Policy Institutes

Randal O'Toole

In 2008, the Washington legislature passed a law mandating a 50 percent reduction in per capita driving by 2050. California and Oregon laws or regulations have similar but somewhat less draconian targets.

The Obama administration wants to mandate that all new cars come equipped with vehicle-to-infrastructure communications, so the car can send signals to and receive messages from street lights and other infrastructure.

Now the California Air Resources Board is considering regulations requiring that all cars monitor their owners’ driving habits, including but not limited to how many miles they drive, how much fuel they use, and how much pollution or greenhouse gases they emit.

Put these all together and you have a system in which the government will not only know where your vehicle is at all times, but can turn off your vehicle if it decides you are driving too much or driving in a way that emits too many grams of carbon dioxide or is otherwise offensive to some bureaucratic imperative.

I sometimes think privacy advocates are a paranoid bunch, seeing men in black around every corner and surveillance helicopters or drones in the air at all times. On the other hand, if a technology is available–such as the ability to record cell phone calls–the government has proven it will use it.

Consider all of the lovable progressives out there who think the government should “punish climate change liars,” meaning people who have differing opinions on scientific issues. It’s not much a stretch to think that, any time they happen to be in power, they will use the available technology to make people stop driving. After all, just how important can that extra trip to the supermarket be compared to the absolute imperative of preventing the seas from rising a quadrillionth of an inch?

Of course, the elected officials and bureaucrats who run this system will exempt themselves from the rules. After all, nothing is more important than their work of running the country and making sure people don’t abuse their freedom by engaging in too much mobility.

As California writer Steven Greenhut points out, we already have red-light cameras, and some “eastern states have suspended drivers from using toll lanes after their transponders showed them to be speeders.” They’re not invading our privacy, the greens will argue, they are just making sure that our actions aren’t harming Mother Earth.

Of course, for many it really isn’t about greenhouse gas emissions. Mobility allows (or, as anti-auto groups would say, forces) people to living in low-density “sprawl” where they can escape taxation by cities eager to subsidize stadiums, convention centers, and light-rail lines. All they have to do is ramp down people’s monthly driving rations–something like a cap-and-trade system that steadily reduces the caps–and suburbanites will eventually find that they have to move back to the cities.

No doubt some will argue that even those who drive the most fuel-efficient cars should be subject to the same driving limits because suburban homes waste energy too. Or that people will be safer from terrorists if they are all jammed together in cities close to emergency facilities than if they are spread across the countryside. Or that suburbanites are parasites on the cities and should be reassimilated back into the cities’ benign embrace and taxing districts.

Whatever the argument, the point is that if the technology is there, the government will use it. If people really want to buy cars that monitor their every move and are capable of communicating those moves to some central infrastructure, they should be allowed to do so. But allowing the government to mandate these things is simply asking to have well-meaning, and sometimes not-so-well-meaning, government bureaucrats control how we travel and where we live.

Ted Galen Carpenter

The Japanese government and Western news outlets are highlighting Tokyo’s commitment to increase its military spending for the third straight year.  Pundits and policy experts see the boost as a response to the spike in bilateral tensions with China—especially the bitter dispute concerning sovereignty over the Senkaku Islands in the East China Sea.  But as with similar moves by the Baltic republics and Washington’s other NATO allies that reflect worries about Russia’s recent behavior, there is more symbolism than substance in Prime Minister Shinzo Abe’s decision. 

Japan’s defense budget for the fiscal year beginning in April will be 4.98 trillion yen ($42 billion). The increase is quite modest—up from 4.84 trillion yen in the current year. Moreover, even the larger sum is less than half of China’s official military budget and less than one-third of what the Pentagon and most independent experts believe is Beijing’s actual level of spending. Although Japan’s “Self Defense Forces” already can deploy a significant amount of modern weaponry, such a large disparity in spending is cause for concern. 

That is especially true since Abe’s government has adopted an increasingly assertive posture toward China on a range of issues. In one sense, U.S. officials have reason to be gratified by that move and Tokyo’s greater overall interest in East Asia’s security. Japan finally seems to be taking steps to become a normal great power regarding military matters instead of clinging to pacifism and relying on the United States to protect important Japanese interests. Abe’s efforts to “reinterpret” Article Nine of the country’s constitution, which officially places draconian restraints on the military, also reflect the shift in thinking.

But it is not enough to adopt a new security doctrine or make modest changes in the level of defense spending.  If Tokyo intends to challenge China’s growing power in East Asia, the Japanese military budget will need to be substantially greater than it is currently. Such a commitment requires abolishing the self-imposed limit of spending no more than one percent of the country’s annual gross domestic product on defense. That does not mean that Tokyo must match Beijing’s military outlays dollar for dollar. In addition to its goals in the Western Pacific, China has challenges and objectives along vast land borders with Russia, India, and other countries.  Japan’s security concerns are more limited and concentrated. Indeed, other than dealing with moves by China and North Korea, it is difficult to indentify a pressing Japanese defense issue.

Nevertheless, continuing to spend only a third as much as China while at the same time taking an increasingly confrontational stance toward Beijing is not a responsible policy. That combination implies that Tokyo still expects the United States to deter any Chinese moves directed against Japanese interests. In other words, Japan’s new foreign policy increases the danger of a conflict erupting in East Asia while the country’s military capabilities remain insufficient to enforce that policy.

Washington needs to be worried about such a combination, since it significantly raises the level of risk to the United States. Tokyo must take steps to bring its defense spending and its foreign policy objectives (especially those involving China) into alignment.  That means either reverting to a more passive regional role or boosting military spending in a much more serious fashion.

Emma Ashford

Last week I wrote a piece for the Orange County Register, talking about the dangers of describing the current U.S. conflict with Russia as a new Cold War. In it, I highlighted the problems that arise when policymakers use historical analogies as a cheat sheet to understand today’s foreign policy crises.

Drawing analogies to past crises is a natural human reaction, and one which is widespread among foreign policy decision makers. As I noted:

Political science research demonstrates that leaders often rationalize their decisions by making analogies to prior crises. Policymakers also frequently use historical analogies to justify their choices.

Such analogies range from the sublime to the ridiculous. The prize for most ridiculous, at least recently, goes to those who described the North Korea/Sony hacking scandal as a potential “cyber Pearl Harbor.” But there were also a variety of serious analogies which dominated the news last year.

The idea that the United States and Russia are now engaged in a new Cold War has been mooted by media and by politicians. Yet current tensions with Russia over Ukraine differ in key ways from the cold war: Russia and Europe are far more economically linked than during the cold war, and disagreement centers primarily on the issue of NATO expansion, rather than on ideological grounds. By describing tensions with Russia as a new cold war, policymakers interpret all facets of the U.S.-Russian relationship in a conflictual way, preventing cooperation on other policy issues like Syria.

Another analogy stands in the way of negotiations on Ukraine itself. Opponents of a diplomatic solution to the Ukraine crisis frequently compare the situation to the 1930s appeasement of Nazi Germany at Munich. The Munich analogy has long been a favorite of foreign policy hawks, used to criticize any leader seen as being insufficiently ‘tough’ in a crisis. Unfortunately, in this case it serves as a barrier to diplomacy, with leaders scared to even open diplomatic talks for fear of being seen as ‘appeasing’ Russia.

Still other analogies last year focused on the Islamic State in Iraq and Syria (ISIS). ISIS was the new Al Qaeda. ISIS was the new Nazi Germany. Each comparison served to vastly exaggerate the threat from the group, which, though barbaric, posed little direct threat to the United States. Such exaggeration contributed substantially to renewed U.S. involvement in conflict in Iraq and Syria.

Analogies are a natural reaction when we try to understand complex new international crises. They also make great sound bites for politicians. But no two situations are exactly alike, and the solution to one crisis is not necessarily best for another, no matter how superficially similar they may be. Such lazy thinking often restricts our policy options unnecessarily.  So when faced with a foreign policy analogy, be skeptical. 

Mark A. Calabria

With the release of Peter Wallison’s new book, Hidden in Plain Sight, I suspect the debates over the role of Fannie Mae and Freddie Mac in the financial crisis may heat up again (I suspect Joe Nocera is working up a nasty review).  Anyone interested in the financial crisis should read this book.  It is extensively documented and well-written.  While the narrative is similar to other of Wallison’s writings, he musters far more evidence for his case here. The amount of contemporaneous material from advocates, HUD and the GSEs (Fannie and Freddie) is impressive.

I’ve generally been on the fence about the housing goals, as I have felt that GSE leverage was a far greater issue.  The book leaves me more sympathetic to Wallison’s argument.  For the best counter-argument regarding the goals, see John Weicher’s paper on the issue (unlike Nocera, Weicher includes facts and analysis). 

I do think Wallison too easily dismisses other drivers of the crisis, such as easy monetary policy, but his general points are well proven.  Those points are: 1) there were a lot more toxic loans in the system than generally believed; 2) government entities (FHA, GSEs) held far greater amounts of those toxic loans than generally believed; and 3) Fannie/Freddie purchased much of those toxic loans due to their housing goals, not as a drive for greater market share.

Having been closely involved in or monitoring GSE oversight since about 2001, let me add some of my own recollections.  As a staffer on the Senate Banking Committee when HUD proposed to increase the housing goals in 2004, I was extensively lobbied by Fannie and Freddie on the goals.  Whether they can be believed or not, at the time, both claimed that the proposed goals would endanger their business and result in substantial losses.  I would characterize the GSE attitude toward the goals in 2004 as one of near-panic (not that the GSEs were immune to exaggeration).  I also recall a meeting with Freddie CEO Dick Syron (either in 2006 or 2007) in which he claimed the goals were killing the company and that he needed political cover to improve lending standards.

I also recall countless meetings with housing advocates beginning in at least 2001 in which the argument was presented that the GSEs should be pushed into subprime in order to “clean up” that market.  I made a phone call to the GSEs’ then-regulator OFEHO in 2003 asking what all the “other” was in the reports of GSE purchase of mortgage-related securities. 

Imagine my surprise when told “other” was subprime private label securities.  Perhaps more shocking was when this senior OFHEO executive told me what a great thing it was, as it was providing liquidity to the subprime market.  Not only was the GSEs’ safety and soundness regulator aware the GSEs were driving subprime, this same regulator thought it was “great.”

There were a lot of contributors to the financial crisis.  One of those was the role Fannie Mae and Freddie Mac.  While the extent of that role can be debated, what I saw first hand before the crisis was 1) a broad Washington consensus that the GSEs should drive the subprime market and 2) the GSEs were not trying to drive that market but rather policymakers were nudging them in that direction. 

Perhaps that experience made me more open to Wallison’s arguments, you can and should judge for yourself (after actually reading the book).

 

 

Alex Nowrasteh

Senator Orrin Hatch (R-UT) introduced the I-Squared Act of 2015 to reform the high-skilled immigration system.  Most of this bill attempts to improve the H-1B visa for temporary highly skilled workers by making the workers more legally mobile and increasing the quotas for that visa.  The H-1B is a dual-intent guest worker visa program, meaning that workers on the H-1B can pursue a green card while working on a temporary visa. The H-1B is a pipeline to the employment-based (EB) green card.

Most commentators will focus on the important and positive proposed reforms to the H-1B visa.  In contrast, I will focus on the reforms to the employment-based (EB) green card program.  I-Squared would exempt several categories of workers and their family members from the numerical quota imposed on EB green cards.  Although I-Squared does not increase the numerical quota, effectively it more than doubles the quota through exemptions.  As I detail here, this is a very positive move for U.S. economic growth.  Below I detail many of the exemptions in I-Squared and then make some suggestions for further streamlining and liberalizing the system.

Exempting Dependents

The most important exemption in I-Squared for EB green cards is for the spouses and children of workers.  Under current statutory interpretation, the family members of these workers count against the quota. Fifty-five percent of those who received the EB green card were the spouses and children of workers in 2013.  Allowing those spots to instead be filled with workers would more than double their number going forward.      

2013 Employment Based Green Cards: Families and Workers

Source: 2013 Yearbook on Immigration Statistics, Table 7.

Exempting U.S. Stem Degree Holders

The second major exemption in I-Squared is for immigrants who earned a STEM masters degrees or doctorates from American universities.  According to the National Science Foundation, there are roughly 2.1 million foreign-born scientists and engineers employed in the United States who have an advanced degree.  Two-thirds of them completed their highest degree in the United States.  The United States is already an attractive place to work and attend university.  I-Squared will make it much more attractive by increasing the economic benefits of being educated here in those subjects by making green cards more attainable.  Ideally, those educated, trained, or in-demand for other university subjects and occupations should also be allowed to stay, but liberalizing the STEM fields is better than nothing.      

Exempting Extraordinary Ability and Outstanding Professors or Researchers

Workers with extraordinary ability and outstanding professors or researchers are part of the first preference category for EB green cards.  I-Squared exempts them all from the numerical quota.  In 2013, there were 4,064 workers in the extraordinary ability category and 3,117 outstanding professors and researchers who were granted a green card.  While this is a relatively small numerical exemption, it will free-up more green card spaces for other highly skilled workers and encourage more immigrants with those extraordinary and outstandaing abilities to come.   

Improving I-Squared

The above reforms in I-Squared will greatly improve the system if they become law.  However, other reforms should be undertaken to increase the economic benefits of skilled immigration. 

One such reform that isn’t included in I-Squared that would open up the skilled immigration system even further would be to exempt “adjustments of status” from the EB green card quotas.  An adjustment of status is triggered when a migrant on any visa who currently lives here earns an EB green card rather than applying for the EB green card from outside of the United States.  In 2013, 90.5 percent of EB green cards issued to workers were technically adjustments of status.  Exempting all or some of them, say those previously on an H-1B visa, from the EB green card quota would almost double the number of EB green cards issued each year. 

2013 Adjustment of Status and New Arrivals for EB Green Cards

     

Source: 2013 Yearbook on Immigration Statistics, Table 7.

The other portions of I-Squared, such as allowing F visas to be dual intent, recapturing unused EB green cards from previous years, and eliminating the per-country quotas are all great improvements.  This bill represents a good first step toward reforming the high-skilled immigration system.  

Conclusion

If I-Squared were to become law and foreign STEM graduates could easily earn a green card, the United States would become an even more attractive place for international students to pursue those degrees as well as contribute to our economy.  Furthermore, the increase in H-1B visas would create a bigger pipeline of potential future workers eligible for EB green cards under the expanded system.  If I-Squared becomes law, it could substantially change American immigration policy to favor highly skilled immigrants without diminishing family-based immigration.  

Patrick J. Michaels

As we predicted here, the Senate’s Keystone XL Pipeline legislation is going to be pelted with global warming-related amendments from Democrats as the price for a veto-proof bill. Most interesting is one by Bernie Sanders (S-VT) which asks the Senate to vote on whether climate change is real and made “worse” by dreaded carbon dioxide emissions.

Of course the first part is true—“climate” and “change” go hand-in-hand.  But the fact is that the warming that is occurring is happening at a rate far below what was forecast, and hasn’t been happening at all for 18+ years now.  So, perhaps some Republican will propose an amendment that in fact approaches the truth in this nuanced issue.

Perhaps, “Climate change is real and it is demonstrable that the climate models used by the United Nations’ Intergovernmental Panel on Climate Change to predict the future are on the verge of failure.”

Senator Paul?

K. William Watson

The United States has finally ended a ban on long haul truck deliveries from Mexico.  The U.S. government promised to lift the ban twenty years ago as part of the North American Free Trade Agreement, but caved in to pressure from the Teamsters union claiming that Mexican trucks would be a safety hazard on U.S. roads.  Twenty years of data and two pilot programs seem to have been enough to convince your government that, in this case at least, Mexicans are just as good at doing things as other people.

But surely, you protest, the complaint could not have been that Mexicans are incompetent, but that Mexican safety standards and regulations are overly lax or poorly enforced.  To be fair, the Teamsters union has claimed that Mexican trucks are subject to inadequate regulation and that their drivers are poorly trained.  This argument would perhaps be meaningful if it weren’t so inexcusably misleading.  The fact is that all Mexican trucks operating in the United States have to get permits that require prescreening and regular inspections. 

In short, Mexican trucks operating in the United States are regulated by the U.S. government.  The only difference is the nationality of the truck’s driver and owner.

What makes the Mexican truck saga so bizarre is that opponents have baldly used xenophobia as a “cover” for a more self-serving agenda.  Of course the Teamsters union wants to keep Mexican truckers off the roads because of the competition those non-union drivers bring with them.  The official list of concerns offered by the union includes “job loss, border security, [and] highway safety,” each trumpeted loudly at appropriate moments.  Usually when protectionists want to obscure their intentions, they pick a less unsavory cover that doesn’t play so openly on negative stereotypes or mistrust of foreigners.

With the ban now ended, this embarrassing moment in U.S. political history is thankfully behind us.  I can only hope that from now special interests will feel compelled by decency to mask their rent-seeking ventures behind less absurd and offensive arguments.

Daniel J. Ikenson

With the Trans-Pacific Partnership (TPP) negotiations reported to be nearing completion and the Transatlantic Trade and Investment Partnership (TTIP) talks kicking into higher gear, Congress is expected to turn its attention to Trade Promotion Authority (TPA) legislation in the weeks ahead.

That’s where opponents of trade – mostly from the Left, but some from the Right – have decided to wage the next battle in their war against trade liberalization. Tactically, that makes some sense because, if they succeed, the TPP and the TTIP will be sidelined indefinitely. But, as observed by the Greek Tragedians and countless times in the millennia since, truth is the first casualty of war.

Trade opponents characterize TPA as an executive power-grab, a legislative capitulation, and a blank check from Congress that entitles the president to negotiate trade deals in secret without any congressional input except the right to vote “yea” or “nay” on an unalterable, unamendable, completed and signed agreement. But the truth is that TPA does not cede any authority from one branch to the other, but makes exercise of that authority more practicable for both branches.

Under the Constitution, Article I, Section 8, Congress is given the authority to “regulate commerce with foreign nations” and to “lay and collect taxes, duties, imposts, and excises.” While the president has no specific constitutional authority over trade, Article II grants the president power to make treaties with the advice and consent of the Senate. Accordingly, the formulation, negotiation, and implementation of trade agreements require the involvement and cooperation of both branches.

TPA allows the executive branch to negotiate trade deals with foreign governments on the basis of guidance from Congress, to be approved or not, under expedited legislative procedure by a subsequent up-or-down congressional vote on legislation to implement the agreement after it has been completed. That guidance includes articulation of Congress’s trade policy objectives, specific parameters, and other conditions that it expects the executive branch to meet in order for completed trade deals to receive the fast-track treatment of guaranteed, timely, up-or-down votes in both chambers without scope for amendments or filibusters. In other words, Congress does not relinquish its authority. It reiterates its authority by setting boundaries for the president.

Absent a grant of TPA, the executive branch would have difficulty concluding trade negotiations because foreign governments would be unlikely to put their best offers on the table without assurances that the agreement wouldn’t be unraveled by Congress. Put another way, TPA gives the president additional negotiating leverage by assuring trade partners that any agreement reached is final.

Every U.S. president since 1974 (when TPA was born as “Fast Track Negotiating Authority”) has been granted this authority by Congress to negotiate agreements to expand trade with other nations. Questions about whether this compact is proper and constitutional have been raised and answered affirmatively over the years by legal scholars. In 2002, former Attorney General Edwin Meese III and a colleague authored a legal memorandum for the Heritage Foundation, which found that TPA was “clearly constitutional” because:

Congress retains its authority to approve or reject all future trade agreements.  It might be unconstitutional if Congress tried to delegate its authority to approve the final deal, but that is not at issue.  Congress may always kill any future international trade agreement by withholding its final approval.

(More background on practical, legal, and constitutional matter here and here.)

In July 2013, President Obama requested that Congress reauthorize TPA, which elapsed six year earlier during the Bush administration. In January 2014, legislation to renew TPA—the Bipartisan Congressional Trade Priorities Act of 2014—was introduced in the House and Senate, but Congress did not act upon it, so new legislation will be required in the 114th Congress.

Although support for renewal of TPA is stronger in the 114th Congress, there is likely going to be considerable debate about which congressional objectives, conditions, and parameters to include, and what shortcomings might trigger removal of an agreement from fast track consideration. That all makes for healthy and appropriate debate.

David Boaz

On NPR’s “Morning Edition,” Peter Overby discusses the way lobbyists are adjusting to the new Republican Congress. Some are hiring former Republican lawmakers and congressional staff. Some are reminding clients that there are still two parties, as in this nice ad for superlobbyist Heather Podesta, former sister-in-law of White House eminence John Podesta:

OVERBY: Even in a Republican Congress, lobbyists will need to court Democrats, too. Heather Podesta is happy to point that out. She runs her own small Democratic firm.

HEATHER PODESTA: The power of the Congressional Black Caucus has really grown.

OVERBY: In fact, she says CBC members are expected to be the top-ranking Democrats on 17 House committees and subcommittees.

PODESTA: Corporate America has to have entree into those offices. And we’re very fortunate to have the former executive director of the Congressional Black Caucus as part of our team.

After every election, the lobbyists and the spending interests never rest. The challenge for the tea party and for groups such as the National Taxpayers Union is to keep taxpayers even a fraction as engaged as the tax consumers.

In the last analysis, as I’ve written many times before – and in my forthcoming book The Libertarian Mind – the only way to reduce the influence of lobbyists is to shrink the size of government. 

As Craig Holman of the Nader-founded Public Citizen told Marketplace Radio, “the amount spent on lobbying … is related entirely to how much the federal government intervenes in the private economy.” Marketplace’s Ronni Radbill noted then, “In other words, the more active the government, the more the private sector will spend to have its say…. With the White House injecting billions of dollars into the economy, lobbyists say interest groups are paying a lot more attention to Washington than they have in a very long time.”

Big government means big lobbying. When you lay out a picnic, you get ants. And today’s federal budget is the biggest picnic in history.

 

 

Walter Olson

Yesterday’s lethal smoke episode in a tunnel near the L’Enfant Plaza station of Washington’s Metro system was like one of the disaster scenes in Atlas Shrugged, from the controllers’ instructions (eventually disobeyed) to riders not to evacuate the eight-car Yellow Line train even as it rapidly filled with smoke, to a spokesperson’s insistence that there were “no casualties in the traditional sense” even as workers above ground were seen hustling unconscious persons on stretchers into emergency vehicles. One person was killed and more than eighty taken to hospitals; the National Transportation Safety Board, ironically itself located at L’Enfant Plaza, says an “electrical arcing event” caused the smoke. Track fires have become common in recent years in the WMATA (Washington Metropolitan Area Transit Authority) rail system, as have train breakdowns, escalator closures, delays, and other disruptions. In 2009 a crash on the Red Line between Takoma Park and Fort Totten killed nine and injured 80. 

While the commuters who keep the nation’s capital running see Metro’s problems every day, elected officials in the region tend to show less sense of urgency. Last March, in an interview with DCist, then-mayoral candidate Muriel Bowser spent 450 words responding to a question on the state of the Metro system. All 450 were on the topic of how to get WMATA to hire more D.C. residents/voters. Because that’s obviously the key problem with Metro these days, right? (To be fair to the now-Mayor, who took office recently, it was the interviewer who’d introduced Metro as a topic that way; she merely gave no hint in her long response of seeing riders as an equally vital constituency.) 

At any rate, Metro’s wretched governance long predates the election of any current official, and there’s plenty of blame to spread around for it, especially in its division of responsibility among appointees from multiple local jurisdictions, who are not answerable to each other or to most of the system’s users. (In a city like Chicago, voters can punish poor subway management by changing mayors.) Still, there’s a question here. If the cream of the nation’s political class, living within a 50 mile radius in Virginia, Maryland, and D.C., cannot arrange to obtain competence from their elected local officials in delivering a public service that’s vital to their daily work lives, what does that tell us about their pretensions to improve through federal action the delivery of local government services – fire and police, water supply and schooling, road maintenance and, yes, transit itself – in the rest of the country?

Patrick J. Michaels

Secretary of State John Kerry is currently in India as advance guard for President Obama’s visit later this month. The president is going there to try and get some commitment from India (or the illusion of a commitment) to reduce its emissions of dreaded greenhouse gases. Until now, India, along with China, has resisted calls for major reductions, effectively blocking any global treaty limiting fossil fuel use. The president is very keen on changing this before this December’s United Nations confab in Paris, where such a treaty is supposed to be inked. 

Kerry’s mission is to get India ready for the president. Speaking at a trade conference in the state of Gujarat, Kerry said, “Global climate change is already violently affecting communities, not just across India but around the world. It is disrupting commerce, development and economic growth. It’s costing farmers crops.”

In reality, global climate change is exerting no detectable effect on India’s main crop production. 

As shown below the jump, the rate of increase in wheat yields has been constant since records began in the mid-1950s, and the rate of increase in rice yields is actually higher in the last three decades than it was at the start of the record.

Further, if Kerry was saying that climate change is reducing crop yields around the world, that’s wrong too. The increase in global yields has also been constant for decades.

Ilya Shapiro

The Atlanta-based U.S. Court of Appeals for the Eleventh Circuit has issued another landmark opinion that protects student rights against the arbitrary diktats of university officials. In a case that has wound up and down the federal judiciary several times, the court today again ruled for Valdosta State University student Thomas Hayden Barnes, who had been placed on administrative leave without a hearing after he had peacefully protested the construction of a parking garage.

As I described in summarizing the last brief Cato filed in this case, the Eleventh Circuit had previously affirmed the denial of qualified immunity against university president Ronald Zaccari, restating that malicious public officials aren’t entitled to special protections when they clearly violate the rights of another. On remand, the district court inexplicably let the defendants off on the student’s claim that Zaccari and others retaliated against him for exercising his First Amendment rights—he had already won on other claims regarding his due process rights—then applied a severe across-the-board reduction of attorney’s fees awarded to Barnes, and even granted reverse attorney’s fees for the defendants who were held not liable, going so far as calling those claims frivolous solely because they were unsuccessful.

The Eleventh Circuit has now reversed the lower court yet again, on all these points, asking the district court to reconsider the First Amendment claim and recalculate the attorney’s fees. The decision is pretty technical with no really quotable passages, but the workmanlike slap-down of the district court is notable.

Students who stand up for their constitutional rights are rare, and imposing unfavorable fee awards will only make it more difficult for them to secure strong representation. (Barnes’s counsel is the renowned First Amendment lawyer and Cato adjunct scholar Bob Corn-Revere.) The district court, while acknowledging that some rights were violated, only offered half-measures as a remedy. The Eleventh Circuit has now corrected that mistake, sending university officials the loud, clear message that constitutional protections don’t stop at the edge of campus.

Michael F. Cannon

According to U.S. News & World Report

[B]rokers say they do hear from clients who are eligible for subsidies – which are based on household income and not assets – but want no part of them. Health officials have been boasting that 6.6 million people have enrolled in health coverage through state or federal marketplaces created under the Affordable Care Act, but in sharp contrast stands a small group of Americans who say they want nothing to do with the plans, even if they would save money. Their reasons vary: Some are protesting Obamacare, while others simply feel it’s unethical to accept taxpayer dollars to pay for health insurance…

For [Kansas City resident Grace] Brewer, buying a plan on her own would mean she would not have enough to pay for housing, she says, so she chose not to be insured this year and will have to pay a penalty in her 2016 tax filing that is likely to be 2 percent of her income. She has no dependents, is healthy, does not use prescriptions and says she has been careful about her health choices, not overusing medical care.

“I am frustrated. I am angry. And I say ‘no’ to the exchanges,” she says.

Some people are turning down the subsidies because they don’t need them:

Complicating the ethical question is that some people who qualify for subsidies based on their income could afford to pay their own way. “There is no question that we are enrolling people through these programs who would otherwise be considered middle-class or even affluent,” says Ed Haislmaier, a senior research fellow for health policy studies at the right-leaning Heritage Foundation think tank. “We are seeing people with enrollment in these programs that have significant assets, but for whatever reason – usually a temporary reason – fall below the income line.” 

Those reasons could range from early retirement to a midcareer job change. But whatever the case, some of those who are turning down subsidies are aware others are gaming the system, and they think it’s wrong.

“I won’t be a part of it,” Brewer says. “I don’t think it’s right. I don’t think it’s ethical, but the system has gotten so complicated that people can take advantage of those things.”…

The fact that the subsidies are causing controversy among the very people they’re intended to help is “evidence that the government doesn’t do charity very well,” says Michael Cannon, director of health policy studies at the libertarian Cato Institute think tank. 

“Prior to Obamacare, the federal government was subsidizing all sorts of people who did not need health insurance subsidies,” he adds, referring to services like the Children’s Health Insurance Program, Medicaid and Medicare, the government’s health program for seniors. “With Obamacare, we are subsidizing even more people who don’t need assistance.”

Something to keep in mind when contemplating the impact of King v. Burwell.

Doug Bandow

When I was growing up, the draft was an ugly rite of passage for young men.  But when I turned 18 no “Uncle Sam wants you” notice arrived in the mail. 

America had shifted to a volunteer military.  At the time I didn’t know who to thank for the freedom to choose my future.  But I later met the man responsible while attending Stanford Law School.

Martin Carl Anderson, who died a few days ago, then was in residence at the Hoover Institution.  I thought our encounter was happenstance, but years later Anderson told me that he had been reading my articles in the Stanford Daily and elsewhere and wanted to meet me.

Anderson left to help set up the Ronald Reagan campaign operation in March 1979.  As I approached graduation he asked me to join the campaign. 

Anderson was a stellar example of an intellectual able to translate detailed academic research into policy ammunition.  He received his PhD in 1962.  Five years later he began advising Richard Nixon, ending up as a special assistant to President Nixon before joining the Hoover Institution in 1971.

As I wrote in American Spectator online:  “Anderson had many interests, but one overriding philosophy:  He believed in individual liberty.”  He began his policy career with an explosive attack on urban renewal, through which slums would be cleared and new communities created. No surprise, the effort was extraordinarily expensive and socially destructive.  In 1967 the MIT Press published The Federal Bulldozer:  A Critical Analysis of Urban Renewal, 1949-1962

Anderson was a draftee who turned his intellect and energy to ending conscription.  He seamlessly joined policy research and political maneuver, selling Nixon on the virtues of a volunteer military. 

Anderson left the Nixon administration before its ugly implosion, but returned to government with Reagan to address the AVF’s deficiencies, an effort in which I was involved as his assistant.  However, Anderson’s most important work for Reagan was shaping the economic agenda. 

Although Anderson was loyal to those he served—he never published a kiss-and-tell memoir—he did not let personalities get in the way of principle.  When Nixon proposed essentially a negative income tax in the guise of the Family Assistance Plan, Anderson brought his accustomed skills into opposition.  In 1978 Hoover published Anderson’s Welfare:  The Political Economy of Welfare Reform in the United States

Anderson’s most important work after leaving the Reagan administration was explaining and amplifying President Reagan’s legacy.  In 1988 Anderson published Revolution:  The Reagan Legacy, a wonderfully readable account of what Reagan’s success and presidency meant.  In 2001 Anderson and his wife Annelise joined historian Kiron K. Skinner to produce Reagan, in His Own Hand:  The Writings of Ronald Reagan that Reveal His Revolutionary Vision for America

Like most everyone in or seeking high political office Reagan employed ghost-writers on occasion.  But the Andersons found a treasure trove of the articles and scripts in Reagan’s own hand.  The latter wrote the vast majority his material from start to finish.  Two years later the two Andersons along with Skinner released Reagan:  A Life in Letters, revealing fascinating glimpses of the former president’s life through the letters he wrote.

Even more significant was Reagan’s Secret War:  The Untold Story of his Fight to Save the World from Nuclear Disaster, written by both Andersons.  Declassified documents demonstrated Reagan’s determination to eliminate the threat of nuclear war.  Reagan abhorred what he called the Evil Empire for all the right reasons, but worked with Mikhail Gorbachev to end the Cold War.

Although Anderson operated at the pinnacle of the American political system, he was an ideas man uncomfortable with typical bureaucratic infighting.  He left the Reagan administration after little more than a year and then concentrated on offering advice as an outsider.

In recent years Marty, as I will always know him, and I only talked occasionally, and not nearly enough.  But he fought the good fight until the end.  We are all better off because of his manifold efforts.  Marty, RIP.

Simon Lester

Some libertarians have been expressing concern about particular aspects of trade negotiations, often focusing on provisions relating to intellectual property. Here’s Jesse Walker of Reason:

“Free trade” agreements frequently include details that don’t have anything to do with freeing trade. When intellectual property enters the picture, the rules typically make trade more rather than less restrictive. That certainly seems to be the case with the TPP: Provisions in the leaked drafts would extend copyright terms, impose DMCA-style restrictions on circumventing copy protection, and otherwise take a maximalist approach to intellectual property. There are efforts to add tighter IP regulations to the Transatlantic Trade and Investment Partnership too.

I already tend to be skeptical about trade agreements as a path to freer trade, but I recognize and respect the argument that they do more good than harm. That argument is much harder to maintain, though, when the deals are loaded down with provisions like these. If fast-track authority makes such rules easier to pass, then fast-track authority is something I’m happy to do without.

I get what he is saying about intellectual property, and I have criticized this aspect of trade talks myself. But as my colleague Dan Ikenson says, we should consider whether these deals are “net liberalizing.”  In this regard, I think trade deals have the potential to do a lot of good, in ways that people may not be aware of.  Here’s an example from the negotiations between the U.S. and EU.  The EU has proposed new disciplines on government subsidies, in which it states:

subsidies given to support insolvent or ailing companies without a credible restructuring plan belong to some of the most harmful types of subsidies and have the potential to have an adverse effect on trade and investment relations.

Now, translating such sentiments into concrete rules can be difficult, but I like the idea of pushing for limits on subsidies. I can’t guarantee that anything will come out of the EU proposal, but I’m glad they are pursuing it.  To me, a trade agreement that offers additional disciplines on subsidies is something of great value.

(Some of you might be thinking, wait, how come the EU is proposing constraints on subsidies?  Aren’t they the worst abusers, with their farm subsidies, Airbus subsidies, etc.?  Here’s my sense of what is going on:  In addition to the concerns about bailout-type subsidies mentioned in the quoted text, the EU has some pretty strict internal rules governing when its member states can provide subsidies.  As a result, the Europeans get annoyed at subsidies offered by U.S. states, and are looking for ways to impose constraints on these and other U.S. subsidies).

Doug Bandow

The slaughter at the French magazine Charlie Hebdo brought hundreds of thousands of marchers and scores of world leaders onto the streets of Paris.  The killings demonstrate how the destructive phenomenon of religious persecution is spreading from Third World dictatorships to First World democracies. 

Religious minorities long have faced murder and prison around the world.  Now the freedom not to believe by majorities in Western democracies is under attack.

As I write in Forbes online:  “Free expression goes to the very essence of the human person.  While good judgment tells us not to express every thought we have, as moral agents responsible for our actions we must be free to assess the world and express ourselves in vibrant public debate.  For religion there is no greater affront than to inhibit people’s search for the transcendent and liberty to respond, yay or nay, to God’s call.” 

Western governments must protect the liberties of their peoples.  Members of no group, Muslim or other, should be treated as enemies.  However, the problem of violent religious intolerance is almost uniquely Muslim. 

Christians finally learned to stop killing over spiritual differences.  Today in most countries in which Muslims constitute a majority religious minorities suffer discrimination and persecution. 

There is no disguising reality.  If you are a Baha’i, Jew, Ahmadi, Christian, Yazidi, Hindu, wrong kind of Muslim, or atheist you likely will find life always difficult and often threatening in Iran, Iraq, Pakistan, Saudi Arabia, Somalia, Afghanistan, Libya, Egypt, Indonesia, Brunei, Malaysia, Sudan, Yemen, Maldives, Syria, and others. 

Some Muslims point to blowback from promiscuous U.S. intervention.  Washington has supported dictators, harmed innocents, and wrecked societies throughout the Islamic world.  However, these are acts of a nation state, not a religious faith.  And while that behavior might explain (though not justify, since nothing warrants the murder of civilians) attacks on U.S. targets, it does not illuminate why, say, Pakistani mobs burn to death Pakistani Christians.

The thugs who cut down a dozen Charlie Hebdo are the international cousins of those who murder alleged blasphemers and apostates in Muslim nations.  Earlier this year the U.S. Commission on International Religious Freedom reported that victims of the ongoing attack on free expression include people from Bangladesh, Egypt, Indonesia, Iran, Kazakhstan, Pakistan, Saudi Arabia, Tunisia, and Turkey.  Nowhere are blasphemy laws more used and abused than in Pakistan. 

In its study on the issue USCIRF explained how the law encourages abuse:  “The so-called crime carries the death penalty or life in prison, does not require proof of intent or evidence to be presented after allegations are made, and does not include penalties for false allegations.”  Judges prefer not to hear evidence, since doing so could be construed as blasphemy.  A claim usually is sufficient to send someone to prison, making the law a common weapon in personal and business disputes.

Non-Muslims are peculiarly vulnerable.  Many people do not reach trial:  mobs have killed more than 50 people charged with the offense.  And thugs like those who gunned down the Charlie Hebdo staffers have murdered judges who acquitted defendants, attorneys who represented those accused, and politicians who proposed reforming the laws.

There isn’t much Washington can do to protect liberty in other countries, but the U.S. government must insist that the liberties of Americans are non-negotiable and will be defended.  More broadly, the Charlie Hebdo murders should remind policymakers that religious liberty is not an afterthought. 

A government which refuses to protect individuals in exploring the transcendent is more likely to leave other essential liberties unprotected.  People in Muslim-majority nations, where religious persecution today is at its worst, must come to peacefully accept those who believe differently both at home and abroad.

Chris Edwards

Another day, another news article supportive of raising the federal gas tax. This time it’s the Wall Street Journal. The article notes that there is strong public opposition to raising gas taxes, but then proceeds to give us the arguments in favor of it, but none against. So for the next reporter writing about raising the gas tax, here are some policy reasons against it.

Let me zero in on two points made by the Journal story.

First, it says, “elected officials from both parties are treading into the debate cautiously, framing the issue around improving highway safety and local economies by repairing a growing backlog of troubled roads and bridges.”

I don’t think that’s true about a “growing backlog.” In fact, our highways and bridges appear to be improving, not getting more “troubled.” Federal Highway Administration (FHWA) data show that of the nation’s 600,000 bridges, the share that is “structurally deficient” has fallen from 22 percent in 1992 to 10 percent in 2013. The share that is “functionally obsolete” has also fallen.

Meanwhile, the surface quality of the interstate highways has steadily improved. A study by Federal Reserve economists examining FHWA data found that “since the mid-1990s, our nation’s interstate highways have become indisputably smoother and less deteriorated.” And they concluded that the Interstate system is “in good shape relative to its past condition.”

The Journal says, “The federal levy … has stood at 18.4 cents a gallon since the first year of the Clinton administration, despite multiple proposals over the years to raise it. Over the past decade, Congress has approved higher spending for highway construction but hasn’t raised the tax to pay for it, creating periodic funding crises.”

It’s true that Congress has not raised the gas tax recently, but that’s because the American people have been consistently against it in polls. The problem is that Congress has gone ahead and jacked up spending anyway. So we don’t have a “funding” crisis, but a “spending” crisis.

Gas tax supporters say that it is time to raise the tax because it has not been raised in two decades. What they leave out of the story is that the gas tax rate more than quadrupled between 1982 and 1994 from 4 cents per gallon to 18.4 cents, as shown in the chart below the jump. Thus, looking at the whole period since 1982, federal gas tax revenues have risen at a robust annual average rate of 6.1 percent (based on Tax Foundation data). So, again, we have a spending crisis, not a funding crisis.

Jason Bedrick

Last month, the Orthodox Union, a prominent Jewish organization, launched a campaign advocating for private school choice policies. That raised hackles from Americans United for Separation of Church and State (AU), which condemned the chutzpah of the Orthodox Union to work for equal funding for children in their community:

“It [the campaign] will require us to stop being timid,” [Orthodox Union executive vice president Allen Fagin] said. “We pay our taxes, and our kids are also entitled not to be left behind.”

That statement, of course, is only half-true: Fagin’s constituents do pay their taxes, and their children are indeed entitled to an education. But that’s exactly what public schools are for. OU’s campaign relies on the same faulty logic we’ve seen from advocates of voucher programs: Because parents pay taxes, they should be able to ask every other taxpayer in the state to subsidize their child’s religious education. It’s a clear constitutional violation. […]

It’s unconscionable (and exceptionally brazen) for OU to demand that further funds be siphoned away from public schools intended to serve entire communities in order to promote their private religious agenda. If Orthodox parents want to place their children in religious schools, that’s their right. And it’s their responsibility to pay for it.

In reality though, it’s the idea that so-called “public” schools are actually “public” that is only half-true. District schools are technically open to any student whose parents can afford to live in the district, but they are certainly not “intended to serve entire communities.” For example, they are not intended to serve Orthodox Jews or others like them who have a different vision of education. When everyone is forced to pay for one school system and decisions about education are made via a political process, there will be winners and losers.

Let’s consider an imaginary “public” school district where there are three groups of people: Hobbits, Ewoks, and Terrans. Each groups has very different and passionately held views about what should be taught in school and how it should be taught. All three groups are required to pay taxes to support the district school, which is ostensibly nonpartisan, nondenominational, and open to all. However, the majority of the district is Terran so the school reflects the Terran preferences. When the Hobbits and Ewoks open their own schools and seek equal per-pupil support from the local government, the indignant Terrans respond that the district school is meant for everyone. “It’s your right to open your own schools,” explain the Terrans, “but it’s your responsibility to pay for them.” Thus the majority brazenly forces minority groups either to abandon their values or to pay for two school systems. And lower-income minorities may have no choice at all.

Sadly, this is far from hypothetical. Indeed, it’s the unconscionable status quo that the AU defends. As my colleague Neal McCluskey has observed, “Public schooling politics is a zero-sum game: all people pay in, but only those with political power get control.”

Familiarizing oneself with the history of American education makes clear just how divisive public schooling has been. For instance, see the Philadelphia “Bible Riots” or the textbook war in Kanawha County, WV. And just because something is local- or state-controlled doesn’t free it from conflict. Cato’s still-under-construction public schooling “battle map” pinpoints well over 800—and growing—contemporary battles over basic values and rights fought at the school, district, and state levels. And that doesn’t include constant combat over budgets, teacher evaluations, school start times, math curricula, and on and on.

Ultimately, understanding why public schools are the source of unceasing conflict—and why it worsens the more that control is centralized—requires the simplest of logic: One government school system cannot possibly serve all, diverse people equally.

The voucher system that AU maligns is actually a solution to the social strife and unfairness inherent in government schooling. When students who opt out of the district school receive vouchers to attend the school of their choice, no family is forced to send their child to a school that does not reflect their values. Parents are therefore not forced into conflict with each other over what the schools should teach, nor are minority groups expected to fund schools that are anathema to them while paying for their own schools. Fortunately, contrary to AU’s claims, the U.S. Supreme Court found that school voucher systems are in harmony with the U.S. Constitution.

Nevertheless, the AU still has a legitimate concern about coercion. Why should everyone be forced to fund schools that teach values that some find abhorrent? As Thomas Jefferson argued, “to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves and abhors, is sinful and tyrannical.” The AU has a point when they object to forcing atheists to pay for religious schools, or forcing members of one religion to pay for schools run by members of another denomination.

Of course, if the AU is truly concerned about coercion, they should also be concerned about the coercion inherent in government-run district schools. Why should the Hobbits and Ewoks be forced to fund “public” schools that teach Terran values? And why should devout Christians, observant Jews, or pious Muslims be forced to subsidize district schools that teach values they might abhor?

A voucher system is superior to a government-run school system because vouchers reduce social conflict and empower parents to choose schools aligned with their values. But they fail to eliminate coercion. An education system that truly cherishes fairness and respects diversity would empower parents to choose the schools their children attend while also respecting the freedom of conscience of taxpayers. Fortunately, more than a dozen states have moved in that direction by adopting scholarship tax credit laws, which grant tax credits to donors to scholarship organizations that aid families who opt out of the district school system. As Andrew J. Coulson has explained:

Unlike the funding of public schools, which is compulsory for all taxpayers, participation in [a scholarship] tax credit program is voluntary. If an individual chooses not to donate to [a scholarship organization], his taxes are collected just as they have always been, and those dollars cannot be used for any sectarian purpose. Furthermore, if a taxpayer does choose to make a donation, he is free to select the [scholarship organization] most consistent with his own values.

Sadly, Americans United has repeatedly opposed scholarship tax credit laws in the court of public opinion and courts of law. We hope that someday they will realize that scholarship tax credits are the best policy to achieve their pluralistic goals.

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

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.

As you may have guessed from the title of this post, this week we call attention to a few articles around the web examining the common sense behind a tax on carbon. It turns out there is none.

From time to time, there is a pitch made to conservatives that a “revenue neutral” carbon tax would be a win-win for everyone. It would help mitigate climate change while at the same time spur economic activity. Even if you don’t care about the former, you’re bound to like the latter. Or vice versa.

To try to win some new carbon tax recruits in the incoming Republican-led Congress, two recent high profile articles—one in the Washington Post by one-time Obama economic adviser Larry Summer and the other on National Review Online by the Hudson Institute’s Irwin Stelzer—make that argument, with embellishments.

If a carbon tax sounds too good to be true, then your intuition is correct.

Robert Murphy, an economist for the Institute for Energy Research, provides the technical details, collected from the economic literature, as to why the economic gains don’t actually come along with a carbon tax as they are being promised. In his National Review Online article “Taxing Carbon Won’t Help the Economy,” Murphy rebuts many of Stelzer’s claims. Ultimately, he delivers this sage advice:

Far from offering something for everyone, a revenue-neutral carbon tax advances the policy agenda of the environmental Left at the expense of the American people. The economic theory of a carbon tax is unmoored from political reality. In practice, carbon-tax supporters have shown that they would rather spend the revenue on pet projects than reduce taxes, thereby hindering economic growth. Conservatives should resist the temptation to give central planners in Washington more money to waste and more control over our economic affairs.

Another take on the carbon tax is offered by our good friend, the always insightful Marlo Lewis, from the Competitive Enterprise Institute. Marlo takes on Summers’ “Oil Swoon Creates the Opening for a Carbon Tax” with his own “Oil ‘Swoon’ Is Not an Argument for Carbon Taxes” over at the blog for Globalwarming.org.

Marlo leads off with this bit of depressing (yet predictable) news,

It was inevitable. As soon as consumers and the economy start to enjoy significant relief from a decade of pain at the pump, the political class clamors for higher gas taxes and new carbon taxes.

Marlo then takes us through the long list of supposed “benefits” of a carbon tax, tearing each one down along the way. From “Is carbon energy a tax haven?” to “Do we overuse fossil fuels?” to “Would a carbon tax make energy markets more efficient?” Marlo’s answer is always the same, “No.”  He summarizes:

Summers makes a clear, concise, but unpersuasive case for a carbon tax. The holes in the argument are not his doing but rather arise from the thesis he propounds. The case for a carbon tax fails because:

  • American energy is not undertaxed or under-regulated.
  • An underperforming economy and anti-market policies already restrict oil consumption.
  • Policymakers do not know the sign (positive or negative), much less the monetary impact, of an incremental ton of CO2, so even a small carbon tax could do more harm than good.
  • Carbon taxes are regressive and would be piled on top of existing taxes and regulations rather than replace them.
  • Even a very aggressive carbon tax imposing trillion-dollar costs on the economy would have no discernible climate impact for decades to come.
  • Consumers are finally getting a break from high gasoline prices. Having endured years of energy-price windfall losses, they should now be allowed to enjoy windfall gains.

Also adding to the anti-carbon tax sentiment is Heritage Foundation economist Nicolas Loris. Loris highlights the results of an economic analysis of a carbon tax that the Heritage Foundation recently conducted. According to Loris:

Using the same model as the Energy Information Administration, we modeled what a carbon tax equivalent to the federal government’s social cost of carbon estimate would do to the economy between 2015 and 2030 and found:

  • An average employment shortfall of nearly 300,000 jobs,
  • A peak employment shortfall of more than 1 million jobs,
  • 500,000 jobs lost in manufacturing,
  • Destruction of more than 45 percent of coal-mining jobs,
  • An aggregate GDP loss of more than $2.5 trillion (inflation-adjusted), and
  • A total income loss of more than $7,000 per person

Loris has this most useful suggestion:

Here’s a better deal: Let’s cut the taxes we don’t like and in turn everyone will get more economic growth, more jobs with higher wages and a better standard of living for all Americans. Such a policy will provide the world with more wealth and resources to tackle the problems of the future, whether they’re climate-related or not.

These are three good counters to arguments for a carbon tax that everyone should be familiar with. So, to stay in the know, you ought to have a look!

Walter Olson

At my Cato blog Overlawyered I’ve been pulling together month-by-month highlights of stories from last year. I’m currently up to October in the series. Here’s a small sampling of my favorites: 

Read the whole series here.

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