual mind,” which the government violates whenever it tells a person what she must or must not say.

Forcing a florist to create a unique piece of art violates that freedom of mind. Moreover, unlike true cases of public accommodation, there are abundant opportunities to choose other florists in the same area.

Finally, granting First Amendment protection to florists would not mean that public-accommodation laws could provide no protection to same-sex couples. The First Amendment protects expression, which should include floristry but would not include many other wedding-related businesses like caterers, hotels, and limousine drivers who are not in the business of creating artistic expression. These sorts of businesses may have other defenses available, constitutional or statutory, but that’s a different legal matter. 

The Washington Supreme Court (“SCOWA”) will hear oral argument in Arlene’s Flowers v. Washington in late winter or early spring. Whichever side loses there will likely petition the U.S. Supreme Court for cert – unless the state loses on a state-law ground, in which case there will likely be no basis for federal review.

On February 18th at noon, Cato will be hosting a book forum with Columbia University professor Michael Doyle on his new book The Question of Intervention: John Stuart Mill and the Responsibility to Protect.  The forum will include a presentation of Doyle’s conception of the key standards that should guide decisions to intervene militarily abroad, followed by responses from two distinguished discussants—Anne-Marie Slaughter (President and CEO of New America, and former director of the State Department Policy Planning Staff), and Christopher Preble (Executive Vice President for Defense and Foreign Policy Studies, Cato Institute). 

In light of the persistent calls for the United States to intervene in trouble spots around the world, this event will provide an illuminating discussion of the circumstances in which moral and security considerations supersede the norm of state sovereignty and justify foreign intervention.  To register for the event, click here.

After a short pause over the holidays, here is a new installment in the HP series on technological breakthroughs. This time, we look at improvements in agriculture, and the fight against schizophrenia, aging and diabetes.    New robotic farm will harvest 30,000 heads of lettuce daily.    The world’s first completely robotic farm is in the works in Japan. Developed by a company called Spread, the farm will be able to harvest crops at greater quantities than before. The indoor farm already uses LED light instead of natural sunlight and stores the growing plants on vertical racks, allowing crop growth to be more easily controlled and more productive. With full automation, the farm will increase its lettuce production to 30,000 heads per day. The state-of-the-art facility also will provide environmental benefits such as recycling used water and greatly reduced labor costs. Spread hopes to export its technology around the world in the near future.      A new study released by the Broad Institute of MIT has found new links between brain development during adolescence and schizophrenia. The researchers focused in on a gene called component 4 (C4), which is found in the immune system. They examined 100,000 human DNA samples from 30 countries. When C4 is prominently expressed in the genetic code, people have a higher risk of developing schizophrenia. Additional analyses of mice found that C4 plays a role in closing off synapses in the brain. This process emerges during adolescence and opens exciting new avenues for additional research.     A cure for aging?   A competition in Silicon Valley is underway inspiring innovators in medicine to discover a way to reduce the effects of aging. The Palo Alto Longevity Prize awards $1 million in prizes to researchers who can find a way to reduce the effects of aging and disease. But, the goal of the competition is not just to find a way to allow individuals to live longer, but also to raise their quality of life by reducing the impact of age-related diseases such as Alzheimer’s and cancer. The body has a natural state of rest, called homeostasis, which it returns to after recovering from sickness or trauma. In a person’s early life, it is relatively easy for their body to return back to that state after getting a cold or breaking a bone. But after the age of 40, it becomes much harder for that person’s body to get back in sync.   ‘Cure’ for Type 1 diabetes close.    Scientists at Harvard and MIT have found a way to provide long-term treatment for Type 1 diabetes. Tests in animals have been so far successful. Through embryonic stem-cell research, the team found a way for cells to detect glucose levels and adjust insulin levels accordingly throughout the body. The breakthrough would effectively eliminate reliance on insulin injections for several years at a time and reduce the risks that come from Type 1 if an injection is missed or a sudden spike in blood-sugar occurs. The disease afflicts millions of individuals across the world, including 400,000 in Britain alone, according to The Telegraph. Those with Type 1 diabetes must check their blood sugar levels and take insulin injections daily in order to live with the disease. 

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