Policy Institutes

FBI Seizes Antiquities First, Asks Questions Later

Cato Op-Eds - Thu, 04/03/2014 - 12:57

Walter Olson

An extraordinary and disturbing story just out from the Indianapolis Star/USA Today

WALDRON, Ind. — FBI agents Wednesday seized “thousands” of cultural artifacts, including American Indian items, from the private collection of a 91-year-old man who had acquired them over the past eight decades.

An FBI command vehicle and several tents were spotted at the property in rural Waldron, about 35 miles southeast of Indianapolis.

The Rush County man, Don Miller, has not been arrested or charged.

So if the owner hasn’t been arrested or charged, what’s the basis of the raid? 

Robert A. Jones, special agent in charge of the Indianapolis FBI office, would not say at a news conference specifically why the investigation was initiated, but he did say the FBI had information about Miller’s collection and acted on it by deploying its art crime team.

FBI agents are working with art experts and museum curators, and neither they nor Jones would describe a single artifact involved in the investigation, but it is a massive collection. Jones added that cataloging of all of the items found will take longer than “weeks or months.”…

The aim of the investigation is to determine what each artifact is, where it came from and how Miller obtained it, Jones said, to determine whether some of the items might be illegal to possess privately.

Jones acknowledged that Miller might have acquired some of the items before the passage of U.S. laws or treaties prohibited their sale or purchase.

Might be illegal. Or might have been acquired lawfully. They’re not saying! But to satisfy its curiosity the government gets to seize everything and sort through at its leisure over longer than “weeks or months.” 

It doesn’t sound as if the artifacts were in some sort of immediate danger:

In addition to American Indian objects, the collection includes items from China, Russia, Peru, Haiti, Australia and New Guinea, he said. …

The objects were not stored to museum standards, Jones said, but it was apparent Miller had made an effort to maintain them well.

I’ve written previously, elsewhere and in this space, about 

the rise of a new “antiquities law” in which museums and private collectors have come under legal pressures to hand over (“repatriate”) ancient artifacts and archaeological finds to governments, Indian tribes and other officially constituted bodies, even when those artifacts have been in legitimate collector hands for 100 or more years with no hint of force or fraud.

Further regulatory regimes covering exotic and endangered animal and plant material make it dangerous to let the feds anywhere near your high-end guitar or other wooden artifact, and will soon make it unlawful to sell or move across state lines your family’s antique ivory-keyed piano (more here).


Categories: Policy Institutes

Theory: The Supreme Court Could Apply the Terms of the Fourth Amendment in Fourth Amendment Cases

Cato Op-Eds - Thu, 04/03/2014 - 10:58

Jim Harper

The Supreme Court could apply the terms of the Fourth Amendment in Fourth Amendment cases.

I know. Weird idea, right?

But it’s an idea I’ve pushed in briefs to the Court over the last few years: in U.S. v. Jones (2011), Jardines v. Florida (2012), In re Electronic Privacy Information Center (2013), and most recently in Riley v. California (2014). We’ll file in U.S. v. Wurie next week.

The idea is interesting enough that Mason Clutter of the National Association of Criminal Defense Lawyers has paid me the compliment of discussing it in her new law review article, “Dogs, Drones, and Defendants: The Fourth Amendment in the Digital Age.”

Jim Harper, director of information policy studies at the Cato Institute and one of the authors of Cato’s amicus brief in Jardines, regularly makes the argument that “[a] ‘search’ occurs when government agents seek out that which is otherwise concealed from view, the opposite condition from what pertains when something is in ‘plain view.’ People maintain ‘privacy’ by keeping things out of others’ view, exercising control over personal information using physics and law.” The “Harper Theory” of search and seizure encourages judges, lawyers, and law enforcement officers to revert to the “plain meaning[]” of the Fourth Amendment’s use of “search” and “seizure.”

That’s right. The idea of using the words of the Fourth Amendment rather than stacks of confusing doctrine now has a name, and it’s the “Harper theory.” I guess I thought of it, so it’s named after me!

In seriousness, it is a challenge to recognize seizures and searches as such in “high-tech” contexts. Today’s problems with the Fourth Amendment—and the problem of doctrine obfuscating the text—began in 1929, when the Olmstead Court failed to recognize parallels between that era’s high-tech—telephonic communications—and written material sent through the mail.

But it is possible to recognize electronic and digital documents and communications as papers and effects. It is possible to recognize seizures when invasions of property rights occur in whatever form. And it is possible to recognize searches as efforts to discover information that is otherwise concealed from view. All this makes it possible to apply the words of the Fourth Amendment in Fourth Amendment cases.

I’m complimented if that’s called the “Harper theory.” I feel like I got it from Cardozo.

Categories: Policy Institutes

Chairman Ryan's Budget: A Mixed Bag of Reforms

Cato Op-Eds - Wed, 04/02/2014 - 11:38

Nicole Kaeding

House Budget Committee Chairman Paul Ryan released his budget proposal yesterday, his last as committee chairman. This budget differs greatly from the budget request submitted by President Obama last month. Ryan would “cut” federal spending by $5.1 trillion over the next 10 years and calls upon Congress to pass pro-growth tax reform. However, Ryan’s budget is still a mixed bag from a small-government perspective.

Positive Reforms in Ryan’s budget:

  • Medicaid Block Grants: Ryan suggests block granting Medicaid to institute some fiscal sanity to this ever-growing program. This reform would reduce state government incentives to overspend and would allow them greater flexibility to innovate and cut costs. Federal spending would be reduced by $732 billion compared to baseline by this simple reform.
  • SNAP Block Grants: The Supplemental Nutrition Assistance Program (“food stamps”) would also be block granted, saving $125 billion over 10 years compared to baseline. SNAP and Medicaid block grant reforms would copy the successful approach of welfare reforms in the 1990s.
  • Medicare Premium Support: Repeating a proposal from his last several budgets, Ryan suggests changing Medicare to a premium-support model. Rather than federal spending going to health care providers, it would be directed toward health care consumers. That would hopefully generate incentives to reduce costs and improve quality. It would also allow seniors to pick the health plan that most closely matches their needs.
  • Repeals ObamaCare Spending: Ryan’s budget repeals ObamaCare’s spending components. This is his largest reduction, which would save taxpayers $2 trillion over the next ten years.

Downsides to Ryan’s budget:

  • Social Security Reform: Ryan’s budget does not tackle Social Security reform, leaving almost one quarter of the federal budget unchanged. He calls on the president and Congress to submit recommendations to reform the program, but does not submit any suggestions of his own.
  • Higher Revenue Baseline: Chairman Ryan calls for pro-growth tax reform within his budget; however, he adopts the Congressional Budget Office’s current revenue baseline. This would keep the extra revenues generated from the numerous tax hikes enacted over the last several years.
  • Delayed Reforms: Perhaps due to political concerns, many of Ryan’s reforms would not start for several years. His SNAP block grant would not begin for five years, and his Medicare premium support model would not start until 2024.
  • Keeps Higher Spending: In December, Ryan and Senate Budget Chairman Patty Murray agreed to increase discretionary spending levels for fiscal year 2014 and fiscal year 2015. This partly gutted the bipartisan Budget Control Act from 2011. Ryan’s budget retains the higher spending levels.

In sum, Ryan’s budget would not solve the government’s overspending problem. But it would be a good first step to reforming the federal behemoth.

Categories: Policy Institutes

Another Campaign Restriction Falls Because First Amendment Strongly Protects Political Speech

Cato Op-Eds - Wed, 04/02/2014 - 11:05

Ilya Shapiro

Despite the 5-4 split among the justices, McCutcheon is an easy case if you apply well-settled law: Restrictions on the total amount an individual may donate to candidates and party committees—as opposed to how much he can donate to any one candidate—violate the First Amendment because they do not prevent quid pro quo corruption or the appearance thereof. That corruption-prevention rationale is the only government interest that the Supreme Court accepts as a valid one for restricting political-campaign activities. As Chief Justice Roberts wrote for the majority (and it is a majority because Justice Thomas concurs in the judgment): “Money in politics may at times seem repugnant to some, but so too does much of what the First Amendment vigorously protects. If the First Amendment protects flag burning, funeral protests, and Nazi parades—despite the profound offense such spectacles cause—it surely protects political campaign speech despite popular opposition.”

With Justice Thomas, however, I would go beyond that simple point and overrule Buckley v. Valeo (1976) altogether because “[c]ontributions and expenditures are simply ‘two sides of the same First Amendment coin’” and the Court’s “efforts to distinguish the two have produced mere ‘word games’ rather than any cognizable principle of constitutional law” (quoting Chief Justice Burger’s partial dissent in Buckley). Buckley rewrote the speech-restrictive post-Watergate campaign-finance law into something no Congress would’ve passed, also inventing legal standards such that one type of political speech has greater First Amendment protection than another. Nearly 20 years later, the Supreme Court rewrote another congressional attempt (McCain-Feingold) to “reform” the rules by which people run for office, shying away from striking down Buckley and producing a convoluted mish-mash opinion that serves nobody’s interest. Enough! The drip-drip of campaign-finance rulings over the last decade has shown, existing campaign-finance law is as unworkable as it is unconstitutional.

As Cato argued in its amicus brief, in a truly free society, people should be able to give whatever they want to whomever they choose, including candidates for public office. The Supreme Court today correctly struck down the biennial campaign contribution limits and gave those who contribute money to candidates and parties as much freedom as those who spend independently to promote campaigns and causes. But it should have gone further.

Categories: Policy Institutes

Another Blow to Campaign Finance Regulation

Cato Op-Eds - Wed, 04/02/2014 - 10:44

Roger Pilon

A quick heads-up: The Supreme Court has just handed down its decision in the much-anticipated campaign finance case of McCutcheon v. Federal Election Commission, and free speech won. See Cato’s brief here. Ilya will write more fully about the decision as soon as he’s had a chance to digest it. In the meantime, here’s the opening paragraph from the syllabus:

The right to participate in democracy through political contributions is protected by the First Amendment, but that right is not absolute. Congress may regulate campaign contributions to protect against corruption or the appearance of corruption. See, e.g., Buckley v. Valeo, 424 U.S. 1, 26-27. It may not, however, regulate contributions simply to reduce the amount of money in politics, or to restrict political participation of some in order to enhance the relative influence of others. See, e.g., Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 564 U.S. ___, ___.

In a word, Buckley was not overruled, as we had hoped, although Justice Thomas would have done so (in his concurring opinion). And the usual dissenters dissented. But chalk this up as one more blow against the campaign finance regulators, from whom we will soon hear that the sky is falling, again.

Categories: Policy Institutes

Under the Hood of the House Intel Committe's NSA Reform Bill

Cato Op-Eds - Tue, 04/01/2014 - 17:27

Julian Sanchez

This post was originally published on March 31, 2014 on Just Security

While details on the president’s proposal to end NSA bulk collection of telephony records remain sparse, we do now have an actual piece of legislation to look at from the House Permanent Select Committee on Intelligence—one that tracks the broad outlines of the White House plan even as it differs in several critical details. I’ve already done a quick take in broad brushstrokes over at The Daily Beast; here I want to get into the weeds a bit.

The HPSCI bill actually covers quite a bit more than just NSA bulk collection—there are a few transparency measures and a provision for the FISA Court to appoint amici curiae, which mostly seems like an attempt to preempt legislation creating a more robust FISC “advocate”—but in this post I want to focus on the meat: The prohibition (or so it seems) on bulk collection, and the new authority in §503 designed to replace the current bulk telephony program.

(A) The Bulk Prohibition

The first thing to note is that the (apparent) prohibition on bulk collection is structured somewhat oddly, even taking into account the framers apparent desire to limit that prohibition to certain subcategories of records. The USA Freedom Act, for instance, does this by means of a fairly straightforward modification: It limits the scope of §215 (as well as FISA pen/trap orders and National Security letters) to records that are both relevant to an investigation and pertain to a suspected foreign agent or their direct contacts, using language the Senate had unanimously approved back in 2005. The HPSCI bill is rather bit more convoluted.

First, Section 2 of the bill completely excludes “call detail records” from the scope of §215—and only from §215. The bill defines “call detail records” as “communications routing information,” which sounds awfully general, but both the description as “call detail records” and the series of enumerated telephony-specific data types that follow strongly suggest it’s really limited to telephonic communications routing information. There’s some wiggle room here since the general term precedes the more specific enumeration, but especially in light of the subsequent separate prohibition on acquisition of “electronic communications” records, defined to exclude telephonic communications, I’d be surprised if the FISC didn’t read this narrowly. Though the “including” that precedes the enumerated data types indicates that it’s not exhaustive, the omission of location-associated terms like “cell site and sector” is conspicuous. HPSCI staff are apparently assuring reporters that location data is implicitly included, but we do know that law enforcement routinely obtain bulk location data in the form of “tower dumps,” or records of all the phones registered with a specific cell tower at a particular time. Since phones routinely do this even when they’re not placing a call—which is to say, when no particular “communication” is being “routed”—it’s at least an open question whether this provision forbids bulk collection of tower location data.

Then Section 3, “notwithstanding any other provision of law,” prohibits the government from acquiring “records of any electronic communication without the use of specific identifiers or selection terms” under any provision of FISA. Contrast the White House proposal, which from what we’ve heard so far would not impose any limits on non-telephony collection. This section incorporates the Electronic Communications Privacy Act definition of “electronic communications,” which as noted above, means it excludes records of phone calls or other “aural transfer” (e.g. VoIP), which fall under the mutually exclusive category of “wire communications.” Later in §503, the bill explicitly refers to both “electronic” and “wire” communications records, suggesting that this is very much intentional. This provision, then, would not appear to preclude bulk collection of telephony metadata (“call detail records”) under FISA authorities other than §215. Nor, of course, does it apply to National Security Letters, which are issued by the heads of FBI field offices without judicial pre-approval, since those are not technically part of FISA, despite generally being used in the same investigations.

Also left ambiguous is precisely what “specific identifiers or selection terms” means. Intuitively it would refer to things like e-mail addresses and account logins, but documents leaked by Edward Snowden suggest that in some contexts the government has used much broader “selectors,” such as ranges of Internet Protocol addresses. If something that broad can count as a “specific identifier,” then at the outer limits the distinction between “targeted” and “bulk” collection becomes somewhat semantic.

Finally, note that the prohibition here only applies to the “acquisition” of a “record.” Crucially, collection of information live from the wire pursuant to 50 USC §1842, the provision that authorized NSA’s now-defunct bulk Internet metadata program, probably does not count as the “acquisition of a record,” even though, intuitively, it is a process by which the government ends up with records of communications. A former intelligence official I informally bounced this language off agreed that the use of this pen register/trap-and-trace provision would not fall under this prohibition, because the information obtained isn’t acquired in the form of a record maintained by a communications provider: Rather, the government is acquiring data in transit and creating its own record rather than “acquiring” one.

The last prohibition, similarly covering all FISA authorities, bars acquisition without specific identifiers of several other categories of sensitive records, specifically:

library circulation records, library patron lists, book sales records, book customer lists, firearm sales records, tax return records, educational records, or medical records containing information that would identify a person

This is the same list of sensitive records currently requiring explicit approval by Attorney General before they can be acquired under §215. The final qualifier—”containing information that would identify a person”—is likely to be read as applying to all the preceding types of information. In addition to the other loopholes and ambiguities, this might be read to allow bulk acquisition of “anonymized” records for various data mining purposes. Anonymization, however, should not obviate privacy concerns: As Paul Ohm has documented, any sufficiently rich and informative “anonymous” data set can be re-identified given enough other data sets—which the NSA has in abundance. And of course, many types of records not specifically named—credit card records, for instance—are not included in any of these prohibitions (or pseudo-prohibitions) on bulk collection.

(B) The New Authority

In order to preserve the capabilities of the current NSA telephony program, the HPSCI bill created a new and distinct authority, §503, that authorizes rapid collection of both telephony and electronic communications metadata under a process superficially somewhat similar to §702 of the FISA Amendments Act. The Attorney General and Director of National Intelligence jointly issue broad “authorizations” for the collection of records pertaining to suspected agents of foreign powers and their direct contacts or associates. (This effectively gives you two “hops” from a “seed” number: The direct contact is the first hop and their records contain identifiers for the second hop.) Records must not include communications content or other personally identifying information, and procedures must be developed to protect privacy and civil liberties. The FISC signs off on general procedures for establishing “reasonable articulable suspicion” of the appropriate foreign power link in the selectors that providers are directed to provide records on. The government then issues directives to telecom providers requiring both historical and prospective, ongoing production of records pertaining to specific identifiers. The FISC does not pre-approve these directives and selectors, but must be “promptly” provided with each directive and a record of the basis for thinking it meets the criteria—at which point the court can terminate acquisition if it believes the criteria are not met, though no further affirmative approval is required.

While it may not be obvious, probably the critical thing here is actually the provision requiring the providers to produce “records, whether existing or created in the future, in the format specified by the Government” coupled with one providing for the providers to be compensated and receive any necessary technical assistance from the government. For domestic phone numbers, after all, FISA pen register authority already covers this type of collection, and many providers should be able to do a historical search of their records for foreign numbers. But the CALEA J-standard spelling out the surveillance capabilities that telecoms are required to have seems to assume that “pen registers” are always and only applied to a specific “facility” corresponding to a customer phone line. The trick, in other words, was rapidly getting the carriers to produce records of calls to or from specific foreign numbers—and to produce them in a format that made it easy to cross-reference records across carriers. In other words, this provision lets the government demand that the carriers create records in the form they need, even if the company doesn’t maintain records of that type for its own business purposes, with government money and tech support to help them do it.

The HPSCI authority differs from the §215 statute, the current telephony program, and the president’s proposal in several salient ways.

The very first words of §503 capture one difference: “notwithstanding any other law.” While ultimately the FISC has apparently not been much deterred by the absence of a “notwithstanding” provision in §215, it does at least in principle mean that §215 does not automatically trump other statutory protections—and as a rule one wants these “notwithstanding” provisions used sparingly in broad collection authorities. Without access to the FISC’s other §215 opinions, it is hard to say what effect—if any—this addition will have.

Unlike the current telephony program (and apparently the president’s proposal), this authority is not restricted to identifiers tied to any particular terrorist group. Rather, a link (based on reasonable suspicion) to any foreign power or agent of a foreign power will suffice. The “reasonable suspicion” nexus is, obviously, narrower than the requirement of “relevance” required by §215 as currently interpreted by the FISC—and indeed, narrower even than the common pre-Snowden understanding of §215.

What is entirely eliminated required link to “an investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.” Given the breadth of FBI “enterprise investigations,” frequently invoked by defenders of the FISC’s strained “relevance” ruling, one would not think that requirement would prove unduly burdensome in practice. Removing it, however, does a couple things: First, it eliminates whatever check might have been provided by the predication requirements for opening an investigation, and unmoors the acquisition authority from any particular investigative target. In at least some cases, this specific investigative link has tipped off the FISC that a record request might run afoul of the proscription on targeting Americans (presumably journalists) based solely on First Amendment protected conduct. If the FISC is only evaluating the foreign power link, that warning flag might not go up. Second—and perhaps more importantly—it would appear to eliminate the requirement that records pertaining to U.S. persons be acquired only for counterterror or counterespionage investigations, rather than for “foreign intelligence purposes” generally, which might include almost any effort to understand the actions and intentions of foreign entities. In practice, of course, these have not been effective limits on the acquisition of records, but the FISC has at least tried to embody these limits in back-end querying and usage limitations.

The most obvious difference from what the president has proposed—beyond the application to non-telephony communications records—is of course the combination of ex-ante FISC approval of programmatic procedures coupled with ex-post review of specific directives, instead of the pre-approval of specific selector queries that the president has endorsed. I’m not quite as persuaded as some of my colleagues in the civil liberties community that this should be an absolute deal-breaker this specific instance—provided that the FISC also reviews some basic information about the initial fruits of a query, which the HPSCI bill does not require or provide for.

I say that because in this case, each directive will yield the records of dozens or hundreds of contacts for every selector explicitly specified. Moreover, the FISC will rarely have much ex-ante basis for second guessing the government’s “reasonable suspicion” determinations. Suppose instead the FISC were to review directives relatively quickly after issuance along with a very rough statistical precis of the information obtained: How many unique contacts are identified at the first and second hop? How many of these belong to United States persons, to the extent this can be easily determined? While permitting ex-post approval does increase the risk that some requests will “slip through the cracks,” or that some information will be obtained on an inadequate basis, a more robust review provision than the HPSCI bill provides might at least give the FISC some basis for catching dubious determinations of suspicion. If a particular seed selector is pulling in an unusually large number of first-hop contacts, or if the purported cell phone of a Pashtun goatherd is primarily calling numbers in the 202 area code, the FISC might at least be motivated to ask for some supporting documentation. That’s not to say the trade is necessarily worth making—and again, what I’ve described is emphatically not provided for in the HPSCI bill—but it’s at least worth considering.

(C) The Bottom Line

Let’s sum up. First, the HPSCI bill’s seemingly broad prohibition on bulk collection turns out to be riddled with ambiguities and potential loopholes. The fuzzy definition of “specific identifiers” leaves the door open to collection that’s extremely broad even if not completely indiscriminate. Because the provision dealing with “call detail records” applies only to §215 and the provision dealing with “electronic communications records” excludes telephony records, the law does not bar the bulk collection of telephony records under FISA provisions other than §215. The prohibition on non-specific acquisition of other communications “records” probably does not preclude bulk collection under the FISA pen register provision that was previously used for the NSA Internet metadata dragnet. And, of course, none of these prohibitions apply to National Security Letters. If the government wanted to keep collecting metadata in bulk, it would have plenty of ways to do so within the parameters of this statute given a modicum of creative lawyering—at least if the FISC were to continue being as accommodating as it has been in the past.

Second, something like the novel authority created here may well be necessary to enable fast and flexible acquisition of targeted records without dragnet collection. However, once we get down to details—and even leaving aside the question of ex-post versus ex-ante judicial approval—this authority is in some respects broader than either the current §215 telephony program, the president’s proposal, or the pre-Snowden understanding of the FISA business records authority. Critically, it eliminates the required link to a predicated investigation—which, in the case of U.S. persons, must be for counterterror or counterespionage purposes.

While this would at least presumably put an end to the current dragnet collection of telephony metadata, it is not at all clear how seriously it would constrain the government’s bulk collection of records on the whole. In some respects, there is at least a colorable argument that the new authority could expand the scope of government collection in some respects. Given the government’s track record on this front, it is probably not excessively paranoid to suspect that any such loopholes and ambiguities are likely to be exploited.

Categories: Policy Institutes

Chairman Ryan’s Supposed Budget Slashing

Cato Op-Eds - Tue, 04/01/2014 - 15:28

Nicole Kaeding

Chairman Paul Ryan’s budget released today “cuts spending by $5.1 trillion over the next ten years,” the document claims. Similarly, the headline from the Washington Post says that Ryan’s budget “would slash $5 trillion over next decade.”

Yet looking at the details of Ryan’s proposal, the federal government will spend $1.5 trillion more in 2024 than it is expected to spend in 2014.

How can spending both be “slashed” and increased by $1.5 trillion? It’s because of the bizarre way that Washington discusses spending, which is known as baseline budgeting.

Here is a graph of Ryan’s proposed federal outlays.


The graph shows that under Ryan’s budget, federal spending increases every year.

But here is another graph showing Ryan’s spending compared to the Congressional Budget Office (CBO) baseline projection of spending made in February.

Notice the gap? That’s the $5 trillion that is “slashed” from the federal budget.

In Washington, all spending proposals are compared to the CBO’s baseline projections. The CBO releases these projections a couple times a year, which are based on their estimates of current federal law. Every proposal is then compared to this baseline. Inside-Washington discussions of spending cuts or increases are relative to CBO’s figures.

But this is a very different way of thinking about budgeting than used by families, who don’t assume that their income will go up automatically every year. Families prioritize, and they cut back when they need to make the books balance. Sadly, few proposals in Congress make tough trade-offs and cut actual levels of spending.

Chairman Ryan’s budget would spend $42.6 trillion over the next ten years. Opponents will say that Ryan’s budget slashes federal spending, while supporters will say that it includes large budgetary savings. The reality is that Ryan’s budget would increase spending at an annual average rate of 3.5 percent, or from $3.54 trillion in 2014 to $5.0 trillion in 2024. Only in Washington would that be considered substantial restraint, let alone slashing.

Categories: Policy Institutes

Does Strong IP Protection Create Innovation and Jobs?

Cato Op-Eds - Tue, 04/01/2014 - 12:12

Simon Lester

The story that many people tell is that intellectual property protection creates innovation, and here in the U.S. our IP-based industries lead to many high-paying, export-oriented jobs. So, we need strong IP protection, and so does the rest of the world, and thus we push other countries to sign on to strong IP protection through trade negotiations.

But is this story true? Does strong IP protection really create innovation and jobs?

First up, jobs.  Here’s the U.S. Chamber of Commerce:

IP is a clear indicator of the ingenuity of a country’s economy and the U.S. depends heavily on our IP for economic success; and IP accounts for 40 million U.S. jobs, 2/3 of all exports and $5.06 trillion in value.

The implication of this statement seems to be that, without our current level of IP protection, the U.S. would have 40 million fewer jobs, and only 1/3 as many exports.  But that can’t be right, can it?  If we had some lower level of IP protection, say, shorter copyright terms, perhaps fewer people would work in copyright-related industries.  But they wouldn’t just starve.  They would find something else to do.  If government policy didn’t skew the incentives in a way that moves people into copyright-related jobs, they would find something just as productive, if not more so, to do.  So, it may be true that 40 million people work in IP-related jobs.  But IP doesn’t create the jobs; government policy pushes people towards these jobs, away from other jobs.

But what about innovation?  Would there be any innovation at all without our existing levels of IP protection?  Here’s Rebecca Strauss of CFR:

no one has a good grasp of whether the U.S. patent system is doing what it was intended to do—promote innovation.

… in practice, economists have not yet come to any empirically robust conclusions about whether this theory pans out or how well the U.S. patent system is performing.

Even the most elemental components of patents have no clear economic analysis backing them up, including how long patent rights should last or whether the patent right should be granted to whoever files the application first versus whoever invents it first. 

In the absence of definitive economic analysis, the trend in U.S. patent reform over the past thirty years has been to strengthen the status quo system, with powerful corporate lobbies driving the policy discussion.

This means that the deal has generally gotten sweeter for patent holders. Congress has extended the lifeterm of patents, and most drastically for copyright, which lasts nearly four times longer today than in 1800. Curiously, whenever Disney’s Mickey Mouse copyright is due to expire, the official copyright lifeterm is lengthened. 

Does strong IP protection lead to more innovation?  The answer seems to be: We don’t know!

And I don’t know either.  My point is not that we should adopt policy X or policy Y with regard to IP protection.  Rather, what I think needs to happen is that we have an internal debate over appropriate levels of IP protection.  U.S. government folks say they want a debate.  But I don’t see it happening.  What I see is the U.S. pushing our existing policies on others through trade agreements, even though it’s not at all clear that these policies are good ones.

Categories: Policy Institutes

Chamber of Commerce and Business Roundtable: Borg Enablers

Cato Op-Eds - Tue, 04/01/2014 - 12:05

Neal McCluskey

Remember the Borg? You know, the Star Trek cyborgs who would encounter a ship, tell its occupants “resistance is futile,” then turn them all into Borg? Of course the Enterprise always resisted, and always survived. But what if Captain Picard had instead ordered, “Surrender. Then they’ll leave us alone.”

The crew response to that would certainly have been, “ol’ Jean-Luc is losing it!” At least, it would have been for the few seconds before everyone was converted into mindless drones. Yet that is just the sort of order a group calling itself the “Higher State Standards Partnership” is trying to issue to conservatives and libertarians when it comes to the Common Core. Yesterday, the Partnership – a front for the U.S. Chamber of Commerce and Business Roundtable – wrote in the Daily Caller that opponents of the Core should stop resisting if they want to keep schools from being assimilated by the federal government.

You read that right: After blaming the Obama administration for using the Race to the Top to meddle “in a clearly state-led, locally controlled education initiative,” the Partnership counseled Core opponents to end their resistance. Defeating the Core, they wrote, “would only bolster the hand of the Administration and invite federal control into our schools.”

That is absurd. But perhaps it’s easier to write if you utterly ignore basic facts about the effect of federal force, and the coercive role Core supporters intended for the feds to have all along. The Partnership blames the Obama administration for overstepping while neglecting to mention that in the 2008 report Benchmarking for Success the Core’s creators said Washington’s job was to incentivize standards adoption. The creators later repeated the call on the Common Core State Standards Initiative website. And Core supporters quite likely lobbied the administration to make adopting the Core a de facto RTTT requirement.

Sadly, the Partnership chose not only to ignore that Core supporters absolutely called for federal coercion, but it offered a laughable fiction that what federal influence there was basically meant nothing:

Despite the Administration’s attempt to capitalize on a state and local effort, it does not change the facts; a diverse group of local stakeholders with an interest in seeing children succeed – parents, teachers, education experts, policymakers and business people – came together in each of the states to debate and discuss how the standards would make sense for their classrooms. They decided locally whether higher standards made sense for their students. The federal government did not play a role – and had no place – in making that decision.

To continue the Trek theme, what planet do these people come from? First off, none of the decision to follow the Core is local: Even if you believe there was no federal coercion, it’s still states – not districts – that select standards. And there absolutely was federal force, both through Race to the Top and the offer of waivers out of the hated No Child Left Behind Act if states, among other things, adopted federally approved “college- and career-ready standards.” And don’t pretend there was much “democratic” debate about Core implementation. Indeed, if states wanted to compete for RTTT money they had to promise to adopt the Core before the final version had even been published!

If the Partnership really wants states and districts to avoid federal control, why deny the truth about federal power? Why act like states and districts are still in control of the ship when the Borg controls the engine room, the communications system, life support, etc? Are states and districts really in charge just because they’re on the bridge pressing inert buttons and barking meaningless orders?  Of course not. Which makes it hard not to conclude: The Partnership’s concern isn’t staving off federal control. It’s ending not-so-futile resistance to national standardization.

Categories: Policy Institutes

A Shocking Police Encounter

Cato Op-Eds - Tue, 04/01/2014 - 10:32

Caleb O. Brown

Our friends at Reason have acquired the video of an unbelievable roadside police stop near the U.S. border. Words don’t do it justice.

You Won’t Believe This Border Patrol Checkpoint Refusal Video

Please take a moment to look at Cato’s National Police Misconduct Reporting Proejct and Cato’s other work on criminal justice.

Categories: Policy Institutes

The Whistleblower Versus Robert Mugabe and the United Nations

Cato Op-Eds - Tue, 04/01/2014 - 10:18

Doug Bandow

Zimbabwe’s Robert Mugabe is a corrupt authoritarian.  The United Nations is a wasteful, inefficient organization that tolerates corrupt authoritarians.  Unfortunately, the two don’t make beautiful music together.

Not everyone at the UN is corrupt.  One hero is Georges Tadonki, a Cameroonian who for a time headed the UN Office for the Coordination of Humanitarian Affairs (OCHA) in Zimbabwe.  The others are three judges in a United Nations Dispute Tribunal who last year ruled for Tadonki in a suit against the international organization.

Soon we will find if members of a UN appeals panel possess equal courage.  That ruling is expected soon with rumors circulating that these judges might reverse course and absolve the organization of misconduct.

In 2008 President Robert Mugabe, who took power in 1980, and ZANU-PF, the ruling party, used violent intimidation to preserve their control.  At the time Tadonki had been on station for six years and predicted epidemics of both cholera and violence. 

Unfortunately, UN country chief Agostinho Zacarias dismissed Tadonki’s warnings.  By the end of the year 100,000 people had been infected with cholera and thousands had died.  During the election campaigns hundreds also had been killed by government thugs, who succeeded in derailing democracy. 

Naturally, no good deed went unpunished.  After extended discord between the two UN officials, Tadonki was fired in January 2009.  There was little doubt that the action was retaliation for being right and embarrassing Zacarias—who now serves the UN in South Africa. 

The controversy demonstrates that something is very wrong with the UN system.  Tadonki decided to fight, though he had to ask the international law firm Amsterdam & Peroff to handle the litigation on a pro bono basis.  Last year the UN Dispute Tribunal based in Kenya heard his case and Judges Vinod Boolell, Nkemdilim Izuako, and Goolam Merran issued their 104-page judgment. 

They concluded “that the Applicant was not, at all material times, treated fairly and in accordance with due process, equity and the core values of the Charter of the Organization” and that OCHA management ignored the UN’s “humanitarian values.”  The tribunal ordered the UN to apologize for its misbehavior, investigate the mistreatment of Tadonki, hold his superiors accountable for their misconduct, cover Tadonki’s litigation costs, pay past salary through the judgment date, and provide $50,000 in “moral damages for the extreme emotional distress and physical harm suffered by the Applicant.”

Explained the judges:  “This case has brought to light not only managerial ineptitude and highhanded conduct but also bad faith from the top management of OCHA.  This mismanagement and bad faith were compounded by a sheer sense of injustice against the applicant who was hounded right from the beginning.” 

Perhaps even worse was the larger environment in which this misconduct occurred.  Observed the tribunal:  “There was a humanitarian drama unfolding and people were dying.  Part of the population had been abandoned and subjected to repression.  The issue between Tadonki and Zacarias was to what extent these humanitarian concerns should be exposed and addressed and the risk that there was of infuriating the Mugabe government.”

The tribunal’s conclusion is devastating:  “the political agenda that RC/HC Zacarias was engaged in with the Government of Zimbabwe far outweighed any humanitarian concerns that OCHA may have had.”  Of course, “The UN and Zacarias’s chief responsibility should have been to Zimbabwe’s embattled civilian population.  Instead, both failed to live up to their obligations—even as they were conspiring against someone who had exceeded them.”

But as I note in my new American Spectator online article:  “the final resolution depends on the appellate process, which is approaching its decision.  Hopefully Georges Tadonki and the three tribunal judges are not the only UN officials willing to do what’s right, irrespective of cost.”

Categories: Policy Institutes

WTO Indictment of Chinese Export Restrictions Unearths U.S. Hypocrisy

Cato Op-Eds - Tue, 04/01/2014 - 10:06

Daniel J. Ikenson

Last week a WTO dispute settlement panel ruled that certain Chinese restrictions on exports of “rare earth” minerals are inconsistent with China’s WTO obligations and recommended that the PRC government bring its policies into compliance with the rules. The decision was hardly surprising, as export restrictions are prohibited under the WTO agreements – except under certain limited circumstances, which were not demonstrated to exist.

Formal complaints about these export restrictions were lodged in the WTO by the United States, the European Union, and Japan, whose manufacturers require rare earth minerals for production of a variety of high tech products, including flat-screen televisions, smart phones, and hybrid automobile batteries. By restricting exports, the complainants alleged, China’s actions reduce supply and raise prices abroad, putting foreign downstream manufacturers at a disadvantage vis-à-vis China’s domestic rare earth-using companies, who enjoy the effective subsidies of greater supply and lower input prices.

The WTO decision was lauded across Washington, but more for its dig on China than for its basis in principle or sound economics. Emblematic of official sentiment was the following statement from arch-import-foe-temporarily-turned-globalization-advocate, House Ways and Means Committee Ranking Member Sander Levin (D-MI):

Through the aggressive efforts of the Obama Administration, the WTO has struck down China’s efforts to block our companies from having access to key inputs.  Our high-tech industries, from smartphones to medical equipment to wind turbines, depend on access to these rare earths and other chemicals. Holding China accountable, and enforcing the rules of international trade are vital to U.S. businesses and workers and key to trade expansion efforts (emphasis added).

You’ll have to forgive my skepticism that Congressman Levin is genuinely concerned about U.S. companies having access to key imported inputs. As a dogged supporter of the U.S. antidumping law, Rep. Levin has devoted years of energy to the task of ensuring precisely that U.S. companies be cut off from foreign suppliers. Strengthening the antidumping law so that domestic upstream producers have an easier time securing restrictions on their U.S. customers’ purchasing options has been one of Levin’s top priorities.

During the last decade (2000-2009), four out of every five antidumping measures (79.4%) were imposed on imported intermediate goods.  Over the past 12 months, all of the 15 U.S. antidumping investigations initiated concerned imported intermediate goods, such as ferrosilicon, chlorinated isocyanurates, calcium hypochlorite, and sugar.  Access to each of these products – just like access to rare earth minerals – is essential to the competitiveness and viability of U.S. companies.  Each of these inputs is the lifeblood of numerous downstream industries.  And don’t think consumers don’t feel the pinch.  Keep an eye on your grocery bill over the next year, as higher sugar prices make their way through the food processing, confectionary, and bakery industries and into your pantries.

Yet, under the antidumping law, these American import-consuming companies never get their days in court.  Whether antidumping duties (import taxes) are imposed on these crucial inputs is decided entirely without their input and without any consideration of the impact on their bottom lines.  By statute, it is only the material condition of the domestic supplier of that input that is taken into consideration.  This is ludicrous.  This is the status quo. Read about it here.

Meanwhile, the hypocrisy doesn’t end there.  While our policymakers impugn China for restricting exports of its mineral bounty and decry the impact on downstream U.S. industries, the United States engages in the same kind of protectionism, restricting exports of oil and natural gas.  According to separate analyses by Scott Lincicome and Jim Bacchus, those restrictions likely would be found to violate U.S. WTO commitments just as China’s raw materials export ban (a previous case) and rare earths restrictions were found to be out of compliance.

There are reasons to celebrate the WTO’s decision against Chinese export restrictions.  There are also lessons to learn from it.  A period of introspection and adjustment wouldn’t hurt.

Categories: Policy Institutes

Great Moments in Academic Citation

Cato Op-Eds - Tue, 04/01/2014 - 08:45

Justin Logan

Last year,* Twitter was, well, atwitter with news of a report from the UN Special Rapporteur on Extrajudicial, Summary, and Arbitrary Executions (who knew there was one of those?) calling for a moratorium on “lethal autonomous robots.” Readers who have seen Terminator 2 will know the potential for trouble in such platforms, but the UN came online with some concerns of its own.

The real utility of the UN’s call for a moratorium, however, is to allow me to start a competition: “great moments in academic citation.” What does academic citation have to do with autonomous robot armies, you ask? Simple. One of the entrants has to do with exactly that subject.

I think all scholars and policy wonks have occasionally come across a brilliantly witty turn of phrase buried in a footnote of an otherwise dry academic treatise. Three stuck in my mind enough that I kept them written down.

Sadly, though, I only have three entries worthy of competing against one another, and all are from my narrow reading in security studies. Which means I need your help: If you have another entrant, from a bona fide, published scholarly work (or approved dissertation) in whatever field but on this level of wit, email me to enter it in the competition. The prize is nothing. With that…

Great Moments in Academic Citation Competition, 2014


Text: “[C]apital and labor are imperfect replacements and show diminishing returns; given a hundred tanks and ten soldiers, adding another tank will not produce as much military power as another soldier. Until it is possible to build a military made entirely of robots, defense requires some of both factors.”

Footnote: “Even then this is likely to be prohibitively expensive and may very well result in a war between humans and machines programmed to enslave us all, a public bad.”

Jonathan Caverley, Death and Taxes: Sources of Democratic Military Aggression, PhD diss. University of Chicago, 2008.



Text: “[M]ultiple qualifying parameters need to be taken into account when considering population as an indicator of how large a military can be…Fourth is, for lack of a better phrase, the willingness to serve (and the willingness to learn how to fight)…”

Footnote: “One of the themes that emerges by comparing the military effectiveness of one nation’s forces to another’s is that operationally successful nations (e.g. Germany) have soldiers who value the ability to fight intelligently, while the less successful nations (e.g. Italy) seem to have great difficulty in learning the operational art of war. See Allen R. Millett and Williamson Murray, eds., Military Effectiveness, Vol. 3: The Second World War (New York: Cambridge University Press, 2010).”

Martin C. Libicki, Howard J. Shatz, and Julie E. Taylor, “Global Demographic Change and Its Implications for Military Power,” RAND Corporation Monograph 1091.


CANDIDATE THREE (cheating because most of the humor is in the text)

Text: “Why would American leaders in a diplomatic confrontation with Chinese leaders rely on an audience cost strategy? American leaders must believe Chinese leaders believe that American leaders believe that American citizens believe that Chinese leaders believe that failure to keep a commitment results in a reputation for irresolution, so Americans must boot their leaders from office, and that is why Chinese leaders will view audience costs as decisive evidence that a commitment is credible. An argument that depends on a belief about a belief about a belief about a belief is unbelievable. Perhaps no one uses audience cost strategies because everyone knows that everyone knows that no one can keep the argument straight….”

Footnote (cheating here, too; footnote comes a bit later than above text but is germane): “One realizes recursion’s comedic potential when a television character, Phoebe Buffay, matches the levels of British deception: “They don’t know that we know they know we know.” “The One Where Everybody Finds Out,” Friends, NBC, 1999. See also Patricia Cohen, “Next Big Thing in English: Knowing They Know That You Know,” New York Times, 31 March 2010.

Jonathan Mercer, “Audience Costs Are Toys,” Security Studies 21, no. 3 (July-September 2012).

Let the wittiest scholar(s) win!

*(I started this post last year, but had trouble coming up with a third entrant. Political scientists are not, as a group, very funny in print. But now my third entrant problem has been solved.)

Categories: Policy Institutes

Paul Krugman’s Nostalgia for Teddy Roosevelt’s New Nationalism

Cato Op-Eds - Mon, 03/31/2014 - 15:18

Alan Reynolds

Paul Krugman managed to discover “America’s Taxation Tradition” in an unlikely spot – a fiery old political speech by an unsuccessful presidential candidate who called for a “graduated inheritance tax on big fortunes.” Dripping with irony, Krugman asks “Who this left-winger? Theodore Roosevelt, in his famous 1910 New Nationalism Speech.”

Readers are supposed to assume that because Roosevelt had been a Republican, his New Nationalism speech could not possibly have been remotely left of center. Yet the phrase “new nationalism” and the advocacy of an inheritance tax were both borrowed from Herbert Croly’s highly influential 1909 manifesto of the Progressive Era, The Promise of American Life.

As Christopher Lasch noted, “Theodore Roosevelt read The Promise, found it highly flattering to himself, publicly praised it, and used it as an argument for his ‘new nationalism.’ Croly did not so much influence Roosevelt as read into his career an intellectual coherence which Roosevelt then adopted as his own view of things.” Croly, who later launched The New Republic magazine, supported Roosevelt in the 1912 Presidential race and Robert La Follette’s Progressive Party campaign in 1924, before becoming disenchanted and (as Lasch put it) “flirting with socialism.”

In his 1909 book, Croly said, “In economic warfare … it is the business of the state to see that its own friends are victorious. It holds … a hand in the game.” The state, said Croly, must look out for “the national interest,” and help those to win “who are most capable of using their winnings for the benefit of society.” To the properly cynical, that sounds like an open invitation to crony capitalism and corruption, if not kleptocracy.

In the New Nationalism speech Roosevelt said, “We should permit [a fortune] to be gained only so long as the gaining represents benefit to the community. This, I know, implies a policy of a far more active governmental interference with social and economic conditions in this country …  No man should receive a dollar unless that dollar has been fairly earned. Every dollar received should represent a dollar’s worth of service rendered — not gambling in stocks, but service rendered” (Roosevelt gambled-away his own inheritance on a ranching venture, not stocks).

Not quite socialist in 1909, Croly tolerated, “preservation of the institution of private property in some form, [but only with] the … radical transformation of its existing nature and influence.” Similarly, Roosevelt allowed that he would prefer to stop short of government ownership of business (socialism), if government control (fascism) would suffice. “I do not wish to see the nation forced into the ownership of the railways,” said Roosevelt, “if it can possibly be avoided.”

In short, the Roosevelt/Croly New Nationalism certainly did lean in a “leftist” (statist and collectivist) direction with respect to state supremacy over private property.

As afterword, here is something I wrote in a 1995 anthology revisiting Croly’s The Promise of American Life:

Herbert Croly’s quaint 1909 vision of the merits of increased centralization was founded on the notion that ‘American state governments have been corrupt and inefficient largely because they have been organized for the benefit of corrupt and inefficient men.’ The federal government, by contrast, was apparently organized for the benefit of saints and angels. Still, Croly’s idea of ‘big government’ in Washington looks like a bargain by today’s standards. He reasoned that a much stronger federal government could be financed out of a graduated inheritance tax: ‘The tax at its highest level,’ Croly wrote, ‘could be placed without danger of evasion at as much as 20 percent.’ Some recent estimates suggest that Croly may have been correct about how high the estate tax could be pushed without losing money. In any case, if a 20 percent inheritance tax were the only federal tax we had to worry about, as Croly proposed, the states would have little difficulty in raising money for the services that are still almost entirely a state or local responsibility, such as police protection, public schools, and roads. (The federal government, by contrast, is almost entirely involved in taking money from some people and giving it to others).

Categories: Policy Institutes

Is Government Debt a Problem?

Cato Op-Eds - Mon, 03/31/2014 - 12:10

Daniel J. Mitchell

Based on what’s happened in Greece and other European nations, we know from real-world evidence that even nations from the developed world can spend themselves into debt trouble.

This has led to research that seeks to pinpoint when debt reaches a dangerous level.

Where’s the point where investors stop buying the debt? Where’s the point when interest on the debt becomes too much of a burden?

Most famously, a couple of economists crunched numbers and warned that nations may reach a tipping point when debt is about 90 percent of GDP.

I was not persuaded by this research for two reasons.

First, I think it’s far more important to focus on the underlying disease of too much government, and not get fixated on the symptom of too much borrowing. If I go see a doctor because of headaches and he discovers I have a brain tumor, I want him to address that problem and not get distracted by the fact that head pain is one of the symptoms.

Second, there are big differences between nations, and those differences have a big effect on whether investors are willing to buy government bonds. The burden of debt is about 240 percent of GDP in Japan and the nation’s economy is moribund, for instance, yet there’s no indication that the “bond vigilantes” are about to pounce. On the other hand, investors are understandably leery about buying Argentinian government debt, even though accumulated red ink is less than 40 percent of economic output.

So what about America, where government borrowing from the private sector now accounts for 82 percent of GDP? Have we reached a danger point for government debt?

According to Matthew Yglesias (who says I’m insane and irrational), the answer is no.

Stop freaking out about the debt

I have several comments on this video.

  1. Some people have complained that the video is deceptive because it focuses on debt held by the public rather than the gross federal debt. The video could have been more explicit and explained why that choice was made, but I have no objection to the focus on publicly-held debt. After all, that’s the measure of what government has borrowed from the private sector. The gross federal debt, by contrast, also includes money the government owes itself (such as the IOUs in the Social Security Trust Fund), but that type of debt is merely a bookkeeping entry.
  2. The video asserts that inflation is low and therefore we don’t have to worry that government might have to “print money” at some point to finance additional debt. I don’t think there’s any immediate danger that the Fed will be put in a position of financing the federal government, but I nonetheless don’t like this logic. It’s sort of like saying it wouldn’t be a problem to start eating ten pizzas per day because you currently aren’t heavy. The simple truth is that low inflation now doesn’t mean low inflation in the future.
  3. I also reject the assumption in the video that interest rates drive the economy. Indeed, it’s probably more accurate to say that the economy drives interest rates, not the other way around. Suffice to say that the video is based on the same thinking that led the Congressional Budget Office to imply that you maximize growth by putting tax rates at 100 percent.
  4. The video also warns that politicians shouldn’t raise taxes or reduce government benefits since either policy would “take money out of people’s pockets.” This is Keynesian economic theory, which I’ve explained many times doesn’t make sense. No need to regurgitate those arguments here.
  5. Which brings us to the main problem of the video. It ignores the problem of unfunded liabilities. More specifically, it doesn’t address the fact that politicians have made commitments to spend far too much money in the future, largely because of poorly designed entitlement programs. And it is these built-in promises to spend money that give America a very grim fiscal future, as show by this BIS, OECD, and IMF data.

Here’s the video, produced by the Center for Prosperity, that accurately puts all this information together (the data is now several years out of date, but the analysis is still spot on).

Deficits, Debts and Unfunded Liabilities: The Consequences of Excessive Government Spending

Remember, the problem - both today and in the future - is the burden of government spending.

Categories: Policy Institutes

Obama’s Deportation Numbers: Border and Interior Immigration Enforcement Are Substitutes, Not Complements

Cato Op-Eds - Mon, 03/31/2014 - 12:05

Alex Nowrasteh

It’s become clear over the last few months that something very funny is going on with immigration enforcement statistics (here, here, and here).  The data generally show that interior enforcement, what most people commonly think of as “deportations” (but also includes I-9, Secure Communities, and E-Verify), has declined as a percentage of total removals.  Many of the removals appear to be unlawful immigrants apprehended by Customs and Border Protection (CBP) and then turned over to Immigration and Customs Enforcement (ICE) for removal – a trend that began in 2012 and accelerated in 2013.  That transfer makes it appear as if there was more internal enforcement than there really was.  The administration is therefore deporting an increasing number of recent border crossers and a decreasing number of unlawful immigrants apprehended in the interior. 

It appears, then, that President Obama’s reputation for severe interior enforcement was earned for 2009, 2010, and 2011 but is somewhat unjustified in 2012 and 2013.  The Bipartisan Policy Center has an excellent report on the enormous court backlogs and other issues that have arisen due to interior immigration enforcement.  I’m waiting for additional information from a FOIA request before wading into the data surrounding the interior versus border removals controversy because we do not have data on internal enforcement numbers prior to 2008.    

Interior enforcement is only part of the government’s immigration enforcement strategy and must also be looked at as a component of broader immigration enforcement that includes border enforcement.

Jessica Vaughan at the Center for Immigration Studies (CIS) combines returns at the border and removals that appears to show President Obama as the weakest immigration enforcer in decades.  Her conclusion mistakenly conflates lower numbers of unauthorized immigrant crossers with a lack of enforcement.  Since fewer unauthorized immigrants are crossing the border now than prior to the Great Recession, the decrease in returns is due to the decreasing quantity of crossers and not a lack of enforcement.  However, Vaughan’s combination of border enforcement’s returns of unlawful immigrants and interior enforcement’s deportation numbers rightly shows how linked these two functions of immigration enforcement are.

After reading research from CIS for years, I can safely assume that they view border and interior immigration enforcement as complementary.  Increased border enforcement multiplies the effectiveness of interior enforcement and vice versa.  Under their view, less interior enforcement will lead to less effective immigration enforcement even if all of those resources are transferred to border enforcement – losing out on the supposed synergies that only exist when both types of enforcement work in tandem.  Unsurprisingly, I think interior and border enforcement are more likely to be substitutes than complements – but imperfect substitutes.  Moreover, many more resources would have to be devoted to interior enforcement to get the same deterrent effect from an equivalent amount of resources devoted toward border enforcement.  

Some history of immigration enforcement strategy: Since the mid-1990s, the border enforcement strategy has been one of “prevention through deterrence” – the idea that concentrating personnel, infrastructure, and surveillance along the most crossed regions of the border will most effectively discourage unlawful immigration.  By reducing the flow, the long run gradual attrition and voluntary return migration will gradually reduce the stock of unauthorized immigrants. 

According to the Congressional Research Service,

[s]ince 2005, CBP has attempted to discourage repeat entries and disrupt migrant smuggling networks by imposing tougher penalties against certain unauthorized aliens, a set of policies eventually described as “enforcement with consequences.” Most people apprehended at the Southwest border are now subject to “high consequence” enforcement outcomes.  Across a variety of indicators, the United States has substantially expanded border enforcement resources over the last three decades. Particularly since 2001, such increases include border security appropriations, personnel, fencing and infrastructure, and surveillance technology.      

The strategic goals of interior enforcement are similar to the goals of border enforcement.  According to Bryan Roberts, Ted Alden, and John Whitley at the Council on Foreign Relations, the goals of interior enforcement are to “turn off the jobs magnet” and prompt “attrition through enforcement” (pp. 34-35).  In other words, the strategic goal of interior immigration enforcement is to deter the entry of unauthorized immigration and then incentivize the return of those who come anyway.  

This leads us to the issue of whether interior enforcement is even effective. 

Assuming that the effectiveness of immigration enforcement should be maximized, shifting immigration enforcement actions from interior to border enforcement makes more sense.  Bryan Roberts, Ted Alden, and John Whitley sum up the studies and evidence comparing the marginal effectiveness of additional resources spent on border versus interior enforcement (pp. 34-38).  For both categories, the main effect is to change immigrant behavior once in the United States or to change their mode of entry.  The decision to unlawfully enter is not reconsidered due to increased internal enforcement.   The exceptions are two studies that purported to find that increased interior enforcement was twice as cost effective as border enforcement in Arizona, mainly by lowering the wage for unauthorized immigrants.  Those studies were written before it was revealed how ineffective E-Verify has been in lowering wages for unauthorized immigrants in Arizona (the results might be different if E-Verify was nationalized), so the deterrent effect is likely less than reported.

The counter argument to the common finding that interior enforcement is inefficient is that it has not really been tried, so we don’t necessarily know how effective it could be if more resources were devoted to it.  Given the disappointing (from the restrictionist point of view) results of E-Verify, the lack of studies investigating the deterrent effect of Secure Communities, and the known effectiveness of border enforcement in deterring unlawful entries, shifting resources from internal enforcement to border enforcement is likely a better use of scarce resources to disincentivize unauthorized immigration. 

Border enforcement is likely getting more effective.  A December 2012 GAO report found that about 81 percent of all those who attempted to enter illegally along the Southwest border in 2011 were either apprehended or turned back (caution, the denominator is not always known here).  That percentage is up dramatically from previous years.


Get Aways, Apprehensions, and Turnbacks on the South West Border


Source: GAO.


Apprehensions and Turnbacks as a Percent of Estimated Unlawful Entries


Source: GAO.

The government has been getting better at border security although the decrease in the number of unauthorized border crossers due to the poor economy can take most of the credit.  The reallocation of interior immigration enforcement resources to border enforcement appears to be rational from the perspective of a government seeking to increase the deterrent effect of immigration enforcement.  Effective border security likely affects the flow of unauthorized immigrants more directly than the stock, but it also leads to long run decreases in the latter.   

None of this blog post should be taken as an endorsement of a heavy-handed enforcement-only strategy to diminish unauthorized immigration.  The best way to have well-enforced immigration laws is to have better laws that allow lower skilled immigrants to come permanently or temporarily to work with minimal regulations.  Channeling lower skilled workers into the legal market will dramatically reduce the flow of unlawful immigrants, making immigration enforcement along the border more effective – similar to how current border enforcement is more effective during the lousy economy, but without having to suffer low economic growth.  Visa overstays are another matter entirely.  

A decrease in interior immigration enforcement relative to increased border enforcement does not signal the end of immigration enforcement, as so many are hyperbolically claiming.  Interior and border immigration enforcement are substitutes, but border enforcement is much more efficient at actually deterring unauthorized immigration – the actual strategic goal of immigration enforcement.          

Categories: Policy Institutes

NSA Spying and a National ID Are Peas in a Pod and You Should Eat Your Peas

Cato Op-Eds - Mon, 03/31/2014 - 12:02

Jim Harper

That’s the upshot of a column by Froma Harrop appearing in the Seattle Times.

“Arguments leveled against Real ID are being recycled to bash the National Security Agency’s surveillance program,” she writes. “They inevitably lead to the assumption that the government is up to no good.”

Well, … yes.

The argument against creating a U.S. national ID is that its cost in dollars and privacy are greater than the tiny margin of security they might provide. Over years, I’ve pointed out that spending billions of dollars to herd law-abiding Americans into a national ID system might mildly inconvenience any terrorists. It’s not worth doing.

That idea—that security measures should be cost-effective—is wisely ‘recycled’ for use with respect to the NSA’s program to gather data about every call made in the United States. Doing so doesn’t provide a margin of security worth the cost in dollars, privacy, and menace to liberty.

When the government wastes our money, privacy, and liberty on programs that don’t provide a sufficient margin of security, that is bad. That is government “up to no good.”

The states asked to implement our national ID law rejected it because, in the disorganized way our federal republic makes decisions, it was decided that REAL ID does not pass muster. (Some states and national ID advocate groups continue to press forward with it, a subject on which I’ll say more soon.)

In a similarly messy process, the organs of democracy are finding that the NSA’s programs—originally constructed and conducted in secrecy—do not pass muster either. We’re rightly pushing this plate of peas away.

Categories: Policy Institutes

Authoritarian Governments Use Old Smears to Tear Down Their Opponents

Cato Op-Eds - Mon, 03/31/2014 - 09:30

David Boaz

Anne Applebaum reports on how old smears are still used to support illiberal ideas and authoritarian government:

Halfway through an otherwise coherent conversation with a Georgian lawyer here — the topics included judges, the court system, the police — I was startled by a comment he made about his country’s former government, led by then-president Mikheil Saakashvili. “They were LGBT,” he said, conspiratorially.

What did that mean, I asked, surprised. Were they for lesbian, gay, bisexual and transgender rights? For gay marriage? Were they actually gay? He couldn’t really define it, though the conversation meandered in that direction for a few more minutes, also touching on the subject of the former president’s alleged marital infidelity, his promotion of female politicians, his lack of respect for the church.

Afterward, I worked it out. The lawyer meant to say that Saakashvili — who drove his country hard in the direction of Europe, pulled Georgia as close to NATO as possible and used rough tactics to fight the ­post-Soviet mafia that dominated his country — was “too Western.” Not conservative enough. Not traditional enough. Too much of a modernizer, a reformer, a European. In the past, such a critic might have called Saakashvili a “rootless cosmopolitan.” But today the insulting code word for that sort of person in the former Soviet space — regardless of what he or she thinks about homosexuals — is LGBT.

None of this is new, as Applebaum notes. We’ve seen it recently in Venezuela. In 2012, as soon as Henrique Capriles won a primary to become the candidate of the democratic opposition against Venezuelan strongman Hugo Chavez, the Wall Street Journal reported that he

was vilified in a campaign in Venezuela’s state-run media, which insinuated he was, among other things, a homosexual and a Zionist agent.

Homosexual and Jewish, I thought. When they attack him for being rich, they’ll have the trifecta of populist prejudices.

And sure enough, they did. Chavez himself declared:

The bourgeoisie have their candidate – the candidate of the anti-fatherland, of capitalism, of the Yankees. We are going to thrash that bourgeoisie.

Chavez, of course, also threw in “the candidate of the Yankees,” that is, the Americans. German democrats used to say that “anti-semitism is the socialism of fools.” Now in many countries we could say that anti-Americanism is the new anti-semitism. They’re often found in tandem.

The authoritarian government of Malaysia calls its chief opponent, Anwar Ibrahim, a homosexual and a gay propagandist, and has even prosecuted and jailed him on trumped-up sodomy charges.

All of these epithets – homosexual, Jewish, bourgeoisie, and more recently, “American” – have been staples of illiberal rhetoric for centuries. Liberals – advocates of democracy, free speech, religious freedom, and market freedoms – have been tarred as “cosmopolitan” and somehow alien to the people, the Volk, the faithful, the fatherland, the heartland.

Authoritarians such as Putin and Chavez’s successor Nicolas Maduro also like to denounce their opponents as “fascists,” even though they themselves fit most of the textbook definition of fascism – nationalism, anti-liberalism, a charismatic leader as the embodiment of the nation, and an economy controlled indirectly by the state, typically through nominally private owners

Liberals should denounce these sorts of vile and illiberal attacks, whether they stem from the American far right or far left, Vladimir Putin, the ruling party in Malaysia, or the Venezuelan socialists. 

Categories: Policy Institutes

Visiting Nigeria: Tragic Poverty, Pervasive Insecurity Extraordinary Potential

Cato Op-Eds - Mon, 03/31/2014 - 09:29

Doug Bandow

ABUJA, NIGERIA—Like so many developing states, Nigeria showcases poverty while exhibiting potential.  People are entrepreneurial but the state is exploitative.  Wealth is made but too often stolen.  Evidence of security—which really means insecurity—is everywhere.

I traveled with a journalist group on a business tour of Nigeria.  We were met by representatives of the organizer, along with a driver and two national policemen armed with AK-47s.

All of my hotels around the country had metal detectors.  High walls and gates manned by armed security personnel. 

Nevertheless, Abuja, as the seat of government, is relatively safe.  Former governor Orji Uzor Kalu, a successful businessman considering a presidential run, complained that “without a police escort you can’t move” in much of the country:  “You can move in Abuja, maybe some parts of Lagos, but you cannot move elsewhere.”  Security checkpoints on major roads were common as we traveled outside of major cities.

As I explain in my latest article on the American Spectator online:  “The Niger Delta, host to manifold energy and maritime operations, is particularly risky.  Residents resent northern domination and perceive that, as one businessman put it, money being extracted from the ground and water isn’t going to the local people.  These attitudes have prompted kidnappings of foreigners and attacks on facilities and ships.” 

Being careful isn’t enough.  Nor is hiring protective personnel.  Company officials privately acknowledge more directly buying protection, spreading cash throughout local communities. 

The smart outsider makes sure he has a well-armed friend or two.  A sign on the door leading from the pool to the hotel proclaimed:  “All Escorts Terminate Here.  Fire Arms Are Prohibited In This Facility.” 

Nigeria has had its share of conflict—four decades ago the central government brutally suppressed the attempted secession of the eastern region as the state of Biafra, resulting in anywhere between one and three million dead.  More recently ruthless military dictators ruled.

Today the greatest problem may be internal divisions within the population of about 175 million divided into roughly 500 ethnic groups.  The country is almost evenly divided between Christian and Muslim, leading to complicated political bargaining.  Recently the terrorist group Boko Haram has been slaughtering Christians and moderate Muslims.

The country already suffers from the usual Third World maladies of the over-politicized state.  Bureaucracy is pervasive and corruption is rife.  One expatriate worker observed:  “Nigeria is not a country.  It is an opportunity.”

These economic disincentives are greatly exacerbated by problems of insecurity.  A potential investor or trader cannot move freely.  Expatriate employees much watch their backs.  And the costs roll down to indigenous peoples, who lose economic opportunities.

Kalu, who is considering a presidential run, emphasized the need for deregulation and privatization and professed his admiration of Ronald Reagan.  He also highlighted the problems of corruption and energy for his oil-rich nation, where bribes are expected and power outages are constant.

But he suggested that the lack of personal safety is even more basic.  During a recent interview in Abuja he noted that “internal security is crucial.”  Without security, he said, “I don’t know how we can develop.  We need internal security so citizens and non-citizens can move more freely.”

Nigeria’s security problems underscore the country’s extraordinary unmet potential.  It has Africa’s largest population and Nigeria’s GDP will soon surpass that of South Africa. Nigeria’s energy reserves are an envy of the continent.

Moreover, the Nigerian people exhibit both hard work and entrepreneurship.  People are every where on the move, hawking products.  What Nigerians lack, one businessman complained to me, was an “enabling environment” from the government.

Which should include security, perhaps the most foundational government responsibility.

Nigeria has many advantages lacking in its neighbors, and other developing states.  However, so much of its potential is yet untapped.  It is well past time for Nigeria’s leaders to put their people’s interests first.

Categories: Policy Institutes

Climate Change: We TOLd You So.

Cato Op-Eds - Mon, 03/31/2014 - 08:54

Patrick J. Michaels and Paul C. "Chip" Knappenberger

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

We complain so constantly about the pessimistic view that the government takes on climate change that perhaps some of you are thinking alright already, we get it.  Of course, the concept that governments exaggerate threats in order for the populace to clamor to be led to safety is Mencken at his pithiest, and such sentiment  is not in particularly short supply here at Cato!

If  you think that we are out on a pessimistic limb, check out this story making headlines out of Japan, from the U.N.’s Intergovernmental Panel on Climate Change meeting to hash out the second part of their latest climate change assessment report.  The first part, on the science of climate change, was released last fall (it was horrible). The second part deals with the impacts of climate change (isn’t going to be much better). The news is that one of the lead authors on the economics chapter, Richard Tol, Professor of Economics at the University of Sussex, has quit the IPCC over their irrational negativity.

Here is how a Reuters article headlined “UN author says draft climate report alarmist, pulls out of team” captured Tol’s thoughts:

Tol said the IPCC emphasised the risks of climate change far more than the opportunities to adapt. A Reuters count shows the final draft has 139 mentions of “risk” and 8 of “opportunity”.

Tol said farmers, for example, could grow new crops if the climate in their region became hotter, wetter or drier. “They will adapt. Farmers are not stupid,” he said.

He said the report played down possible economic benefits of low levels of warming. Less cold winters may mean fewer deaths among the elderly, and crops may grow better in some regions.

“It is pretty damn obvious that there are positive impacts of climate change, even though we are not always allowed to talk about them,” he said. But he said temperatures were set to rise to levels this century that would be damaging overall.

Tol has developed an economic model that finds that modest climate change will prove economically positive. However, towards that latter part of this century, temperatures in his model are projected to rise to such a degree that that resulting negative consequences eventually overwhelm the positive one.  Thus the final sentence in the passage above.

However, the climate projections that are incorporated in Tol’s economic model are likely wrong—they predict too much warming from future carbon dioxide emissions. When those climate model projections are brought more in line with the current best science, the positive economic benefits from Tol’s model likely extend far beyond the end of the 21st century.

The bottom line is that people adapt to climate change and so long as it is relatively modest—and there is growing evidence that it will be—the human condition will almost certainly be no worse off and probably even better.

Enough with the pessimistic outlook!  It is high time to celebrate the progress we are making, in the face of, or even in part because of, the earth’s changing climate.

Categories: Policy Institutes