Policy Institutes

Brink Lindsey

Here are the latest entries in the Cato Institute’s online forum on reviving growth (see here for some more background about the forum):

1. Tyler Cowen contends that foreign policy can have a major impact on long-term growth.

2. Heather Boushey argues that a national program of paid family leave will boost labor supply and therefore growth.

3. Eli Dourado proposes incentive pay for Congress.

4. Peter Van Doren cautions that there are no easy answers.

 

 

Doug Bandow

The president has added ground forces to the battle in Iraq and the military has suggested introducing thousands more. His officials reportedly have decided to focus on overthrowing Syrian President Bashar al-Assad in the name of fighting the Islamic State.

The U.S. has been back at war in the Middle East for more than two months. The results?

The administration’s vast coalition of 60 nations is mostly a PR stunt. The Arab states have done little in the air and nothing afoot. Most flagrantly AWOL is Turkey.

Nor has the administration’s scattershot bombing campaign had much effect. By one count U.S. strikes have killed 464 Islamic State personnel. However, the estimated number of ISIL fighters trebled to as many as 30,000 just a couple weeks into Obama’s war.

Moderate Syrian rebels favored by the administration have been routed in that country’s north. Many fighters defected or fled while abandoning their heavy weapons provided by Washington.

The Free Syrian Army, the biggest Western-oriented insurgent group, also is losing fighters, largely to al-Nusra. Yet, explained former U.S. ambassador Robert Ford:  some Syrians “are burning American flags because they think we are helping the regime instead of helping them.” Residents of Raqaa, the ISIL stronghold bombed by American forces, blame Washington for higher food and fuel prices.

Iraq’s Shiite majority has formed a new government—handing the Interior Ministry to a hardline Shia faction responsible for past atrocities against Sunni civilians. Moreover, last week reports emerged that the Islamic State and al-Nusra Front agreed to stop battling each other and even to fight together.

Through everything the Islamic State is unbowed, as Washington makes ever more enemies by intervening yet again in someone else’s quarrel.

The president already has doubled U.S. boots on the ground, sending in another 1500 advisers to Iraq. Gen. Martin Dempsey, Chairman of the Joint Chiefs of Staff, stated in September that as many as 15,000 U.S. troops might be needed to retake Iraqi and Syrian territory seized by ISIL. Last week he said that the administration was considering sending American personnel to cooperate with Iraqi troops in the battle for Mosul and to guard that nation’s border.

Equally foolish, administration officials reportedly want to shift their focus to wrecking the most competent military force opposing ISIL:  the Syrian army. Focusing on Damascus would be twice stupid.

First, it would mean essentially doubling down on the policy of supporting the weakest faction in Syria, whose members have been defecting to the radicals. Second, it would entail targeting what today is the strongest force resisting the Islamic State. Then U.S.-supported insurgents would weaken the Assad regime, making a ISIL/al-Nusra victory more likely.

Like a second marriage, Washington’s latest Middle Eastern excursion represents the triumph of hope over experience. It is hard to point to a military intervention or other form of meddling which has worked well. As I point out on Forbes online, “Virtually every U.S. action has resulted in a worse reaction, including by al-Qaeda and now the Islamic State—the latter but one of many ill consequences of the Iraq invasion.”

Despite this extraordinary record, the administration would have us believe that it can simultaneously destroy ISIL, rid Iraq of sectarianism, replace Bashar al-Assad with a Syrian Thomas Jefferson, contain Iranian influence, and convince a gaggle of hostile Middle Eastern states to work together to further America’s ends. All we need to do apparently is put more ground forces into Iraq and better target Assad.

President Obama and others in Washington should learn from past mistakes, which are almost too many to be numbered. The most serious may be the belief that the U.S. can “fix” the Middle East. America can’t. It’s time to give up trying to do so.

Nicole Kaeding

Medicare fraud is rampant. The Government Accountability Office (GAO) estimates fraud compromises 8 percent of total expenditures, or $44 billion annually. Outside estimates are as high as $120 billion. A recent report from the Department of Health and Human Services Inspector General highlights just one of the many examples of waste, fraud, and abuse within the system: Medicare paying for drug coverage of deceased beneficiaries.

Medicare Part D provides prescription drug coverage to 39 million seniors costing taxpayers $59 billion annually, net of premiums paid by seniors. In 2013 Medicare paid for 1.2 billion prescriptions.

The Inspector General’s report details the fraud: “In 2012, Medicare paid for 348 HIV [human immunodeficiency virus] drugs for 158 deceased beneficiaries. The total cost for these drugs was $292,381.” The report studied HIV drugs as they are targets for abuse since they are so expensive.

These drug claims were not isolated instances. The IG found “each of the 158 beneficiaries had between 1 and 6 drugs dispensed after the date of death; most beneficiaries had at least 2.” Medicare spent $7,160 for three prescriptions for one patient’s drugs in Florida. They were approved on two separate occasions after his death. Medicare approved three prescriptions for a patient in Michigan costing $5,616.

Approvals occur because of a delay in receiving information about a beneficiaries death. This results in a period where the recipient is dead, but Medicare’s system still consider the patient to be alive.

This is not the first time that the Inspector General has criticized Medicare’s handling of deceased beneficiaries. In 2011 the Inspector General found that Medicare Part C and D paid $21 million for claims by deceased beneficiaries.

The Inspector General acknowledged that the total amount of fraud was miniscule compared to total Medicare spending. HIV drugs represent just one-quarter of one percent of Part D prescriptions. But the approval process is the same for all Part D drugs meaning other drugs are also vulnerable to improper payments for deceased individuals. The report says “A change in CMS’s practice would affect all Part D drugs, not just HIV drugs. Considering the enormous number of Part D drugs, a change in practice could result in significant cost savings for the program and for taxpayers.” An estimate of cost savings is not included, but it would likely be in the millions.

Medicare does plan to fix the system for dead beneficiaries, but with billions  wasted on Medicare every year, stopping the tide of improper payments seems unlikely without major structural reform of the program.

Daniel J. Mitchell

Notwithstanding the landslide rejection of Obama and his policies in the mid-term election, I don’t think this will produce big changes in policy over the next two years.

Simply stated, supporters of limited government do not have the votes to override presidential vetoes, so there’s no plausible strategy for achieving meaningful tax reform or genuine entitlement reform.

But that doesn’t mean that there won’t be important fiscal policy battles. I’m especially worried about whether we can hold on to the modest fiscal restraint (and sequester enforcement) we achieved as part of the 2011 debt limit fight.

Part of that victory was already negotiated away as part of the Ryan-Murray budget deal, to be sure, but there are still remaining budget caps that limit how fast politicians can increase so-called discretionary spending.

According to the Congressional Research Service, budget authority for defense is allowed to rise from $552 billion in 2014 to $644 billion in 2021. And budget authority for domestic programs is allowed to climb from $506 billion to $590 billion over the same period.

I think that’s too much spending, but the interest groups, lobbyists, cronyists, politicians, bureaucrats, and other insiders in Washington would like much bigger increases. And you won’t be surprised to learn that the Obama Administration also wants to bust the spending caps.

This is why I’m very worried that some Republicans are undercutting their negotiating position by saying that there will be no government shutdowns.

Let me explain how these issues are connected. At some point next year, Republicans on Capitol Hill will be responsible for putting together spending bills for the following fiscal year. They presumably (or am I being too optimistic?) will put together budget bills that comply with the existing spending caps.

Obama will then say he will veto such legislation and demand that Republicans unilaterally surrender by enacting bigger spending increases and also gutting sequestration. The GOP will then have two options:

A) they can surrender.

B) they can continue to send the President spending bills that comply with the law.

But if they go with option B and the President uses his veto pen, then the government shuts down. And even though the shutdown only occurs because the President wants to renege on the deal he signed in 2011, Republicans are afraid they’ll get blamed.

The Washington Post reports on this fearful attitude, citing the anti-shutdown perspective of the incoming Senate Majority Leader.

A day after he won reelection and Republicans retook the Senate, Sen. Mitch McConnell (R-Ky.) left no doubt… “Let me make it clear: There will be no government shutdowns…,” McConnell said in a valedictory news conference in Louisville.

But that view irks some lawmakers who worry Obama will then have a blank check.

The first battle may revolve around immigration, but - as noted above - I’m more focused on fiscal fights.

But McConnell could be tripped up by the same conservative forces that have undercut Boehner since he became speaker in 2011. The issue this time is Obama’s expected executive action to overhaul the nation’s immigration system. …conservatives…have urged McConnell and Boehner to fight back by allowing only a short-term budget bill that would keep government agencies open until early next year. These conservatives believe that once Republicans hold both chambers of Congress next year, they can force Obama to accept a budget bill that would prohibit him from implementing his executive order on immigration.

At this point in the article, the reporter, Paul Kane, engages in some anti-factual editorializing.

…the days of brinkmanship could return with a vengeance, and the government could once again be shut down. That could provide a devastating blow to Republicans, hurting their chance to win back the White House and hold on to their relatively slim Senate majority in 2016.

Huh?!? Republicans just won a landslide, so why are we supposed to believe last year’s shutdown was “a devastating blow”?

Mr. Kane also refers to a shutdown later in the article as a “fiscal calamity” even though he shows no evidence (because there wasn’t any) that government shutdowns cause any damage.

But there is at least one person who is convinced by this narrative. And that person, Senator McConnell, is preemptively trying to convince other GOP Senators to give Obama the upper hand in any fiscal negotiations.

McConnell’s advisers are worried enough that by Friday evening they were circulating a memo showing how damaging last year’s shutdown was to the Republican Party — an effort designed to counter conservatives who point to this month’s triumphant election as proof that the shutdown did little damage. …The memo showed that in Gallup polling from late 2012 until this month, …Republicans held steady just a couple of points lower through 2012 and most of 2013 — until the 16-day shutdown of the federal government in October 2013. In just a few weeks, the McConnell chart shows, Republican favorability plummeted 10 points. It has taken a year for it to climb back to where it was before the shutdown.

But who cares about “favorability” ratings. The poll that should really matter to Republicans is the one that takes place on election day.

And that seemed to be good news for the GOP.

Here’s some of what I wrote in my post about lessons that could be learned from the 2014 elections.

Back in 2011, I explained that Republicans could play hard ball, largely based on what really happened during the 1995 government shutdown. And in 2013, I again defended a shutdown, pointing out that voters probably wouldn’t even notice that some government offices were closed, but they would remember that the GOP was branding itself as the anti-Obamacare party. The establishment, by contrast, thought the shutdown was a disaster for Republicans. …many…Republicans felt the same way, excoriating Senator Cruz and others who wanted a line-in-the-sand fight over government-run healthcare. The moral of the story isn’t that shutdowns necessarily are politically desirable, but rather that it’s very important for a political party to find visible ways of linking itself to popular causes (such as ending Obamacare, fighting big government, etc).

At least one person agrees with me. Jeffrey Lord, writing for the American Spectator, points out the GOP establishment was wrong about the political impact of the 2013 government shutdown.

The whole event was giving prominent Republicans in and out of office the political willies. …Republican senators, congressmen, governors, ex-office holders, potential presidential candidates, lobbyists and pundits…were spreading the word. That word? …it was some version of curtains for the GOP. The party would be toast. …they all got it wrong. Not just wrong, but Big Time Wrong. A week ago the Republican Party — barely a year away from the government shut down these folks were bewailing in various terms as bad strategy that “will lose more” for Republicans than Democrats — won a blowout election. …Will Republicans learn anything here?Do you think Mitch McConnell makes the connection between the government shutdown of 2013 and the fact that he is about to become Senate Majority Leader?

To be fair, we don’t know what would have happened if there wasn’t a shutdown in 2013, so maybe the GOP still would have taken the Senate.

But there’s also no doubt that the GOP benefited by having a big public fight about Obamacare. Voters didn’t remember the shutdown, but they did remember that Republicans were against the President’s government-run healthcare scheme and they remembered that Democrats were for it.

I have no idea whether that made a difference in one Senate race of six Senate races, but Obamacare clearly was an albatross for Democrats.

In closing, I want to point out that there are limits to a shutdown strategy.

Picking a fight (or, more accurately, refusing to surrender to Obama) in 2015 is almost surely a winning strategy. But having the same fight in October of 2016 probably wouldn’t be very smart, particularly since the establishment press would do everything possible to spin the fight in ways that advance Hillary Clinton (or some other left-leaning presidential nominee).

In other words, context matters. Pick the right fight.

But the bottom line is that Republicans - assuming they don’t intend to acquiesce on every single issue - must be prepared to let Obama veto spending bills and shut down the government.

Returning to the American Spectator story, Ted Cruz may not be very popular with some of his colleagues, but I think he made an unassailable point about what happens if the GOP unilaterally disarms.

Cruz…asked them for their alternative. Cruz paused, then said that the response he got was “the sound of crickets chirping.”

P.S. One reason why Republicans are skittish about shutdowns is that they think they last the 1995 fight with Bill Clinton. But if you lived through that battle (or if you look at contemporaneous news reports), it’s clear the Republicans had the upper hand.

P.P.S. Here are the five lessons I shared immediately after the 2013 shutdown fight.

P.P.P.S. If you want to enjoy some shutdown humor, click hereherehere, and here. And if you prefer sequester cartoons, click here, here, here, here, here, and (my favorite) here.

Jason Bedrick

“I thought he was going to shoot me.”

That’s the text message that a mother received from her terrified child at Jewett Middle Academy in Winter Haven, Florida. But the child wasn’t describing a psychotic school shooter. It was a drill. As the local CBS affiliate reported:

Students at Jewett Middle Academy said they were terrified when police officers burst in the doors for a planned active shooter drill – but students and teachers are irked they were not told ahead of time.

Seventh-grader Lauren Marionneaux told WTVT-TV that when the officers burst into her class with an AR-15, she was in fear for her life.

“We actually thought that someone was going to come in there and kill us,” the station quoted her as saying.

In the wake angry protests from parents, students, and teachers, school officials explained that the secrecy surrounding the drill was necessary for the students’ safety:

“Unfortunately, no one gets an advanced notice of real life emergencies,” Polk County Public Schools spokesman Jason Gearey said in an e-mailed statement to The Washington Post. “We don’t want students to be scared, but we need them to be safe.”

They don’t want students to be scared, but unannounced active shooter drill is guaranteed to scare kids. Moreover, as Lenore Skenazy points out, such drills could actually put people in danger:

Of course, the authorities neglected to notice that no one sets the school on fire to create more realistic fire drills. Nor do they drag in giant wind machines to replicate the feel of an impending tornado.

The fear that teachers might suffer heart attacks, that kids might experience psychotic breakdowns, that someone with his own weapon might shoot real bullets in defense—none of that seemed to occur to our peacekeepers. Nor did the notion that distraught parents might race frantically to the school, endangering anyone in their path.

No, these cops were so focused on the most horrific, least likely crime that nothing else mattered.

School shootings are every parent’s worst nightmare, but fortunately they are exceedingly rare. As I explained back in September, fewer than one in 10,000 schools have had a shooting in the last two years, and fewer than one out of every 2,273,000 students per year are killed at school including all types of violence, not just shootings. By contrast, according to National Geographic, the odds of being hit by lightning in a given year is one out of 700,000.

Some experts have also questioned the efficacy of unannounced active shooter drills. In the Wall Street Journal, a former SWAT officer who conducts seminars to teach civilians how to deal with mass-shooting scenarios panned the idea: “There ends up being zero learning going on because everyone is upset that you’ve scared the crap out of them.” The Journal also reported several other instances of drills gone awry. In one drill at a nursing home, a police officer posing as an armed intruder forced a nurse into an empty room at gunpoint where “she tearfully begged for her life.” She was so traumatized that she quit her job. Other drills also left civilians traumatized or even physically injured:

The confusion that sometimes ensues during drills also can have unintended consequences. In March, a teacher in Boardman, Ohio, filed a lawsuit against local police and school officials, claiming he was unexpectedly tackled by a police officer during a drill at a high school, seriously injuring his hip and shoulder.

Jesse McClain, 60 years old, had volunteered to participate and was playing the role of a “panicked parent” when the officer tackled him without warning, his lawyer, John O’Neil, said. Boardman Township’s police chief and the superintendent of the town’s school district declined to comment on the incident, citing the lawsuit.

In Florida, a woman filed a complaint in March with state officials on behalf of her sister, a Fort Walton Beach nurse, over a drill at an Okaloosa County Health Department office. According to the complaint, employees weren’t informed about the drill, which involved a police officer firing blanks, and many were “hysterical, crying and shouting.”

As with fires and other hazards, it is important for schools to be prepared for an emergency. But policymakers must keep things in perspective. Keeping kids safe does not require terrifying them.

Alex Nowrasteh

President Obama will soon announce an executive action to defer the deportations of somewhere between 1 million and 4.5 million unauthorized immigrants. Those whose deportations are deferred will be eligible for a temporary work permit through a 1987 provision in the Code of Federal Regulations.

Those who support immigration reform note that any executive action by the President will poison the well for reform, making it impossible for Congress to move piecemeal bills to the President’s desk.  Last year, one of the most effective arguments against immigration reform was that President Obama would not enforce the law as written, a prediction that seems to be borne out with this executive action.  The Wall Street Journal editorial board said it the best:

If he does issue an executive order, we hope Republicans don’t fall for his political trap.  He and many Democrats want Republicans to appear to be anti-immigrant.  They want the GOP to dance to the Steve King-Jeff Sessions blow-a-gasket caucus.

To poison the well of reform there actually had to be water in the well to begin with. I’m not convinced there was.  If there was a serious Congressional effort to reform immigration in the immediate future, then the President’s actions here would totally derail it.

Congress will not act to pass immigration reform if they are acting under threat of the President’s executive action – a threat he has wielded since his 2012 Deferred Action on Childhood Arrivals.  He brought that threat out frequently in 2014, famously announcing that he would delay any such decision until after the midterms.  If Republicans pass a bill under threat of an executive action or in response to it then they look like they’re kowtowing to the President – an untenable position for any individual Republican to be in.

For Congress to act without looking like it is bending to President Obama’s threat, the specter of executive action would have to be credibly removed.  But at this juncture, the President cannot credibly remove his threat of an executive action which means that Republicans in Congress won’t act to reform immigration.

The only conceivable way to remove that threat is for the GOP to block the President’s actions through the budget process.  If the well was not poisoned before that, it probably would be after a nasty budget battle to defund this executive action.  If the executive order is blocked and the well is poisoned due to that nasty battle, then we are right back where we were without any change in immigration enforcement policy.

The President knows that many Republicans in Congress will react to this executive action as a bull would react to the waving of a red flag by a matador:  they will charge.  Obama the matador is banking on that reaction to cement the image that the Republicans are the enemies of immigration reform and the Democrats are friendly to that cause.  However, that does not mean President Obama is solely to blame.  The Republicans in Congress could control their reaction and not charge that red flag, instead charting a different legislative course to nullify the President’s actions without seeming to oppose immigration.  What is that path?

Republicans could override President Obama’s actions by passing piecemeal immigration reform bills that nullify the executive orders but also permanently reform the system in some conservative ways.  Congress could add in provisions that will make their version of immigration reform veto proof.  Republicans could create a larger and less regulated guest worker visa program for migrants of all skill levels without having to cater to union demands, thus destroying the incentive for future unlawful immigration.  Combining that with a conservative version of the DREAM Act or a resurrected KIDS Act would make such a bill veto-proof despite the exclusion of left-wing groups from crafting the legislation.  Because Republicans control Congress, they could exclude every left-wing interest group from the debate on Capitol Hill.

There are two major downsides to this approach.  First, the Republican Congress might instead combine enforcement with some modest legalization and thus fail to address the problem of our restrictive immigration system that actually encourages unauthorized immigration in the first place.  Second, the Republicans might not be able to act together after the executive order is issued.  They might ex ante commit to passing a bill but after the executive order is issued they might change their strategy to one of pure opposition.

A bill would likely legalize far more unauthorized immigrants than the President’s executive action.  If the numbers reported are accurate, this executive action would temporarily defer the deportations of only about 40 percent of unauthorized immigrants while a legislative legalization could cover many more.

The best possible policy outcome is if Congress were to use this opportunity to seriously debate and pass some of the conservative proposals on immigration reform.  The President’s executive action is temporary and can be overturned at whim.  Congress, on the other hand, can offer a permanent solution with far broader appeal and impact.

If the Congress is not likely to seriously debate and pass immigration reform this term, the President’s executive action does not poison the well and would improve immigration policy from a pure policy perspective (I’ll discuss the Constitution below).  If Congress is likely to take up the issue, then this executive action will stymie real reform unless Republicans can channel their opposition into passing some of their own reform bills.

The Constitution

Whether the President’s actions will be constitutional is the thorniest important question surrounding this issue.  The big debate is whether executive prosecutorial discretion in this case rises to the level of nullification of the law.  If Obama’s actions do rise to the level of nullification, then they are unconstitutional.  But if his actions fall short of nullification, then his actions are likely to be constitutional.  On this issue, I defer to my brilliant colleagues who are experts in constitutional law.

Here is a good summary of the legal issues.  The conclusion that that document is worth quoting in its entirety (footnotes excluded):

Regardless of whether it is characterized as “prosecutorial discretion” or “enforcement discretion,” immigration officers are generally seen as having wide latitude in determining when,  how, and even whether to pursue apparent violations of the INA. This latitude is similar to that possessed by prosecutors in the criminal law enforcement context and enforcement officials in  other federal agencies. Whether and how to constrain this discretion has been a recurring issue for some Members of Congress, particularly in light of the June 2011 DHS memorandum on prosecutorial discretion and the more recent DACA initiative. While some Members have expressed support for the DACA initiative, or called for expanded use of prosecutorial discretion by immigration authorities in other contexts, others have sought to prohibit DHS from granting deferred action or extended voluntary departure to removable aliens except in narrow circumstances, or to “nullify” particular policies regarding prosecutorial discretion that have been articulated by the Obama Administration.

The extent to which Congress can constrain the Administration’s exercise of discretion in the DACA context, in particular, may depend on whether a reviewing court characterizes the  underlying authority for the implementation of the program as constitutionally or statutorily based. Congress has broad authority to restrict discretionary acts taken pursuant to statutory delegations, while arguably limited authority, under the doctrine of Separation of Powers, to restrict the President’s exercise of constitutionally based discretion. In addition, the degree of intrusion into executive enforcement decisions may also impact a court’s review of any congressional response. For example, legal precedent suggests that Congress probably cannot directly limit the President’s exercise of discretion by requiring that the executive branch initiate enforcement actions against particular individuals. On the other hand, Congress would appear to have considerable latitude in establishing statutory guidelines for immigration officials to follow in the exercise of their enforcement powers, including by “indicat[ing] with precision the measures available to enforce the” INA, or by prohibiting DHS from considering certain factors in setting enforcement priorities.

However, the existing judicial presumption that “an agency’s decision not to take enforcement action [is] immune from judicial review,” and the deference potentially accorded to an agency’s interpretation of its governing statute, suggests that such statutory guidelines would likely need to be clear, express, and specific. The use of “shall” in a provision of the INA may not, in itself, suffice for a statute to be construed as having provided enforceable guidelines for immigration officials to follow in exercising prosecutorial discretion. Absent a substantive legislative response, Congress may still be able to influence the implementation of DACA or other discretion-based policies by the immigration authorities, including by engaging in stringent oversight over the DHS program or by exercising its “power of the purse” to prohibit DHS and its components from implementing particular policies related to the exercise of prosecutorial discretion that Congress does not support.

To add a wrinkle to this issue, every President since Eisenhower has deferred the deportations of some classes of unauthorized immigrants or paroled some of them into the legal immigration system.  The Immigration Policy Center has put together a wonderful document explaining these previous executive actions.  The most interesting action was President George H.W. Bush’s deportation deferral for about 1.5 million unauthorized immigrants who were the spouses and children of those legalized under the 1986 Immigration Reform and Control Act.

Conclusion

If the President’s executive action is constitutional and would not crowd out a series of reform bills, then executive action would be an unambiguously positive policy development that would reduce the harm caused by our restrictive immigration system.  If the executive action is either unconstitutional or stymies a real immigration reform effort in Congress then the long term harm will outweigh any short term benefit.

Brink Lindsey

The Cato Institute’s special online forum on reviving growth (see here for more details) continues today with the following four essays:

1. Dean Baker argues for free trade in doctors and drugs – by eliminating immigration restrictions and patent protection.

2. Jim Manzi also calls for more high-skill immigration, as well as visionary investments in scientific research and technology projects.

3. Jonathan Rauch proposes a national apprenticeship system.

4. Philip K. Howard makes the case for radical simplification of law.

Ilya Shapiro and Trevor Burrus

In order to create better telecom infrastructure, New York state law gives private telecom firms the power to take private property in exchange for just compensation. Verizon used this power to build terminal boxes on thousands of pieces of private property, thus essentially permanently occupying a part of the properties. Verizon is one of a few companies that enjoy this extraordinary, state-granted privilege to build things on other people’s property without their permission.

Those companies, however, must compensate the owners (at least theoretically) for these sorts of takings of property. Kurtz v. Verizon New York, Inc. arises from a putative class action alleging that Verizon failed to compensate 30,000-50,000 property owners for building terminal boxes on their property. Although Verizon is required to give property owners their “full compensation rights,” the plaintiffs argue that the company continuously flouts this requirement “as a matter of corporate policy and practice,” thus violating both the plaintiffs’ rights to procedural due process—for example, by not even notifying them that their property was being taken—and their Fifth Amendment rights to not have their property taken for public use without just compensation.

The U.S. Court of Appeals for the Second Circuit, however, ruled that the plaintiffs couldn’t proceed with their claims because of a case called Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City (1985), in which the Supreme Court ruled that plaintiffs with takings claims have to seek relief from state courts before proceeding with a federal claim. Otherwise, the case will be dismissed for being not “ripe”—not ready for a federal court to hear the case.

Although this may seem like a small hoop-jumping exercise, this procedural requirement creates an unnecessary and burdensome extra step that can prevent many plaintiffs from ever having their takings claims heard in federal court. No other enumerated constitutional right has a similar requirement. Plaintiffs claiming a First Amendment violation, for example, don’t first have to exhaust their case in state courts.

The plaintiffs are now petitioning the Supreme Court to review the continuing relevance of Williamson County. In a brief supporting the petition, Cato, joining the Pacific Legal Foundation, argues that takings claims are ripe when the taking occurs, not after a plaintiff has gone through the state courts. Moreover, we point out that Williamson County, when combined with other rules of civil procedure, has actually prevented many claimants from ever bringing a case.

After exhausting their claims in state courts, some plaintiffs find that federal courts will dismiss their case on the ground that the matter has already been decided (what lawyers call res judicata, or “judged matter”). Other times, defendants will ask the judge to move the case from state court to federal court and then, once the case is in federal court, will argue that the plaintiffs did not exhaust their claims in state court (which of course they couldn’t have done because the defendants removed the case).

This Kafka-esque system is not the way to properly vindicate constitutional rights, and it’s certainly not what the Supreme Court imagined when it decided Williamson County. The Court should take this case to remove an unnecessary and harmful barrier to the protection of private property. 

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.

The big news of the week was the “historic” (in President Obama’s words) climate agreement between the U.S. and China—but about the only “historic” thing about it was the hype the White House and environmental groups heaped upon it.  In actuality, there was very little new news. The emissions reduction pathway that Obama announced for the U.S. was not much different (actually a teense lower) than the one announced after the (failed) U.N. Copenhagen meeting in 2009, and China agreed to…well, it’s unclear to what they agreed. NBC News reported “China intends to begin to halt the rise in CO2 emissions by around the year 2030.” Try that line (inserting your own specific vice) on your significant other and see how it goes over.

A good article in Reuters by John Kemp nicely eschews the hype and looks more closely at the facts.  He opening paragraph reads:

Nov 12 (Reuters) - The joint statement by the United States and China on climate change, issued on Wednesday, is more important for its political and diplomatic symbolism than any practical effect it might have in reducing emissions.

Both Kemp’s article and our article on the announcement are worth having a look at to see what the agreement really entails, and its chances at success (spoiler alert: they aren’t good).

Another big news item this week—or at least it should have been—was the release of Alex Epstein’s remarkable book The Moral Case for Fossil Fuels. We can’t say enough good things about this book—and we try often! You may have seen our glowing review on these pages yesterday along with some provocative text provided by Alex that cuts to the basic premise of the book—that the societal pros of fossil fuel use far, far exceed the cons, and therefore, it is, well, immoral, to try to restrict their usage and further development. This week Alex also hosted a Reddit AMA (“ask me anything”) to allow internet savvy folks to interact with him directly as ask questions about his new book and his general way of thinking.  Alex entertained many interesting questions, for example:

Question:  What should be the role of government with respect to pollution? Should it ban pollution? Limit it? Tax it?

Answer: Good question, the subject of chapter 7 “Minimizing Risks and Side-Effects.” The basic principle is that we should think of it in terms of individual rights. At a certain threshold of emission someone is polluting your person or property and should be forbidden to do so. But certain threshold is important and contextual based on the state of technology. So in the 1800s people should have been allowed to use the coal plants they did but we shouldn’t today. If something is fundamentally necessary to human life it’s not pollution. There’s a lot of complexity in application but that’s the framework I use.

If you want to see all that transpired in this lively round of questioning is archived here.

And finally, our friend, the ever-informative Dr. Roy Spencer has a good post up over at his blog looking at what really are the biggest influences on the climate during the timescale of our lifetime. What does he find? Why natural variability, of course! He takes us through a couple of the most influential natural sources of variability and the possible drivers behind them. Here is some insight from Roy:

But statistics aren’t enough. Since we understand that carbon dioxide is a greenhouse gas, and should cause some warming, but we don’t understand natural climate cycles, scientists only look where the streetlight of government funding illuminates the problem: CO2.

What complicates policymaking even further is that what motivates public perceptions and thus decision makers the most are weather events. Hurricane Sandy. A snowy winter. We end up blaming these on the only thing we thing we think we understand — increasing CO2 should cause some change, so it must be responsible for all of the change we see…

To the extent that human-caused warming is occurring, I am increasingly convinced it is a largely benign — and possibly beneficial — needle lost in the haystack of Mother Nature’s natural climate gyrations.

You ought to have a look at the rest of Roy’s article, which can be found here.

Matthew Feeney

Earlier this week, members of a Madison, Wisconsin city subcommittee recommended misguided rideshare regulations relating to insurance, surge pricing, and hours of service that reveal a confused understanding of how ridesharing works.

If the subcommittee’s recommended regulations are implemented, companies such as Uber and Lyft, both of which provide ridesharing services, will have to provide at least $1 million worth of insurance coverage once a rideshare driver is logged into their app, regardless of whether there is a passenger in the car. In Madison, taxis are required to be covered by auto liability policies worth at least $1 million per accident. 

The $1 million insurance requirement in place for Madison taxis is higher than the insurance requirements in many other cities. In New York and Los Angeles, regulations require taxis to have at least $300,000 of coverage per incident. In Washington, D.C., taxis must have at least $50,000 per incident in coverage. Chicago requires taxis to be covered up to a combined single limit of $350,000 per incident.

It should be noted that both Uber and Lyft already have a $1 million policy in place from when a driver accepts a ride request to when a passenger is dropped off. What ridesharing companies will almost certainly object to is the recommended $1 million of coverage for the time when a rideshare driver has a rideshare app open but has not accepted a ride request. As it stands, both Uber and Lyft offer coverage for this time period worth up to $50,000 per individual per incident, $100,000 per incident, and $25,000 per incident for property damage. This coverage is designed to kick in if a driver’s personal auto insurance declines a claim.

California and Colorado, which have both passed legislation related to ridesharing insurance, mandate coverage very similar to the coverage already offered by Uber and Lyft for the period when a driver is logged into a ridesharing app but has not accepted a ride request. The differences between Uber’s and Lyft’s policies and the California and Colorado legislation are that the laws in Colorado and California require that the coverage be primary and that the property coverage be $30,000 rather than $25,000. The laws’ requirements go into effect on January 15, 2015 in the case of Colorado and on July 1, 2015 for California. 

In addition to insurance requirements subcommittee officials have also recommended a ban on “surge pricing” at times of peak demand. Both Uber and Lyft change the price of rides at busy times such as holidays when demand is high. Uber’s surge pricing policy was in the news shortly after Halloween this year when it emerged that a few individuals had paid enormous fares after they took an Uber ride during a time of increased demand. While some might think that Uber fares during “peak demand” are excessive, it is worth keeping in mind that before an Uber passenger can request a ride while surge pricing is in effect she must input the amount of the surge in the Uber app. In addition, the Uber app allows for users to estimate their fare. Likewise, Lyft informs users “prime time” fares are in effect before they request a ride.

What the surge price ban proposal reveals is a misunderstanding of how ridesharing works. Ridesharing drivers are not professional drivers and drive whenever they want. During popular times of partying or celebration (such as New Year’s or Halloween), rideshare drivers may have to decide between partaking in the festivities and driving. Surge pricing helps incentivize rideshare drivers to meet demand during busy times by allowing for increased profit. If passengers do not like surge pricing, the market will reflect that very quickly, so there is no need for Madison officials to interfere with the surge pricing systems in place.

Another set of recommendations made by the Madison subcommittee relates to hours of service. According to the recommended regulations, ridesharing companies will have to ensure that drivers are available 24/7 after one year of licensed service in Madison. This requirement, like the surge pricing ban, reveals a misunderstanding of ridesharing. Uber and Lyft do not control when drivers turn on ridesharing apps, rideshare drivers drive when they want. Regulators ought to leave the issue of driver availability to market forces rather than concern themselves with when private car owners use an app.

The regulations proposed by the Madison subcommittee betray a misunderstanding of an industry officials ought to welcome rather than burden with unnecessary regulations. Let’s hope that when the recommendations are put before the Madison Transit and Parking Commission next month, its members will realize how misguided these recommendations are. 

Neal McCluskey

If the outcry over unilateral executive moves we’ve seen over the last few years remains consistent, Obamacare and immigration are likely to keep sucking up most of Republicans’ attention and the media’s coverage. But just as sweeping have been executive waivers issued from the hated No Child Left Behind Act – really the most recent reauthorization of the Elementary and Secondary Education Act – that have been instrumental in connecting numerous states to, among other things, the Common Core national curriculum standards. And yesterday, the Education Department issued guidance offering states the chance to obtain waivers – if they do the administration’s bidding, of course – lasting well into the term of the next president: the 2018-19 school year.

These waivers are almost certainly illegal – even a Congressional Research Service report often cited to suggest the opposite says they are unprecedented in scope and, hence, an untested case – and even if they are not deemed technically illegal, the reality is they still amount to the executive department unilaterally making law. NCLB does grant the Secretary of Education the authority to issue waivers from many parts of the Act, but it grants no authority to condition those waivers on states adopting administration-preferred policies. Indeed, as University of South Carolina law professor Derek W. Black writes in a recent analysis of waivers, not only does NCLB not authorize conditional waivers, even if a court were to read any waiver authorization as implicitly authorizing conditions, the actual conditions attached – “college- and career-ready standards,” new teacher evaluations, etc. – fundamentally change the law. In fact the changes, Black notes, are essentially what the administration proposed in its 2010 “blueprint” to reauthorize NCLB. And quite simply, the executive fundamentally changing a law is not constitutional.

The latest waiver guidance goes beyond even the toxic status quo. Not only is the President using his vaunted pen and phone to unilaterally make education law, but law that would continue well into his successor’s term. It is a very dangerous move that, quite frankly, deserves at least as much alarmed coverage as Obamacare waivers and immigration actions. If for no other reason, because the action is moving us swiftly toward a de facto federal curriculum. In other words, direct control over what the vast majority of the nation’s children learn.

Federal power can’t get much more invasive than that.

Brink Lindsey

In conjunction with the upcoming conference on the future of U.S. economic growth, the Cato Institute has organized a special online forum to explore possible avenues for pro-growth policy reforms. We have reached out to leading economists and policy experts and challenged them to answer the following question:

If you could wave a magic wand and make one or two policy or institutional changes to brighten the U.S. economy’s long-term growth prospects, what would you change and why?

Their responses will all be made available here. We will post a few new essays each day in the run-up to the conference.

Assembling this impressive roster of contributors was a lot of fun. I strove for real diversity in outlooks – diversity not only in ideological orientation but in specific domains of expertise as well. I did this for a couple reasons. First, the U.S. economy’s growth slowdown is a serious and underappreciated problem and I want to spread awareness of the challenges ahead as broadly as possible. My hope is that a diverse set of writers will attract a broad set of readers. Furthermore, the problem of improving long-term U.S. economic performance is incredibly complex: there are no silver bullets, so meaningful progress will take the form of policy reforms on a whole host of different fronts. It makes sense then to look for promising approaches from as many different angles as possible.

No doubt the participants in this forum disagree about a great deal, and you will likely disagree with some of their proposals. The point of this forum, though, is to look past this and search for surprising areas of convergence and agreement. Back in the 1970s, during another protracted period of poor economic performance, the wholesale elimination of damaging price and entry controls came about as a result of an unusual left-right coalition: don’t forget that Ted Kennedy and Ralph Nader were major supporters of airline and trucking deregulation. It is my hope that similar coalitions can emerge to lift us out of our current predicament.

With that said, here are the first four essays:

1. Arnold Kling proposes alternatives to the regulatory status quo at the FCC and FDA, respectively: a spectrum arbitration board and prize-grants for medical research.

2. Robert Litan calls for more high-skill immigration and higher pay for teachers in exchange for an end to tenure.

3. Douglas Holtz-Eakin provides an overview of structural reforms needed to reduce government debt levels and restore growth.

4. Lee Drutman argues that tripling the budget for congressional staff can lead to improved policymaking.

Chelsea German

There has never been a better time to be alive on this planet. While many measures of wellbeing are already on a positive trajectory, humanity’s innate curiosity and enterprising spirit continue to push many individuals to seek the stars. The Rosetta mission’s successful comet landing was just the latest development. Privately-funded initiatives, such as SpaceX and Mars One, are taking the lead on a bolder project: a mission to Mars. Greater availability of knowledge and resources is enabling ever-more ambitious space exploration.

Successful space exploration requires expertise. Today, more people pursue advanced degrees globally, many of them in critical fields like physics, math, computer science, geology, and engineering. Furthermore, scientific knowledge compounds over time, and so each generation understands more than the last.

With a higher quantity and quality of scientists, mathematicians, and engineers than at any point in history, humankind is better equipped than ever to tackle the complex challenges of extraterrestrial travel.

Space exploration also requires a tremendous investment of resources. Throughout most of history, even if humankind had possessed the technical knowledge for space travel, scarcity would have prohibited the endeavor. Fortunately, wealth and prosperity are rising rapidly while poverty is in decline. Increasing abundance makes it possible to take on previously unthinkable projects like space exploration. 

Increasing abundance and scientific advancement are expanding humanity’s capacity to pursue ambitious undertakings. Not only has there never been a better time to be alive on this planet, but, thanks to growing prosperity and knowledge, there has also never been a better time to attempt exploration beyond Earth.  

Patrick J. Michaels

Alex Epstein’s long-anticipated book, The Moral Case for Fossil Fuels, published by Penguin, comes out today! I reviewed it as, “simply the best popular-market book about climate, environmental policy, and energy that I have read.  Laymen and experts alike will be boggled by Epstein’s clarity.”

Alex recently sent us a brief essay based upon material in the book. Alex Epstein is President and Founder of the Center for Industrial Progress—an organization sowing the seeds of energy enthusiasm to counter the tide of climate alarmism. We asked Alex to share a few thoughts with our readers here at Cato; find them below.

If you are in Washington, you might want to meet Alex. He will be giving a Hill Briefing in B-369 Rayburn at 9am on Friday, November 21.

If you ever get asked the vague but morally-charged question “Do you believe in climate change?” someone is trying to put something over on you.

Climate change is a constant of nature and everyone agrees that fossil fuels have some impact on our naturally variable, volatile, and often vicious climate.

The question is whether it will have a catastrophic impact—one so bad it justifies restricting the only practical way to get energy in the foreseeable future to the 3 billion people who have next to none of it: fossil fuels. (No country relies on the sun and wind for energy, but rich countries can afford to pay tens or hundreds of billions to install and accommodate allegedly virtuous wind turbines and solar panels on their grids.)

The real issue is climate catastrophe. I’m not a climate-change skeptic. I’m a climate catastrophe skeptic—and here’s one graph that shows why you should be, too.

No, it’s not showing temperatures have gone up half a degree in the 80 years we’ve used a lot of fossil fuels, which is barely more than they went up the prior 80 years. Nor does it show temperatures have flattened in the past eighteen years—while  the world’s leading climate catastrophists predicted dramatic, accelerating, runaway warming. Dr. James Hansen predicted that temperatures would increase between two-and-a-half and five degrees in 20 years!

Okay, I’ll show that graph, too—here it is:

Sources: Met Office Hadley Centre HadCRUT4 dataset; Etheridge et al. (1998); Keeling et al. (2001); MacFarling Meure et al. (2006); Merged IceCore Record Data, Scripps Institution of Oceanography

But that’s not the graph that really matters. There is no intrinsically perfect global temperature and, if there was, we would expect it to be warmer. Until it became politically correct for temperature trends to warm, people around the world prayed for far more warming than we’ve experienced. There is no time in human history when it has been considered “too warm” for human beings.

What matters is: is the climate becoming more or less livable? The key statistic here, one that is unfortunately almost never mentioned, is “climate-related deaths.”

The best source I have found for this data is the U.S. Office of Foreign Disaster Assistance and Centre for Research on the Epidemiology of Disasters International Disaster Database (OFDA/CRED EM-DAT), based in Brussels.1 It gathers data about disasters since 1900.

Here is a graph comparing CO2 emissions, the alleged climate danger, to the number of climate-related deaths, which reflects actual climate danger to humans. It’s striking—as CO2 emissions rise, climate-related deaths plunge.

Sources: Boden, Marland, Andres (2013); Etheridge et al. (1998); Keeling et al. (2001); MacFarling Meure et al. (2006); Merged IceCore Record Data, Scripps Institution of Oceanography; EM-DAT International Disaster Database

To make matters better, in reality the trend is even more dramatically downward, as before the 1970s many disasters went unreported. One big reason for this was lack of satellite data—we can now see the whole world, enabling us to track icecaps and disaster areas with relative ease. In 1950, if there was a disaster in the middle of what is now Bangladesh, would information have been accurately collected? In general, we can expect in more recent years, more deaths were recorded and in earlier years, fewer deaths were recorded. For some countries there is simply no good data, because in underdeveloped places like Haiti or Ethiopia we do not even know exactly how many people lived in a particular place before a disaster struck. Today we have much better information—and because disaster statistics are tied to aid, there is incentive to overreport.

And the more we dig into the data, the stronger the correlations get.

Here are a couple of striking numbers from the data: in the decade from 2004 to 2013, worldwide climate-related deaths (including droughts, floods, extreme temperatures, wildfires, and storms) plummeted to a level 88.6 percent below that of the peak decade, 1930 to 1939.2 The year 2013, with 29,404 reported deaths, had 99.4 percent fewer climate-related deaths than the historic record year of 1932, which had 5,073,283 reported deaths for the same category.3

That reduction occurred despite more complete reporting, an incentive to declare greater damage to gain more aid, and a massively growing population, particularly in vulnerable places like coastal areas, in recent times.

The climate catastrophists don’t want you to know this because it reveals how fundamentally flawed their viewpoint is. They treat the global climate system as a stable and safe place we make volatile and dangerous. In fact, the global climate system is naturally volatile and dangerous—we make it livable through development and technology—development and technology powered by the only form of cheap, reliable, scalable reliable energy that can make climate livable for 7 billion people.

As the climate-related death data show, there are some major benefits—namely, the power of fossil-fueled machines to build a durable civilization highly resilient to extreme heat, extreme cold, floods, storms, and so on. Why weren’t those mentioned in the discussion when we talked about storms like Sandy and Irene, even though anyone going through those storms was far more protected from them than he or she would have been a century ago?

I have debated representatives of the three leading environmental organizations in the world—Greenpeace, Sierra Club and 350.org—including 350.org’s Bill McKibben, the leading environmentalist in the world today—and every time, I have repeatedly mentioned the climate livability statistics. I raised it to Bill McKibben before I debated him and half a dozen times during my debate with him—he didn’t acknowledge it. He just called it “one number.” Yeah, one number, based on billions of empirical observations, that destroys billions of dollars worth of speculation.

Why? Because the dogma that man is ruining the planet rather than improving it is a religion, a source of prestige, and a career for too many people. But for the rest of us, the statistic climate catastrophists don’t want us to know is very, very good news.

Tim Lynch

Over at Cato’s Police Misconduct website we have identified the worst case for the month of October.

The worst police misconduct of October goes to the officers who shot David Hooks in his own home during a drug raid based on an invalid warrant and the tip of an informant who was allegedly high on meth.  The informant, Rodney Garrett, had just stolen a vehicle from the Hooks’ home when he was either arrested or turned himself into the police (reports vary).  Garrett told police that the 20g bag of meth he had had been stolen from Hooks’ pickup truck.

That same night, the Laurens County Drug Unit pushed through a warrant based primarily on Garrett’s word, and at 10:55 pm, executed a no-knock warrant despite the fact that the warrant did not authorize one–at a home that the police knew had just previously been burglarized two nights earlier. Hooks’ wife Teresa saw armed, hooded figures in black rushing towards the back door and woke her husband, thinking the burglars had returned.  David Hooks got his gun, and when the SWAT team knocked in the back door without announcing their presence, he didn’t even have the opportunity to get a shot off before officers fired between 16 and 18 rounds, killing him.

Some of the rounds were shot blindly through a wall at Hooks, without regard for whom or what they were firing at and killing. As you might expect from a search warrant based almost entirely on the tip of a meth addict who may or may not have been high when giving it, a 44-hour search of the Hooks home produced absolutely no contraband whatsoever.

David Hooks was a successful businessman who ran a construction firm that contracted with the U.S. government.  He had passed numerous security clearances and background checks, but on the word of a thief and meth addict, he was reduced to just another casualty in the war on drugs. Additional background here.

Patrick J. Michaels

Most every paper in the country is trumpeting today that China has finally agreed to limit its emissions of carbon dioxide, gutting the principal objection of people opposed to unilateral and expensive reductions in ours. 

Too bad it’s not true.

According to the official pronouncement, all China said was that they “intend” to cap their emissions “around 2030”. Anything new here?  In November, 2009, prior to the (failed) UN climate fest in Copenhagen, they announced their “intention” to reduce their emissions per unit economic output (called “carbon intensity”)  by 40-45% by 2020. Since then, things haven’t appreciably changed—so they now have five years to execute this huge drop, which isn’t going to happen.

The road to global warming is paved with China’s good “intentions”.

We also note that they “intend” to derive 20 per cent of their energy from non-carbon based sources by 2030. No doubt working late into last night (as did we; this story broke at 10:30), the estimable Roger Pielke, Jr., has already calculated that this means that the Chinese will have to put the equivalent of one nuclear power plant per week on line between now and then. As Roger wryly noted, “some people take it seriously”.

Don’t. But we should take seriously President Obama’s announcement that the US will double its scheduled emissions reductions by 2025. Thanks to the 2007 Supreme Court (5-4) decision that incredulously said that the 1992 Clean Air Act Amendments gave the President the power to command and control virtually our entire energy economy, he indeed can do what he just said.

It would take an act of Congress to prevent him, an act that would most certainly be vetoed, without the necessary two-thirds majority to override.

One might think that he would care about what the voters think—but that’s not the case. A careful read of election returns reveals that the cap-and-trade, and not health care, cost his party control of the House in 2010, and, in 2014, the epicenter of electoral carnage was in the coal mining regions of Kentucky and West Virginia, costing his party the Senate.

While China has good “intentions” we get real “unemployment”. Such a deal!

K. William Watson

This week is the #StopFastTrack Week of Action, an attempt by the anti-globalization movement to coordinate protests around the world against the Trans-Pacific Partnership, a potential free trade agreement between the United States and 11 other Pacific Rim countries.  The reason they’re doing it now is to influence lawmakers in the lead up to Congress’s lame duck session, during which many in Washington hope/fear that Congress will vote on a bill to grant “trade promotion authority” (also known as “fast track”) to help the Obama administration complete the TPP negotiations.

Spearheading the effort is the AFL-CIO.  In addition to asking supporters to call their member of Congress, the unions have also paid for ads at the DC metro station on Capitol Hill, obviously meant to reach congressional staffers during their commute.

Understandably considering the source, the ads have a very union-like feel to them.  Lonely hardhats on the floor of a shuttered factory, middle-aged people lamenting that they’re not being paid enough, etc.  Here’s a typical example showing a forlorn-looking young man who’s upset about income inequality:

The “1%” rhetoric should be quite familiar to most Americans by now as the standard jargon of the ideological left when they rail against all forms of voluntary commerce.  It’s no surprise to see it employed by labor unions in their crusade against free trade. 

Organized labor’s opposition to trade is nothing new.  So, in order to get more attention this year, labor groups have been readily pointing out that even some Republicans are opposed to fast track.  In particular, they are referring to a soi-disant “tea party” group that claims fast track will enable “Obamatrade” to destroy American sovereignty and jobs.   That group takes a very different approach with its messaging:

The news media have run with the narrative that a right-wing insurgency against fast track could threaten the U.S. trade agenda.

The problem with this narrative is that it is just wrong.  Scott Lincicome and I have written a comprehensive take-down of the attempt by a tiny protectionist wing of the GOP to paint its anti-trade agenda as part of the tea party movement.  Yes, there are conservatives who don’t like free trade, but the tea party movement is all about holding Republican members of Congress accountable when they stray from (most) limited government principles.  As such, the members of Congress most associated with the tea party movement have the best records in support of free trade

Trying to get Republicans to oppose free trade by wearing a tri-corner hat and shrieking “OBAMA!!!” merely plays to the negative views of the tea party held by many in the news media.

There are real obstacles to liberalizing trade in the United States.  The greatest obstacle is the inescapable reality that politicians benefit from rigging the system in favor of narrow constituencies seeking protection.  Protectionists get ideological cover mostly from the anti-globalist left but also from the nationalist right.  Thankfully, that nationalist impulse is largely in abeyance as a force against free trade in Congress at the moment, and “Obamatrade” notwithstanding, the tea party isn’t about to bring it back.

Charles Hughes

Broken promises and lowered expectations littered the first year of the Affordable Care Act. When the law was being debated, Obama promised the law would cut health care premiums for a typical family by $2,500. Instead, premiums everywhere continued to rise, in some places they skyrocketed. Supporters claimed the law would reduce the deficit, citing a score from the Congressional Budget Office. More recent calculations with a full ten years of implementation show that it will increase budget deficits. The now infamous “if you like your health care plan, you can keep it” pledge, which Politifact dubbed its “lie of the year” turned out to be a fabrication as millions of people received cancellation notices. The administration has tried to shift focus from past promises on cost containment and premium savings to the expansion of insurance coverage. Even in this area, the Affordable Care Act looks like it will fail to meet its goals, and the administration is already scrambling to try to temper expectations.

At an event at the Center for American Progress earlier this week, Health and Human Services Secretary Sylvia Burwell revealed that the administration had drastically lowered their exchange enrollment target. She divulged “[t]he number we’re going to aim for this year is 9.1 million.” This is a far cry from the Congressional Budget Office’s April projection of 13 million. The new goal for next year  is only 70 percent of the initial projection, which showed exchange enrollment jumping 7 million in 2015. The new target only anticipates a net increase of 2 million, a drastic reduction.       

In a related brief, HHS cited a slower than expected shift from employer-sponsored insurance and off-exchange enrollment as the reason for the lower projection. The brief suggests that it will take five years instead of three to ramp up to the eventual enrollment level of 25 million. This could mean that exchange enrollment could not reach its peak until 2019 and will likely fall short of initial expectations for years to come.

Secretary Burwell also sought to tamp down expectations for the website, saying that it “will have things that won’t go right. We will have outages, we will have downtime.” While the website will probably function better than last time, the second round of open enrollment faces many serious obstacles.

Most of the people most interested in signing up already did last year. Convincing those still uninsured to sign up could be more of a challenge. The first enrollment period had more outreach and coverage, whereas the Obamacare story potential enrollees are most likely to see now is news that the Supreme Court agreed to hear a case that could invalidate the majority of federal subsidies. Automatic renewal for people already enrolled poses another problem. If they do nothing, many people could keep the same plan but have to pay much more due to the way the law calculates subsidies. On top of that, the second open enrollment is only half as long as the first, so people have less time to visit the website and enroll through the exchange.

The first real indicator for how the second round is going will be how the renewal period goes for people who signed up last year. Last year there was a surge in enrollment at the end of the enrollment period. If people run into problems with automatic renewal or have difficulty using the website that could deter new potential enrollees.

The law’s past failures have led to broken promises and missed goals in areas like cost savings, premium reduction and improving the quality of care people receive. One of the only metrics the administration could point to in the past was that exchange enrollment in the first year actually met stated goals despite the website’s terrible launch. Now it seems that the law will fall short in enrollment too.

Open enrollment begins next week, and the recent efforts by the administration to lower expectations so close to the start date do not inspire much confidence.

Chris Edwards

In an article about federal highway legislation yesterday, the Washington Post illustrated the art of advocacy journalism cloaked as news reporting. The article explored different options for raising federal taxes $100 billion to fund state highways. It quotes three transportation lobbyists and included scare lines about the supposed consequences of not raising taxes (“… hundreds of thousands of construction jobs put at risk…”).

The article does not mention that spending cuts are an option for the upcoming highway bill. Everyone agrees that there is a large gap in the Highway Trust Fund (HTF), but gaps can be closed either by tax hikes or spending cuts. Yet the “transportation advocates” the Post talked to agreed, “until there is consensus on finding more money, transportation may be doomed to limp along in perpetual crisis.”

Nonsense. As I testified here, federal spending cuts would balance the HTF and solve the crisis, while spurring greater efficiency and innovation in U.S. transportation as the states played a larger role. The Post did not bother to explore that option, despite support from conservatives in Congress, prominent think tanks, and independent transportation experts.

In the election, Congress swung decidedly in a small-government direction, but the Post’s reporting did not reflect that reality, and instead presented only the lobbyist point of view. The Post’s silence on the spending-cut option is all the more striking because the newspaper admits that it would be very difficult to raise transportation taxes due to political and public opposition.

It will be interesting to see how Congress closes the HTF gap before the May expiration of the current highway bill. I hope that we have a robust debate on all the options and that the Washington Post changes course and presents its readers with a more balanced perspective.

Doug Bandow

Power is like quicksilver.  It often slips through the fingers of those attempting to grasp it.  Who is in power in North Korea?  Maybe 31-year-old Kim Jong-un.  Maybe not.

The Democratic People’s Republic of Korea’s Kim disappeared from public view for 40 days.  On his return Pyongyang only released undated still photos.

There’ve been no untoward troop movements or party conclaves in the North, though some other signs seemed conflicting.  Whoever reigns, there is little reason to hope for nuclear disarmament. 

To the contrary, the North appears to be increasing production of fissile material, moving ahead on ICBM development, and upgrading rocket launch facilities.  Even a seemingly secure Kim, the “Great Successor” whose father concocted the North’s “military first” policy, would hesitate challenging the armed services by trading away its most important weapon. 

Yet there are signs of change elsewhere.  The economy appears to be growing, with more consumer goods evident, especially in Pyongyang. 

Moreover, Pyongyang appears to be adjusting diplomatic strategies yet again.  The North released the three Americans it held, apparently without receiving anything in return. 

North Korea’s UN ambassador, So Se-pyong, indicated that the North was ready to return to the six-Party nuclear talks.  In early October Pyongyang sent a high-ranking delegation to Seoul for the Asian Games, which proposed further talks, though the latter later foundered. 

Nothing suggests that the regime is close to collapse. 

In this situation there is little to recommend the administration’s continuing policy of isolating the North.  In August North Korea’s deputy UN representative, Ri Tong-il, complained that “No country in the world has been living like the DPRK under serious threats to its existence, sovereignty, survival.” 

Of course, the North’s leaders are practiced cynics and their claims cannot be taken at face value.  But even paranoids have enemies, it is said, and North Korea is surrounded by wealthier and more powerful adversaries. 

A more pacific U.S. approach might not change the Kim regime’s calculus.  However, it’s hard to imagine a less threatening DPRK without changing America’s approach.

And that could come in part from diplomatic dialogue.  Washington should offer to establish low-key diplomatic relations, perhaps a consulate. 

Such a shift would be even more effective if coupled with policy changes that would be in America’s interest in any case.  Sanctions haven’t changed the DPRK and should be loosened.

Moreover, Washington should bring home its troops.  The U.S. conventional presence is long outmoded:  the South has around 40 times the GDP and twice the population of the DPRK.

Washington then could invite the North’s authorities to reciprocate.  If Pyongyang failed to act, which would surprise no one, Washington would be no worse off. 

It also would be more difficult for Beijing to excuse North Korean misbehavior.  Moreover, a troop withdrawal would eliminate the prospect that Korea unification would result in U.S. troops on China’s border, a Chinese nightmare which discourages Beijing from cooperating with Washington.

Even a more responsive North Korea is unlikely to be a particularly friendly actor.  Nevertheless, there is more hope for internal improvements in human rights and external talks over the issue if the international environment is less threatening for Pyongyang.  America’s earlier refusal to talk to the PRC gained nothing, while the famed Nixon opening helped create an atmosphere more conducive to post-Mao reforms.

Someday North Korea will pass away.  As I wrote in National Interest online:  “Until then the country is likely to remain a mysterious challenge, unsettling an entire region.  Washington’s best approach would be to extricate itself from confrontation and pursue dialogue, while leaving South Korea and Japan free to develop their separate policies.” 

Every strategy toward the DPRK so far seems to have failed.  Anything adopted is likely to be only a second best.  However, today even second best would be a major step forward.  It’s time for Washington to try something different.

Pages