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Outer Banks Sea Level Rise: Worth Getting Exercised Over?

Thu, 06/26/2014 - 14:31

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

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

The Washington Post, yesterday, fanned the flames of a dispute over how much sea level rise the residents of the North Carolina Outer Banks should plan upon for this century.

The dispute arose when, a few years ago, politicians in Raleigh decided to get involved in the business of climate forecasting,  and decreed that the Outer Banks region should expect a 39-inch sea level rise by the year 2100 and that people need to plan for a  future based upon this number. Some of the rumored plans include abandonment of the region’s major roadways, stopping new construction, and re-zoning the land to declare all property at an elevation less than 39 inches to be uninhabitable. The state government under then-governor Beverly Perdue (D) was “helping” by preparing a website that showed all property that would be under water by the year 2100, deep-sixing the equity held in many beach houses.

It’s no surprise that there’s a pushback against the state’s 39-inch forecast, which was based on a selection of outdated science that foretold a much more alarming story than newer scientific studies.

For example, the latest (fifth) assessment report from the U.N.’s Intergovernmental Panel on Climate Change (IPCC) projects that the global average sea level rise over the course of the 21st century would be in the range of 10 to 32 inches, with a mean value of about 19 inches.  This is only about 50% of the 39-inch projection.

And, the IPCC projection is probably too high because it was driven by a collection of climate models which new science indicates produce too much warming given a rise in atmospheric carbon dioxide levels.  If the models were forced to run with a lower sensitivity to carbon dioxide emissions, their sea level rise projections would decline proportionally,  down to about 13 inches.  This arguably better value is only 1/3rd of the 39-inch value forwarded by the NC state government.  No wonder the realtors and mortgage bankers were up in arms about Bev Purdue’s map.

Not so fast, said the supporters of the 39-inch rise, pointing to a 2012 by Asbury Sallenger and colleagues from the U.S Geological Survey (USGS), which identified a sea level rise “hot spot” that stretched from Cape Hatteras northward to Maine.  It showed that the rate of sea level rise in the “hot spot” was substantially greater than the global average, and postulated that it was the result of an anthropogenic climate change-induced slowdown of the Gulf Stream.  This slowdown was only expected to get worse in the future (according to the same climate models that can’t get the climate response to carbon dioxide level increases correct) and therefore, the Outer Banks should expect substantially more sea level rise than the average experienced by the rest of the world.

Unfortunately, Sallenger et al. was typical of so many climate projections that seem to thrive in a data-poor environment. Six months ago, we highlighted a study by Tom Rossby and colleagues which looked directly and more completely at the recent behavior of the Gulf Stream. Rossby identified no slowdown at all, and directly questioned the Sallenger explanation for the “hot spot”:

Recently, two papers have suggested that the [Gulf Stream] may be weakening based on the well-documented accelerated Sea Level Rise (SLR) along the U.S. east coast (Sallenger et al., 2012; Ezer et al., 2013). …In contrast to these recent assertions of a weakening Gulf Stream our direct measurements of Gulf Stream currents for the past 20 years indicate no such trend…”

The Rossby study did not dispute the existence of the “hot spot,” but, rather, the very shaky hypothesis that it was due to a slowdown of the Gulf Stream resulting from global warming, and even more warming would make things (warning:  familiar meme ahead) worse than we thought!

In fact, one only needs logic to refute the hypothesis.  The Gulf Stream is the principal transporter of tropical warmth to high latitudes in the western hemisphere.  If it were significantly weaker, that would obviously increase the temperature gradient (difference) between the pole and the tropics, something that is obviously happening in the opposite direction (unless all those stories about disproportionate north polar warming are hooey).

Another recent study by Rutgers University’s Robert Kopp took the “hot spot” analysis further and found that, while it has existed since the mid-1970s, it was largely explained by natural  variability present within various patterns of atmospheric circulation. No need to invoke global warming.  Kopp went so far as to calculate that it would take another 20 years or so of a continuation of the “hot spot” sea level rise before the rate would even rise about the level of natural variability observed during the 20th century. In other words, it is way too soon to tell whether  the Outer Banks will experience a sea level rise greater than the global average.

Recognizing this, and that the level of uncertainty is large and grows larger the further out into the future, the current North Carolina governor Pat McCrory (R) and Republican-led state legislature rescinded the 39-inch projection and are working on new guidance that reportedly extends out only 30 years with projections of no more than 8 inches of rise during that time (which is still probably on the high side of what will occur).

It doesn’t take a rocket scientist to notice that the Outer Banks is a pretty unstable environment to begin with, one that is continually reshaped by ocean currents, hurricanes, nor’easters, and more recently, human engineering.

All these shaping forces will continue into the future—with or without climate change.

So, too, will fancy houses on stilts out in the waves.  That is part and parcel of the dynamic environment there and our desire to live (or vacation) as close to the edge of the sea as possible.

The degree to which that unstable environment will be preserved, reshaped or shored up is best left to the locals, although the situation is infinitely more complicated in that many of those large vacation homes would not exist if it weren’t for federal subsidies in the form of reduced flood insurance rates.

This is a complex system, partly of our own making. Managing it going forward isn’t exactly helped by scare-mongering. Proclaiming a 39-inch sea level rise in the face of a large body of contradictory science will only further rachet up the public’s distrust of gloomsaying scientists.

In closing, it’s appropriate to remember President Dwight Eisenhower’s telling paragraph in his iconic 1961 Farewell Address:

Yet, in holding scientific research and discovery in respect, as we should, we must also be alert to the equal and opposite danger that public policy could itself become the captive of a scientific-technological elite. 

…as in the publicly-funded bureaucrats and cherry-pickers in Raleigh.


Kopp, R. E., 2013. Does the mid-Atlantic United States sea level acceleration hot spot reflect ocean dynamic variability? Geophysical Research Letters, 40, 3981–3985, doi:10.1002/grl.50781

Rossby, T., et al., 2013. On the long-term stability of Gulf Stream transport based on 20 years of direct measurements. Geophysical Research letters, doi: 10.1002/2013GL058636

Sallenger Jr., A. H., K. S. Doran, and P. A. Howd, 2012. Hotspot of accelerated sea-level rise on the Atlantic coast of North America. Nature Climate Change, 2, 884-888.


Categories: Policy Institutes

Military Cooperation with China: RIMPAC as a Model for the Future

Thu, 06/26/2014 - 14:23

Doug Bandow

The Rim of the Pacific Exercise recently concluded in waters near Hawaii.  For the first time China joined the drills.  It was a small but positive step for integrating Beijing into more international institutions.

RIMPAC started in 1971.  This year there are 23 participants, including the People’s Republic of China, which explained that the maneuvers are “an important mission of military diplomacy” and a means to strengthen “friendly relations with countries of the South Pacific through public diplomacy.”

Beijing’s participation comes at a time of significant regional tension.  The PRC’s more aggressive stance in asserting its territorial claims in the South China Sea and Sea of Japan have led to dangerous maritime confrontations. 

RIMPAC offers an opportunity to create some countervailing pressure in favor of a less threatening regional naval environment.  At the political level inviting Beijing to participate demonstrates respect for China’s increased military power and international role.   Doing so also counters the charge that Washington is seeking to isolate and contain the PRC.

Moreover, inclusion hints at the benefits for Beijing of a civil if not necessarily friendly relationship with its neighbors as well as America.  No doubt, the direct pay-off for China from RIMPAC is small. 

But to be treated as an equal and regular participant in international affairs is advantageous.  Although any great power must be prepared to accept unpopularity when necessary, in general a friendly environment is more conducive to ensuring both peace and prosperity. 

Military cooperation also is important.  Beijing can play a more important role in peacekeeping, anti-piracy patrols, counter-proliferation searches, search-and-rescue efforts, and other international operations.  This demonstrates to Chinese naval officers that there are missions other than challenging the U.S. or other states as enemies.

The PRC’s participation in RIMPAC also will provide some valuable human interaction among naval personnel.  It is harder to hate an entire people when you’ve had a drink with individuals.

Of course, participation in one or more military maneuvers is not enough to maintain the peace, especially when the respective governments have been only too willing to play games of international chicken over emotional claims to territory.  But including the PRC can be seen as an aspect of a larger allied strategy of inclusion.

Today Beijing remains a revisionist power, determined to overturn past decisions seen as unfair and unreasonable.  Its challenges likely will ebb only if it perceives the cost of acting to be greater than the benefit of the status quo, or at least a more modest reform course achievable through negotiation.

Costs already are rising for China as Japan begins to take a more active military role and affected countries attempt to pull Washington more directly into their affairs.  At the same time, the U.S. and the PRC’s neighbors should think creatively about other activities and organizations which might entice greater Chinese involvement. 

The more invested the PRC in the existing order, the less likely Zhongnanhai’s residents would be to risk disrupting the system.  To the extent the People’s Liberation Army and other services can be shown the benefits of peaceful cooperation, so much the better.

Of course, a little friendship diplomacy cannot close the gulf between China and America.  But the best sales force for America tend to be Americans, including in the military—at least when participants are not shooting at each other, of course.

As I point out in my latest article on China-US Focus:  “The U.S. and China’s neighbors increasingly look at Chinese naval vessels as a threat.  However, RIMPAC showcases them in a different role.  It will be up to Beijing, its Pacific neighbors, and the U.S. to find other opportunities to further invest the PRC in the existing geopolitical order.”

Doing so won’t be enough to keep the peace in the decades ahead.  But it would nonetheless be useful step in the right direction.

Categories: Policy Institutes

A Win, But a Major Missed Opportunity: NLRB v. Canning

Thu, 06/26/2014 - 13:24

Roger Pilon

To expand on Ilya’s earlier post, the Supreme Court today did indeed check President Obama’s unprecedented expansion of his recess appointments power when in January 2012 he filled three vacancies on the National Labor Relations Board with nominees that the Senate, then in “pro-forma” session, had to that point refused to confirm. In NLRB v. Noel Canning, the Court ruled unanimously in upholding the unanimous January 2013 decision of the D.C Circuit, which had vacated an NLRB order against the Noel Canning company, finding the three appointments to be unconstitutional. At issue, therefore, was the scope of president’s recess appointments power, his power “to fill up all Vacancies that may happen during the Recess of the Senate” by granting temporary commissions.

That power, however, is subsidiary to the president’s main appointments power, which is to make major appointments to his administration only “by and with the Advice and Consent of the Senate.” It was granted because, for much of our history, the Senate was in session only during certain periods of the year. If important vacancies should “happen” when the Senate was not in session, the president would be able to fill them so that the business of government could continue. Recess appointments were thus the exception, not the rule. In particular, the power was not meant to enable the president to make an end-run around the advice and consent of the Senate.

Unfortunately, in writing for the Court today, Justice Breyer has made a hash of Judge David Sentelle’s well-argued opinion below, as Justice Scalia makes clear in his concurrence for himself, Chief Justice Roberts, and Justices Thomas and Alito. As Scalia writes, the Recess Appointments Clause restricts the president’s power in two main ways. First, “it may be exercised only in ‘the Recess of the Senate,’ that is, the intermission between two formal legislative sessions. Second, it may be used to fill only those vacancies that ‘happen during the Recess,’ that is, offices that become vacant during the intermission.” The text is clear, Scalia says, and both conditions were clearly understood at the founding. But, he continues:

Today’s Court agrees that the appointments were invalid, but for the far narrower reason that they were made during a 3-day break in the Senate’s session. On its way to that result, the majority sweeps away the key textual limitations on the recess-appointment power. It holds, first, that the President can make appointments without the Senate’s participation even during short breaks in the middle of the Senate’s session, and second, that those appointments can fill offices that became vacant long before the break in which they were filled.

What was Breyer’s rationale for so watering down the clear constitutional text and so expanding the president’s power? To trump the text he offers what can only be called a tendentious reading of historical practice, to which Scalia answers: “What the majority needs to sustain its judgment is an ambiguous text and a clear historical practice. What it has is a clear text and an at-best-ambiguous historical practice.” Indeed,

The majority replaces the Constitution’s text with a new set of judge-made rules to govern recess appointments. Henceforth, the Senate can avoid triggering the President’s now-vast recess-appointment power by the odd contrivance of never adjourning for more than three days without holding a pro forma session at which it is understood that no business will be conducted. How this new regime will work in practice remains to be seen.

Scalia concludes sadly that today’s decision “will have the effect of aggrandizing the Presidency beyond its constitutional bounds and undermining respect for the separation of powers”—just what we need as the House considers whether to bring suit to try to check an increasingly out-of-control presidency. The decision today was a win, but it was also a major missed opportunity to restrain a power that for too long has been abused, flagrantly in this case. At least it illustrates, as we look to future elections, how important a question who sits on the Court is.

Categories: Policy Institutes

Common Core Pufferfish II: This Time, Poison’s Mentioned!

Thu, 06/26/2014 - 13:20

Neal McCluskey

Last week, I examined a Wall Street Journal/NBC News poll that found 59 percent of respondents favored implementing the Common Core national curriculum standards, 31 percent opposed. Of course, as has often been the case, that response came after a description of the Core was read that was biased both in what it said, and what it did not. It gave a positive spin to the Core while ignoring, in particular, federal coercion behind it.

Today, a survey was released by the Friedman Foundation for Educational Choice that, among many matters, asked people about the Core. Unlike many previous polls, this one tried to offer a balanced description of the Core. After first finding that without a description respondents opposed the Core 39 to 34 percent, the pollsters asked the following:

The objective of the Common Core State Standards Initiative is to establish similar academic standards and comparable tests across all states for students in grades K-12. The standards were initially developed by the National Governors Association and Council of Chief State School Officers. States and districts have adopted the common standards and tests in association with U.S. Department of Education incentives. In general, do you favor or oppose the “Common Core”?

The results? 50 percent supported the Core, 41 percent opposed. It switched support, but the margin was a fraction of the WSJ/NBC survey: 9 points instead of 28. And the wording is still dubious, featuring the awkward phrasing “in association with U.S. Department of Education incentives.” Make the wording more straightforward – and accurate – such as, “many States adopted the common standards and tests at the same time the federal government made doing so important to compete for federal funds,” and the gap might be smaller, or even reversed. Indeed, the Friedman poll found that a sizeable 74 percent of respondents thought the feds were doing a “fair” or “poor” job in K-12 education, versus only 22 percent saying “good” or “excellent.”

Drilling down a bit, the survey revealed some more interesting information about the how the public may truly feel about the Core. First, while respondents without children in school favored the post-description Core 52 to 38 percent, school parents opposed it 49 to 44 percent. Second, while the majority of respondents said it would make no difference in their vote if “a candidate for Governor, State Senator or Representative” supported the Common Core, 24 percent said it would make them less likely to support the candidate, versus 16 percent more likely.

So what does all this tell us? For one thing, polling is an inexact science. More importantly, the public is probably not nearly as supportive of the Core as many polls have suggested – indeed, without a description the plurality opposed it – and just mentioning the Pufferfish poison appears to make a difference.

[Programming note: Look for more coverage of the Friedman Foundation’s poll coming soon from Jason Bedrick. There’s a lot more to talk about!]

Categories: Policy Institutes

Oops: Got the Sign Wrong Trying to Explain Away the Global Warming “Pause”

Thu, 06/26/2014 - 12:16

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

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

A couple of years ago, when it was starting to become obvious that the average global surface temperature was not rising at anywhere near the rate that climate models projected, and in fact seemed to be leveling off rather than speeding up, explanations for the slowdown sprouted like mushrooms in compost.

We humbly suggested a combination of natural variability and a lower “sensitivity” of surface temperature to rising carbon dioxide.

Now, several years later, the “pause” continues. Natural variability is now widely accepted as making a significant contribution and our argument for a lowered climate sensitivity—which would indicate that existing climate models are not reliable tools for projecting future climate trends—is buoyed by accumulating evidence and is gaining support in the broader climate research community. Yet is largely rejected by federal regulators and their scientific supporters.  These folks prefer rather more exotic explanations that seek to deflect the blame away from the climate models and thus preserve their over-heated projections of future global warming.

The problem with exotic explanations is that they tend to unravel like exotic dancers.

Such is the case for the explanation—popular with the press when it was first proposed—that an increase in aerosol emissions, particularly from China, was acting to help offset the warming influence of anthropogenic carbon dioxide emissions.

The suggestion was made back in 2011 by a team of researchers led by Boston University’s Robert Kaufmann and published in the Proceedings of the National Academy of Sciences. Shortly after it appeared, we were critical of it in these pages, pointing out how the explanation was inconsistent with several lines of data.

Now, a new paper appearing in the peer-reviewed scientific literature takes a deeper view of aerosol emissions during the past 15 years and finds that, in net, changes in aerosol emissions over the period 1996-2010 contributed a net warming pressure to the earth’s climate.

Kühn et al. (2014) write:

Increases in Asian aerosol emissions have been suggested as one possible reason for the hiatus in global temperature increase during the past 15 years. We study the effect of sulphur and black carbon (BC) emission changes between 1996-2010 on the global energy balance. We find that the increased Asian emissions have had very little regional or global effects, while the emission reductions in Europe and the U.S. have caused a positive radiative forcing. In our simulations, the global-mean aerosol direct radiative effect changes 0.06 W/m2 during 1996–2010, while the effective radiative forcing (ERF) is 0.42 W/m2.

So in other words, rather than acting to slow global warming during the past decade and a half as proposed by Kaufmann et al. (2011), changes in anthropogenic aerosol emissions (including declining emissions trends in North America and Europe) have acted to enhance global warming (described as contributing to a positive increase in the radiative forcing in the above quote).

This means that the “pause,” or whatever you want to call it, in the rise of global surface temperatures is even more significant than it is generally taken to be, because whatever is the reason behind it, it is not only acting to slow the rise from greenhouse gas emissions but also the added rise from changes in aerosol emissions.

Until we understand what this sizeable mechanism is and how it works, our ability to reliably look into the future and foresee what climate lies ahead is a mirage. Yet, somehow, the Obama Administration is progressing full speed ahead with regulations about the kinds of cars and trucks we can drive, the appliances we use, and the types of energy available, etc., all in the name of mitigating future climate change.

As we repeatedly point out, not only will the Obama Administration’s actions have no meaningful impact on the amount of future climate change, but it is far from clear that the rate of future change will even be enough to mitigate—or even to worry about.


Kaufmann, R. K., et al., 2011. Reconciling anthropogenic climate change with observed temperature 1998–2008. Proceedings of the National Academy of Sciences. doi: 10.1073/pnas.1102467108

Kühn, T., et al., 2014. Climate impacts of changing aersol emission since 1996. Geophysical Research Letters, doi: 10.1002/2014GL060349

Categories: Policy Institutes

Unanimous Supreme Court Slaps Down President Obama on Recess Appointments, Should've Gone Further

Thu, 06/26/2014 - 12:01

Ilya Shapiro

For the 12th time since January 2012, the Obama Justice Department has lost unanimously at the Supreme Court. This time it was over recess appointments, with all justices agreeing with that the Senate gets to determine when it’s not in session – which triggers the president’s power to appoint federal officials without Senate confirmation. (Indeed, that’s what we argued in the brief we filed). And that’s no surprise: based on oral argument, everyone was expecting the government to lose NLRB v. Noel Canning and lose big. For example, my colleague Nicholas Quinn Rosenkranz predicted a unanimous ruling at a Cato debate in January.

Unfortunately, the conventional wisdom about a narrow ruling was also proven correct. The only “rule” that emerges from Justice Breyer’s controlling opinion is that a three-day recess, the longest the Senate can adjourn without the House’s consent, isn’t long enough to enable recess appointments. That’s a very pragmatic decision and seems to confirm executive practice prior to recent years. It also happens to lack any connection to constitutional text (as Justice Scalia points out for four justices in concurrence), whose best reading indicates that only recesses between Senate sessions – not when, e.g., the Senate takes two weeks off around Christmas – count for purposes of activating the recess-appointment power. Moreover, that power is only textually justified to fill vacancies that arise during the recess itself, not for openings that the president didn’t happen to fill while the Senate was sitting. In other words, Justice Breyer’s unprincipled opinion, while limiting recent presidential practice, cements a much more expansive reading of that power than the Constitution allows. For practical purposes, we’ll see many more “pro forma” Senate sessions and also the empowerment of those who control the House – because, again, the Senate can’t recess without the House’s consent. Speaker Boehner, call your office.

To be sure, this ruling is a strong rebuke to this administration in this case, but the most that can be said for it more broadly is what Justice Scalia did in reading his concurrence from the bench this morning: “The Court’s decision will be cited in diverse contexts, including those presently unimagined, and will have the effect of aggrandizing the Presidency beyond its constitutional bounds and undermining respect for the separation of powers.”

Categories: Policy Institutes

The Case against 8

Thu, 06/26/2014 - 11:21

Robert A. Levy

In the video clip below, Chad Griffin, then Board President of the American Foundation for Equal Rights, discusses the battle for gay rights with Ted Olson, who successfully litigated California’s Prop 8 case.  Griffin suggests, in an apparent attempt at humor, that he might re-think his support for same-sex marriage after hearing that the Cato Institute and I, as Cato’s chairman, are outspoken advocates for marriage equality.

Regrettably, statements such as Griffin’s are too often misunderstood by less diligent members of the media and other casual observers who conflate libertarians and conservatives.  Cato has consistently embraced civil liberties, including but not limited to the right to same-sex marriage.  By contrast, conservatives – with whom we are mistakenly equated – have been selective in their endorsement of personal freedom.  Indeed, some conservatives, who vigorously promote federalism, have also promoted a Federal Marriage Amendment.  That amendment, which defines marriage throughout the country as “the union of a man and a woman,” would prohibit states from recognizing same-sex marriage within their own borders, even if desired by the state’s citizens.  What could be less compatible with fundamental principles of federalism?

More generally, conservatives agree with Cato on some issues – such as the right to bear arms, lower taxes, reduced spending, free trade, and less economic regulation.  Liberals agree with us on other issues – such as immigration reform, drug legalization, marriage equality, and a non-interventionist foreign policy.  Does that indicate libertarians are philosophically inconsistent?  No, it indicates quite the reverse – conservatives and liberals are philosophically inconsistent.  Conservatives want smaller government in the fiscal sphere, but they condone bigger government when it comes to empire building and regulating personal behavior.  Liberals want fewer government restrictions in the social sphere, but they embrace strict limits on economic liberties.  Unlike liberals and conservatives, Cato scholars have a consistent, minimalist view of the proper role of government.  We want government out of our wallets, out of our bedrooms, and out of foreign entanglements unless America’s vital interests are at stake.

Categories: Policy Institutes

Big Business Clashes with Libertarians and Tea Party over Ex-Im Bank

Thu, 06/26/2014 - 09:52

David Boaz

Two weeks ago I wrote about the efforts of big business to defeat libertarian-leaning legislators in states across the country. To confirm my point, on the same day the article appeared the Michigan Chamber of Commerce endorsed the opponent of Rep. Justin Amash, the one of whom I had written, “Most members of Congress vote for unconstitutional bills. Few of them make it an explicit campaign promise.”

Now a battle is brewing in Congress that pits libertarians and Tea Party supporters against the country’s biggest businesses. The Wall Street Journal headlines, “GOP’s Attack on Export-Import Bank Alarms Business Allies.” The “rise of tea-party-aligned lawmakers” is threatening this most visible example of corporate welfare, and David Brat’s attacks on “crony capitalism” in his surprise defeat of Eric Cantor have made some Republicans nervous. Amash told the Journal, “There are some large corporations that would like corporate welfare to continue.”

The biggest beneficiaries of Ex-Im’s billions are companies such as Boeing, General Electric and Caterpillar,  according to Veronique de Rugy, a senior research fellow at the Mercatus Center. Cato scholars have made the same point, including Aaron Lukas and Ian Vasquez in 2002 and Sallie James in 2011.

Matthew Yglesias of Vox notes, “The Export-Import Bank is a great example of the kind of thing a libertarian populist might oppose. That’s because the bank is a pretty textbook example of the government stepping in to arbitrarily help certain business owners.” And he points out that supporters of the Bank include the U.S. Chamber of Commerce, the National Association of Manufacturers, the AFL-CIO, Haley Barbour, and Dick Gephardt. He could have added Tom Donnelly of the American Enterprise Institute.

Rep. Adam Kinzinger (R-IL) said he worried about “a libertarian theology that’s really starting to creep in.” I hope he’s right.

Categories: Policy Institutes

Making Sense of Federal Housing Law, Once More With Feeling!

Thu, 06/26/2014 - 08:39

Ilya Shapiro

The Fair Housing Act was enacted to prevent discrimination in the buying, selling, and renting of homes on the basis of certain protected categories, including race. While it’s clear that the Act bars discriminatory intent, such as refusing to deal with members of a certain racial group, it remains an open question whether it covers claims of “disparate impact,” where the effects of a neutral policy—say, requiring a credit check—disproportionately harms members of the protected class.

In a new brief, Cato, along with the Pacific Legal Foundation and five other groups seeks to have this question answered in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project. This case involves a Texas program that allocates federal tax credits to developers to build low-income housing projects. The Inclusive Communities Project, which places low-income tenants in predominately white suburban neighborhoods, sued the Texas Department of Housing and Community Affairs because it disproportionately gave the credits to properties in minority-populated areas. ICP’s claim relied on the disparate impact theory, which reaches “conduct that has the necessary and foreseeable consequences of perpetuating segregation” and “disproportionately burden[s] a particular racial group.” The district court found for ICP after applying a ruling from another lower court that required defendants to justify their actions with a compelling governmental interest and prove that there were no less discriminatory alternatives.

While the case was on appeal, the U.S. Department of Housing and Urban Development issued regulations establishing a similar standard for Fair Housing Act disparate-impact claims. Under the new HUD regulations, the burden of proof shifts to the defendant if the plaintiff shows that the challenged practice “caused or predictably will cause a discriminatory effect.” The defendant must then prove that the challenged practice is “necessary to achieve one or more substantial, legitimate, nondiscriminatory interests,” but the plaintiff may still prevail upon showing that there was another practice with a less discriminatory effect. The Fifth Circuit panel adopted the HUD standard and remanded the case back to the district court, at which point Texas asked the Supreme Court to step in and answer two questions: (1) Whether disparate-impact claims are cognizable under the Fair Housing Act; and (2) what are the standards and burdens of proof that should apply if such claims are cognizable?

The Supreme Court previously granted cert. in two cases dealing with these issues—Magner v. Gallagher and Mount Holly v. Mount Holly Gardens Citizens in Action—but both settled before a ruling on the merits. While the Court has never explicitly considered the use of disparate impact under the FHA, the circuit courts have developed diverging jurisprudence. The D.C. Circuit has yet to address these issues at all, and HUD’s new regulations further confuse everything. The issue is ripe and the Court should rule in order to settle this split by recognizing that the text of the FHA doesn’t support disparate-impact claims.

The relevant provision makes it unlawful to “refuse to sell or rent … because of race.” Such language connotes a purposeful, causal connection between the refusal to deal and the person’s race. Compare that language to the Age Discrimination in Employment Act, which prevents an employer from taking action against an employee that would “adversely affect his status as an employee, because of such individual’s age.”  The Supreme Court allowed disparate-impact claims to proceed under that provision, contrasting it with another section of the ADEA that forbids “discriminat[ing] against any individual … because of such individual’s age.” Whereas the first section focused on the effect on the employee, the second focuses on the action of the employer. This finding is consistent with Title VI of the Civil Rights Act, which forbids intentional discrimination but not disparate impact. Review by the Court is needed to resolve the conflict between disparate impact and equal protection.

Subjecting defendants to liability for disparate impact forces them into unconstitutional race-conscious decision making, resulting in a de facto quota system. The Supreme Court should take this case and resolve the issue once and for all.

Categories: Policy Institutes

Small is Beautiful

Wed, 06/25/2014 - 16:46

Chris Edwards

Thank you for reading the Cato blog and doing what you do to help spread freedom. Now you have the chance to advocate liberty every day while you are going to work or running errands.

New at the Cato store is this handsome bumper sticker.


The sticker is appropriate for bumpers, hoods, fenders, and windshields, or even around your home on garage doors and mailboxes.

And here’s a special deal for Cato blog readers: the first 25 people to email my assistant Nick (nzaiac [at] cato [dot] org) with their street address will receive a free sticker.

And there’s more: members of Congress and top White House aides are eligible for as many free stickers as will fit on their Lexus and BMW bumpers! More than anybody else, these folks need a daily reminder that Small is Beautiful When It Comes to Government.

Categories: Policy Institutes

Sugar from Mexico: Who's Being Injured?

Wed, 06/25/2014 - 15:47

Daniel R. Pearson

On March 28, 2014, the U.S. sugar industry filed antidumping and countervailing duty (AD/CVD) petitions against imports of sugar from Mexico.  From the time that NAFTA’s sugar provisions were fully implemented in 2008, Mexico has been the only country in the world with unfettered access to the U.S. sugar market.  Sugar interests now are hoping to clamp the fetters back on.  It is not at all clear whether that effort will succeed.

Both the Commerce Department and the U.S. International Trade Commission (ITC) play important roles in this process.  Commerce must determine the extent of any dumping margin (selling at “less than fair value” due to pricing practices of individual firms) and any countervailing duty margin (benefit received by Mexican exporters from subsidies provided by their government).  The estimated dumping margins for the preliminary phase of the investigation range from 30 to 64 percent; they are likely to be adjusted based on additional information gained in the final phase of the investigation.  Commerce has not yet had an opportunity to establish CVD margins.  Given the degree of government involvement in Mexico’s sugar business, a CVD margin at some level seems likely.

The job of the ITC is to determine whether the domestic sugar industry has been “injured” by the imported sugar.  In its preliminary determination, the commission voted unanimously in the affirmative, which means that the investigation will go forward into its final phase.  This vote was not at all a surprise.  The legal standard for a negative vote in a preliminary determination is quite high.  To have voted in the negative, the ITC would have had to conclude that there was no “reasonable indication that a domestic industry is materially injured or threatened with material injury.”  That is a very difficult standard to meet on the basis of the somewhat limited preliminary record – often with inconclusive evidence – that must be compiled not more than 45 days after the case has been filed. 

So Commerce can be expected to impose temporary AD/CVD duties this fall at a level equal to their preliminary margins. The ITC is likely to hold its hearing as part of the final-phase investigation sometime early in 2015, with the vote taking place about a month later. 

What issues will the commission deal with as it makes a final determination on injury?  The statute requires that findings be made on three key issues:  (1) Volume.  Was the absolute volume of sugar imports from Mexico, or the increase in volume, significant?  (2)  Price.  Have there been significant price effects – underselling of U.S. prices by imported sugar, or price depression or suppression in the U.S. market?  (3) Impact.  Has the U.S. sugar industry experienced negative impact, such as declines in output, sales, market share, profitability, employment, etc? 

The public (non-confidential) version of the ITC’s opinion (Investigation Nos. 701-TA-513 and 731-TA-1249 can be accessed for free on the ITC website by registering here) makes clear that the commissioners found evidence of volume and price effects, as well as some impact on the domestic industry.  However, a similar outcome in the final investigation is far from preordained.  One of the reasons is that the legal standard is different in the final.  Instead of finding only a “reasonable indication” of material injury, the commission actually has to determine that the domestic industry has been materially injured, or is threatened with such injury. 

Another difference is that the three-year “period of investigation” (POI) will change.  Instead of beginning Oct. 1, 2010, the POI in the final will begin a year later.  In other words, marketplace trends are likely to be different.  A three-year downtrend in world sugar prices appears to have bottomed out in December 2013, with prices higher since then.  United States’ sugar prices also have been stronger.  So, in its final determination, the ITC will be working with an updated record and a more rigorous legal standard.

Another important issue is the question of “causation.”  Was any injury experienced by the domestic sugar industry actually caused by imports of sugar from Mexico?  The record shows that the market share of U.S. producers rose 4.2 percentage points over the POI. Were U.S. producers injured by a smaller 2.4-percentage-point increase in the share of imports from Mexico–especially when the big losers appear to have been producers in other countries, who lost 6.6 percentage points? 

There also are doubts as to whether any price effects were caused by imports from Mexico.  The preliminary record shows underselling of U.S. sugar by Mexican imports in 65.8 percent of measured transactions.  However, making those price comparisons no doubt was difficult because most of the imports from Mexico are of a grade called “estandar” (“standard,” in English), which has an intermediate purity range not produced in the United States. Comparing prices of products that are not identical can be tricky. Parties are actively contesting this issue.  How it is resolved could have a big influence on the case. 

A final uncertainty is the possibility that the sugar industries on both sides of the Rio Grande could enter into a “suspension agreement,” which would suspend the AD/CVD investigation.  In this scenario, Mexican and U.S. producers would consent to some form of managed trade in sugar, agreeing to restrictions on the volume of trade or the price at which imports could be sold. This approach would need to be blessed by Commerce, which tends to listen closely to the preferences of U.S. industries.  There are a number of precedents for such an arrangement, including one regulating shipments of Mexican tomatoes into the United States. 

What to say about such a suspension agreement?  Managed trade always will limit the gains that can be achieved by open and competitive markets, thus causing deadweight losses to consumers and the broader economy.  However, an agreement that allows some imports from Mexico clearly is preferable to large AD/CVD levies that allow none. 

Those who support economic growth and opportunity should hope that no suspension agreement is reached, and that the ITC ends the threat of AD/CVD duties by concluding that Mexican sugar has not injured the U.S. sugar industry.  The real injury in this marketplace is caused by the barrier between producers and consumers created by the U.S. sugar program.  It’s time to end that injury by taking those fetters off.

Categories: Policy Institutes

Family Reunification and Other Explanations for the Border Surge of Unaccompanied Children

Wed, 06/25/2014 - 15:45

Alex Nowrasteh

There are two main issues surrounding the increase in the migration of unaccompanied children (UAC) and asylum seekers in recent years that have recently reached crisis proportions.  The first is the treatment of those children who are apprehended by Border Patrol and how American policy is reacting to the surge. 

The second is explaining why UACs are coming.  Below I will lay out three different theories that attempt to explain the surge in UACs.  Each theory has some merit and I present evidence in support and opposition to each one.  

First Explanation: Family Reunification

Immigration by stages and family reunification could explain part of the UAC border surge.  Stage migration works like this:  First, the single breadwinner of the family immigrates to find work in the United States.  After getting established, finding employment, and figuring out how to function in his new country, the initial immigrant then sends for the rest of his family.  Sometimes the initial immigrant’s spouse will come alone while leaving the children in the care of extended family.  Often times, after the second parent is working, they will then have the funds to send for the children to join them in the United States. 

This pattern of family separation through stage immigration and eventual reunification is a desperate strategy undertaken by poor people who don’t have any other options.  Regardless, it explains part of the surge in unaccompanied children who are joining their unlawful immigrant parents and families who previously arrived in the United States.

Smuggling prices for unauthorized immigrants from Central America are higher than for unauthorized Mexican immigrants.  Mexicans pay about $4000 to be smuggled to the United States by land and $9000 to be smuggled in by sea.  Guatemalans pay about $7000.  But since Guatemalans are so much poorer than Mexicans, on average, it can take many more years for them to save for the trip, often meaning that both parents are more likely to come to the United States first to work and send money back to Guatemala to finance the sending of their children.  As a result, many of the children would come alone. 

The price of human smuggling has risen substantially due to increased U.S. border enforcement.  The higher price of migrating and the relative poverty of Central American migrants mean that families are more likely to be separated during the migration process, explaining part of the surge in UACs from Central America.  Ironically, increased border enforcement and crackdowns on human smugglers have probably caused more family separation and eventual reunification – partly explaining the scale of the current UAC migration.

Large numbers of unaccompanied children migrants surveyed in previous years mentioned “family reunification” as a justification for coming.  Thirty-six percent of all unaccompanied children surveyed prior to 2014 had at least one parent already in the United States.  This survey likely undercounts the family ties between these child migrants and their U.S.-based family because it excludes extended family connections.  Aunts, uncles, and cousins also provide a bridge for unaccompanied children to live in the United States.   


Nationality Percentage of Children with Both Parents in the U.S. Percentage of Children with One Parent in the U.S. Percentage of Children with At Least One Parents in the U.S. Percentage of Children with No Parents in the U.S. El Salvador

























Source:, pg. 63. 

During the Great Recession, the stock of unauthorized Mexican immigrants dropped in the United States.  A growing Mexican economy coinciding with a collapsing American one incentivized many unauthorized Mexican immigrants to return and stanched the flow of new arrivals.  According to Pew, there was a net decrease in the numbers of Mexicans in the United States from 2005 to 2010.  However, the stock of unauthorized immigration from other Central American countries shot up in 2010.


The large rise in UACs between 2011 and 2013 from Central American countries other than Mexico followed a large increase in the stock of unauthorized immigrants from those countries between 2009 and 2010.  Many of the UACs coming now are reuniting with their parents and extended families who unlawfully immigrated years before.


Source: and

So far in 2014, Mexican UACs are down almost 33 percent from their peak in 2013.  By the end of the fiscal year, it is unlikely that Mexican UACs will rise to the level of 2013.  A small rise in the stock of unlawful Mexican immigrants from 2009 to 2010 was followed by a rise in the number of Mexican UACs in 2012 and 2013.  A decrease in the stock of unauthorized Mexican immigrants from 2010 to 2012 was followed by a fall in the number of Mexican UACs from 2013 to 2014.

Source: and

Data collected at the end of this fiscal year will reveal how useful this theory is.  If the number of Mexican UACs in 2014 is less than in 2013, that would lend support to the family reunification hypothesis.  If the number of Mexican UACs by the end of 2014 climbs above that of 2013, then it would be evidence against the family reunification hypothesis.  If this hypothesis is correct, I would expect the number of UACs from Central America to increase this year over last year.  I lack data on the stock of unauthorized immigrants in the United States post 2012.  More data is required to properly evaluate this theory.

If the family reunification theory explains a large proportion of the increase in UACs, then legalizing the current stock of Central American unauthorized immigrants and allowing them to use the legal family based green card program to reunite with their families would decrease the numbers of UACs.  Furthermore, a large-scale lower skilled guest worker visa program available to Central Americans would incentivize circular migration, obviating the demand for family reunification in the United States.

Second Explanation: Violent Crime in Central America is Pushing Unaccompanied Children Out

This theory posits that UACs are being driven from their home countries due to violence.  The deteriorating crime situation has finally gotten so bad that the best choice for thousands of children and asylum seekers is to emigrate to the United States and other countries.  There is a lot of evidence to support this theory.  The United Nations High Commissioner for Refugees (UNHCR) survey of 404 UACs who arrived to the United States during and after October 2011 revealed that many decided to come because of escalating crime in their home countries.

Forty-eight percent of all the children interviewed said they experienced violence from organized and armed criminals like drug cartels, gangs, or state actors.  Sixty-six percent of the children from El Salvador cited violence from those organizations as their primary motivator for leaving and 21 percent discussed violence in the home.  Twenty percent of Guatemalans said violence from those groups was their primary motivator while 23 percent cited violence in the home.  Forty-four percent of Honduran children said they were threatened with violence or were victims of violence by organized armed criminal actors while 24 percent cited violence in the home.  Thirty-two percent of Mexicans cited violence in society while 17 percent complained of violence in the home.

The high murder rate in Central American countries is consistent with those tales of violence.  Since much of that violence is targeted against young people, it is consistent with why there has been a large increase in UACs.  The young are especially at risk of gang violence and homicides.  Sending young children before they are of age to be criminal targets seems prudent from the perspective of parents or family members in this situation.

Source: United Nations Office on Drugs and Crime

The increase in the number of Salvadorans, Guatemalans, and Hondurans seeking asylum in other Central American countries lends support to the criminal push theory.  The UNHCR has recorded a 712 percent increase in asylum claims in Central American countries from other Central American nationals.  There would not be an increase in asylum claims in other Central American countries unless there was a push factor in play.  However, the total increase in the number of asylum claims is very small.  It’s easy to see a large percentage increase in asylum claims when the starting numbers are so low.  While push factors are certainly in play, many UACs and asylum seekers are going to the United States.  There must be pull factors that are disproportionately attracting them.

Furthermore, the recent decline in homicide rates in Central American countries, 41 percent in El Salvador from 2011 to 2012, should not be accompanied with increased numbers of UACs if this theory is correct.  Perhaps other violence or criminal activity has become more pervasive in Central American countries and can explain the surge but homicides cannot do it alone.

Third Explanation:  U.S. Border Enforcement Policy is Pulling Immigrants Here

The most persistent theory attempting to explain the surge in unaccompanied children coming across the border is that they have been drawn here by the Obama administration’s so-called lax enforcement policy.  This is in addition to the usual economic magnet.    

Deferred Action for Childhood Arrivals (DACA), the program put in placed by President Obama in mid-2012 to temporarily defer deportations for some unauthorized immigrants who were brought here as children, could be a draw to unaccompanied children.  None of the children now coming across the border are eligible for DACA.  Regardless of the legal reality, there is clearly a building perception in some Central American countries that children will be able to stay in the United States because of DACA if they are apprehended by border patrol.

Survey data from the UNHCR survey of UACs from previous years showed that only 9 out of 404 of them mentioned that changes in U.S. immigration laws or enforcement was the reason they came.  Anecdotes certainly suggest that that number has increased in 2014, but by how much?  Interestingly, the surge began before DACA was announced by President Obama in mid-2012.  DACA could have fed the increase after 2012 though.  According to the survey of previous years, family reunification and violence were much bigger reasons for UACs to come to the United States.

Immigration enforcement along the U.S. border has not been gutted.  Beginning in 2005 there has been a large and sustained augmentation of Border Patrol resources and an expansion of their powers along the border.  Although apprehensions by Border Patrol have decreased during the Great Recession because fewer unauthorized immigrants are drawn to our lackluster economic growth, border enforcement has never been tougher and more apprehended border crossers have never faced harsher punishments.  The gate has clearly not been thrown open.

However, there is mounting evidence that few UACs are actually deported after their apprehension – with the exception of Mexican UACs who are returned.  That could be the basis for a signal to others in Latin America that U.S. immigration enforcement is very lax or that there are exceptions for children unauthorized immigrants.  Even if border enforcement has not been gutted, many UACs are turning themselves in because they think they will be treated leniently.  If the UAC believes they will be granted some sort of legal status, the actual state of border patrol and border enforcement is irrelevant to their decision.

Remember, other Latin American countries have also recently experienced increases in asylum seekers from El Salvador, Honduras, and Guatemala. Clearly, an asylum seeker from Honduras who tries to enter Panama is not incentivized to move because of President Obama’s supposed lax immigration enforcement or pro-legalization policy.  However, the number of asylum seekers going to other Central American countries is small.  Mixed and misinterpreted U.S. immigration enforcement signals have certainly incentivized some of the UAC emigration from Central America but it is not the only explanation.

United States’ policy for child asylum seekers could also explain some of the surge, although there was a considerable time delay.  Legal changes, including several laws in the early 2000s and a settlement agreement in 1997, require the government to release the juveniles from custody without unnecessary delay to the parent, legal guardian, adult relative, or others who can take care of the child.  Many of these children will be able to make asylum claims while others will eventually be deported.


All three of these theories explain at least part of the sudden increase in UACs in recent years.  As more data is made available by the government and more surveys are conducted of current UACs, a more complete picture will unfold and explain why the sudden increase in UACs is occurring.  Only then will an effective administrative long term solution be possible.

Categories: Policy Institutes

The Truth about Military Spending

Wed, 06/25/2014 - 14:58

Christopher A. Preble

In April, the CBO projected – based on current law – that the Pentagon would spend roughly $606 billion dollars in 2015. The just-passed House defense budget spends $570.4 billion. Both figures assumed, among other things, that we we would spend about $79 billion for overseas contingency operations (OCO), which is mainly for the war in Afghanistan. We have since learned that the Obama administration’s actual OCO request is likely to be “substantially smaller” than $79 billion, so perhaps $560 or $565 billion in total Pentagon spending when combined with their earlier base budget request.

One glance at Cato’s latest infographic* will tell you that even the lowest of these figures is too high.

For a little perspective, CBO’s original estimate of $606 billion dollars is roughly $10 billion more – in inflation-adjusted dollars – than the Pentagon spent in 2005, when the United States was engaged in wars in Iraq and Afghanistan, and is close to the United States’ Cold War peak of $611 billion in 1985, when the Soviet Union was spending an estimated $590 billion. Today, however, the United States is out of Iraq and is winding down its war in Afghanistan, and its nearest competitors – Russia and China – combined spend less than half as much as the United States on their militaries. Yet, some on the right continue to believe that Pentagon cuts should be off limits, including House Budget Committee Chairman Paul Ryan (R-WI), who argues that the United States should be spending much more on its military.

Rep. Ryan’s budget proposal would have busted the current spending caps to a tune of nearly $50 billion a year for the next decade. This would have amounted to $500 billion more than is currently projected, and around $1.7 trillion more than was spent in the decade following the Cold War. Incredibly, Ryan called for more spending while admitting that “the Department of Defense has repeatedly revised downward its estimates of the budgetary resources necessary to meet the nation’s security objectives.” Think about that: The military says that it does not need additional funding to meets its objectives, yet Ryan insisted that it should receive more money anyway. Luckily, if the budget that recently passed the House is any indication, few of Ryan’s colleagues seem to agree. Indeed, it now seems almost certain that we will spend less than CBO projected, and far less than Ryan called for. 

Some could argue that the United States can ill afford to cut its military spending given the current state of the world. Such cuts would only serve to embolden our adversaries like China and Russia, and exacerbate the turmoil in the Middle East, North Africa, and southwest Asia.

But, if anything, many of the current security issues in the world have resulted from America being too involved militarily. The U.S.-led war in Iraq, for example, certainly contributed to the current chaos in the Middle East. The war also undermined American influence by revealing the limits of America’s military power. The operation in Libya destabilized a country in which the United States had no vital interest, and showed Iran and others what happens when you negotiate away your nuclear program. And arming Syrian rebels has prolonged a civil war in which ISIS gained the strength, experience, and gear needed to launch a successful offensive into Iraq. It turns out that having an unrivaled military only gets you so far.

Americans can and should spend less on the military, because the U.S. military can and should do less, even in the face of what is happening in the Middle East, Eastern Europe, and Asia. And others, especially our wealthy allies in Europe and Asia, can, and probably should, spend more, as illustrated by another Cato infographic.

Beyond the numbers, however, it is important to maintain perspective. Although one might not know it from the images on television every day, the world, as President Obama stated, is less violent than it has ever been. Moreover, the threats to America’s vital national security interests are modest and manageable, and prudent reductions in America’s military spending won’t change that. Indeed, curing our power problem should make us safer, because it would limit our ability to become embroiled in unnecessary wars.



* Thanks to Travis Evans for his help in assembling these statistics, and in supervising the production of the various figures. 


Infographic sources (in order of figures listed, top to bottom):

Figures in 2015 inflation-adjusted dollars, unless otherwise noted.

2015-24 Paul Ryan = $6 trillion ($6.469 nominal): House Budget Committee, “The Path to Prosperity: Fiscal Year 2015 Budget Resolution,” Table S5, April 2014, p. 93.

2015-24 Current Law = $5.5 trillion ($5.987 nominal): House Budget Committee, “The Path to Prosperity: Fiscal Year 2015 Budget Resolution,” Table S5, April 2014, p. 93.

1992-01 = $4.3 trillion ($4.281): Department of Defense, “Fiscal Year 2015 Green Book,” Table 6-8 – Dept. of Defense BA by Public Law Title, April 2014, p. 133.

2005 = $596 billion ($596.3): Department of Defense, “Fiscal Year 2015 Green Book,” Table 6-8 – Dept. of Defense BA by Public Law Title, April 2014, p. 134.

2015 = $606 billion ($521 + $85): House Budget Committee, “The Path to Prosperity: Fiscal Year 2015 Budget Resolution,” Table S5, April, 2014, p. 93.

All above figures include OCO funding.

Cold War Average (1948-90) = $457 billion: Department of Defense, “Fiscal Year 2015 Green Book,” Table 6-8 – Dept. of Defense BA by Public Law Title, April 2014, pp. 129-132.

U.S. 1985 = $611 billion ($610.86): Department of Defense, “Fiscal Year 2015 Green Book,” Table 6-8 – Dept. of Defense BA by Public Law Title, April 2014, p. 132.

USSR 1985 = $590 billion: State Department, “World Military Expenditures and Arms Transfers: 1989,” Table I, Released October 1990, p. 65. Author’s inflationary calculations.

U.S. 2013 = $600 billion (2013 dollars): International Institute for Strategic Studies, The Military Balance 2014 (London: Routledge, 2014), p. 42.

China 2013 = $169 billion (2013 dollars): IHS Jane’s, Chinese Defense Budget, March 2014. Author’s inflationary calculations.

Russia 2013 = $68 billion ($68.2) (2013 dollars):  International Institute for Strategic Studies, The Military Balance 2014 (London: Routledge, 2014), p. 180.

Iran 2013 = $18 billion ($17.7) (2013 dollars):  International Institute for Strategic Studies, The Military Balance 2014 (London: Routledge, 2014), p. 318.


Categories: Policy Institutes

Poland’s Alliance with America: Worthless to Whom?

Wed, 06/25/2014 - 14:54

Doug Bandow

The outspoken Polish Foreign Minister, Radoslaw Sikorski, apparently believes his nation’s alliance with America is “worthless.”  Washington should not race to reassure him.  Instead, Warsaw should demonstrate why it is worthy of Washington’s support.

A weekly Polish publication received a recording of Sikorski’s conversation in which he declared:  “This Polish-American union is worthless.  It is even harmful because it gives Poland a false sense of security.  Complete [B.S.].  We get into conflicts with the Germans, with Russia, and we think everything’s great because the Americans like us.  Suckers.  Complete suckers.” 

There are suckers in the existing relationship, but they are American rather than Polish.

The United States spends more than four percent of its GDP on the military and accounts for three-fourths of total defense outlays by NATO members.  Poland has been patting itself on the back for recently hiking defense expenditures—to 1.8 percent of GDP.  Overall, America’s contribution to direct NATO expenditures is nearly ten times that of Poland.

The collapse of the Soviet Union exacerbated the discrepancy among alliance members.  While Washington preserved its globe-spanning military, the Europeans cut their armed forces significantly.

Worse, the alliance expanded willy-nilly to the Russian border, bringing in nations combining minimal military capabilities and serious potential disputes with Moscow.  None had ever mattered to American security, but Washington handed out security guarantees like hotels place chocolates on pillows:  everyone got one, including Poland.

American and European officials simply assumed that they would never have to make good on their promises.  Then came the crisis in Ukraine. 

The eastern-most members of the alliance started clamoring for reassurance.  No one was more insistent than the Poles.  Back before he thought the alliance was worthless, Sikorski stated:  “America, we hope, has ways of reassuring us that we haven’t even thought about.  There are major bases in Britain, in Spain, in Portugal, in Greece, in Italy.  Why not here?” 

As I point out in my latest article on National Interest online:  “The benefits to Poland of winning a defense commitment against Russia backed by a permanent garrison from the world’s superpower are obvious.  But what’s in it for America?  The relationship runs one-way.  Warsaw does not offer commensurate aid to the United States.”

As a substitute, Poland, like several other NATO members and member wannabes, participated in Washington’s foolish wars in Iraq and Afghanistan.  But even if the missions had been worthwhile, they didn’t compare to America promising to face down Poland’s potential nuclear-armed antagonist.  The United States could find itself facing catastrophic destruction if things went bad.

There is no security reason for the United States to risk war for Warsaw. Poland never was strategically important for Washington.  Even the Reagan administration did not consider military intervention in early 1982 when the Polish government cracked down on the Solidarity union after being threatened with a Soviet invasion.

Americans always felt sympathy for the plight of the Poles—for centuries stuck among avaricious empires.  Although unfortunate, even tragic, Poland’s situation is no casus belli for the United States.

Washington’s policy changed only when U.S. policymakers ceased thinking about NATO as a military alliance and began treating it as an international social club.  Thus Poland received a coveted Article 5 security guarantee.

The alliance is worthless only if the United States won’t back it.  Most administrations would see that as a threat to core commitments that could not be ignored.  Moscow would recognize that threatening Poland carried significant risks of confrontation with America.  That’s far from “worthless” for Poland.

Sikorski’s comments should be a wake-up call in America.  Washington has accumulated a host of welfare dependents in Europe and elsewhere.  Yet those whose teeth are most tightly clamped onto the U.S. teat show the least respect for America. 

The real sucker in this arrangement is Washington.  The United States should reconsider who it protects from whom, reserving “worthwhile” alliances for countries which offer something meaningful to America in return.


Categories: Policy Institutes

Riley and Wurie: Beyond "Get a Warrant"

Wed, 06/25/2014 - 14:45

Jim Harper

As Ilya noted earlier, the Supreme Court struck a blow for privacy and the Fourth Amendment today. It ruled that a warrant is generally required when law enforcement officers want to search a cell phone they have seized. Justice Roberts’ opinion for a unanimous court provides some crisp language:

Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life.” (citation omitted) The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant.

In this case, we pretty well knew we were going to get a win. So let’s set aside the trumpets and talk about the margin of victory. Did we get improvements in Fourth Amendment doctrine that will bolster privacy protection in cases to come? Only a little.

OK, let’s trumpet the case a bit. This is a unanimous case with a bright-line rule. It’s about the best outcome you could hope for in Riley and Wurie themselves (argued separately, decided together), and it’s a great vindication of the constitutional status of cell phones and our data on them.

Chief Justice Roberts seems to have brought the Court together on this one (save a niggling Alito concurrence) to produce a strong opinion that doesn’t show gaps among the justices. (They may all have felt a need to huddle, avoiding an open fight or the tipping of hands on the NSA spying controversy, for example.)

And on the major privacy controversy of the day, the Court did not tip its hand. It distinguished Smith v. Maryland, the case the government uses to justify gathering records about every U.S. phone. Smith held that using a pen register to gather phone calling information was not a search. “There is no dispute here that the officers engaged in a search of Wurie’s cell phone,” Chief Justice Roberts wrote, punting for the Court in this case based on the consensus among parties.

The errant decision in Smith relied on the “reasonable expectation of privacy” test arising from the 1967 case, Katz v. United States. The very good news from this decision is that the Court once again declined to use the Katz test in resolving a Fourth Amendment issue, as our briefs invited the Court to do (or not to do, as it were). Instead, the Court implicitly found that there were searches in both cases and that those searches were of persons, houses, papers, or effects. Then it examined the reasonableness of searching cell phones.

That’s important because it means that the Court is interpreting the Fourth Amendment more like a law and not as the stack of doctrines that I’ve previously called a “jumble of puzzles.”

Did the Court go all the way our way? Certainly not. The Court didn’t do the simplest thing we invited, which was to state explicitly that a cell phone is an “effect” under the Fourth Amendment. (It’s essential to the holding that a cell phone is an item protected by the Fourth Amendment, but the Court should have said so to model behavior for lower courts.) The Court also did not distinguish cleanly between “search” and “seizure,” which is a distinction that courts will have to navigate if they are to get right the harder Fourth-Amendment-and-technology cases.

There are delightful hints of our briefs’ influence on the case, though. (And what is this kind of write-up but an exercise in searching for—if necessary, inventing—your role in the development of the law?)

As our Wurie brief invited, the Court re-interpreted the decision in United States v. Robinson (1973) in a subtle but important way. Robinson approved the search of a crumpled cigarette pack owned by a person subjected to a traffic-related arrest. The Court incautiously granted a general right to search arrestees, including things they held which could have no relevant or destructible evidence and which created no risk to arresting officers. Since then, the Court has had to curtail the “container” doctrine that Robinson spawned.

Our brief commended the more granular analysis of searches and seizures that Justice Marshall had argued for in his Robinson dissent. Chief Justice Roberts was more granular with Robinson in this case, calling the examination of the cigarrette pack a “reasonable protective measure.” The idea of a general right to search arrestees, arising from Robinson, is further curtailed. There must be a constitutionally valid reason for going into an arrestee’s things.

The delightful (if contrived) ego-booster in the case, though, is the opinion’s reference to what use law enforcement may make of keys they acquire from an arrestee. In our Wurie brief, we emphasized that government agents had taken Wurie’s keys and used them to unlock the door of a home where they suspected he stayed. Inside the home at the time were a woman and her baby, who were not suspects in the case. While illustrating how keys applied to locks can be investigatory tools like cell phones when their electronics are activated, we also illustrated the gross extent to which the warrantless investigation of Wurie went—unlocking the door of a home behind which innocent Americans rested.

Using a cell phone to access cloud data, the Court wrote, “would be like finding a key in a suspect’s pocket and arguing that it allowed law enforcement to unlock and search a house.”

Whether Chief Justice Roberts or another justice picked up on our argument, we cannot know, but the decision used the key example to illustrate how possession of a tool or device does not allow any use of it law enforcement may wish to make.

There will need to be more cases that articulate details unexplored by the Court today, but the decision in Riley and Wurie are a solid vindication of the requirement that law enforcement wishing to examine the contents of cell phones must “get a warrant”—nice quote.

Categories: Policy Institutes

NIDA Director Has Misguided Views on Marijuana Legalization

Wed, 06/25/2014 - 13:06

Jeffrey Miron

Today’s Washington Post contains a Ruth Marcus interview of Nora Volkow, head of the National Institute on Drug Abuse.

Volkow opposes marijuana legalization; she believies it will generate a large increase in use, which will (allegedly) harm users and society.

No one knows how much use might increase under legalization; existing evidence suggests a modest change, but since few countries have fully repealed their drug (or alcohol) prohibitions, we do not have decisive evidence.

The fact Volkow ignores, however, is that if use increases substantially, this means many people perceive a significant benefit from increasing their use or from initiating use; that is a positive of legalization, not a negative!

Marijuana use can, of course, generate unwanted side effects, but Volkow exaggerates these enormously. And other goods, like alcohol, also generate negative spillovers; yet we keep them legal (in part) because they generate substantial benefits.

Volkow further ignores the fact that prohibition generates its own negatives, such as violence, corruption, poor quality control, civil liberties infringements, medical restrictions, enforcement costs, and foregone tax revenue (which forces other tax rates to be higher).

So even if legalization means far greater use, and even if this generates undesirable consequences, the sum of benefits for current and prospective users, combined with elimination of prohibition’s costs, makes legalization the right choice.

Categories: Policy Institutes

Unanimous Supreme Court Correctly Stops Police from Searching Peoples’ Entire Lives Willy-Nilly

Wed, 06/25/2014 - 11:54

Ilya Shapiro

In its ruling today in Riley v. California, the Supreme Court unanimously established a clear new rule for police-citizen interaction: The police can’t, without a warrant, search the digital information on cell phones they seize from people they arrest. This is a big deal because it means that being arrested for, say, not paying a speeding ticket, will no longer open you up to having your entire life examined by law enforcement. Unlike the satchels and billfolds of yore, people now carry essentially all their private documents with them at all times: address books, financial and medical records, photo albums, diaries, correspondence, and more. To allow police to review all of that information just because they happen to have arrested someone would violate the Fourth Amendment’s protection of personal papers and effects against unreasonable searches and seizures.

If the police have independent probable cause to access someone’s digital information, they can get a warrant. If they don’t, making an arrest shouldn’t give them license to go on a fishing expedition.

What’s really surprising about this ruling is that it’s both broad and unanimous. Sweeping rulings on high-profile subjects tend to split the Court, whether ideologically or, in criminal procedure cases like this one, between formalists and pragmatists. Unanimous rulings, meanwhile, tend to be cautious, splitting the baby in a way that doesn’t significantly change the law. Yet here we have a loud and unified “bright-line rule” that sets a major standard for the digital age. Kudos to the Court—and raspberries to the federal government, which has now had its expansive arguments rejected unanimously 11 times since January 2012.

Categories: Policy Institutes

Are Driverless Cars Fool-Proof? Not Quite

Wed, 06/25/2014 - 10:49

David Boaz

Randal O’Toole discussed the idea of safe, efficient, driverless cars in his book Gridlock: Why We’re Stuck in Traffic and What to Do about It and in this full-page Wall Street Journal essay in 2010. It wasn’t exactly a new idea – Norman Bel Geddes first imagined the idea 75 years ago at the New York World’s Fair of 1939 – but O’Toole was on the cutting edge of bringing it to more popular attention. And as he noted, one of the important benefits of driverless, or “self-driving,” cars is safety. As a driving-test site, citing British studies, says: “By far the biggest cause of road accidents is driver/rider error or reaction, which causes 68% of all crashes.” The loss of control, the reliance on mysterious computers, scares many of us. But there’s good evidence that computers can guide both airplanes and automobiles more reliably than human operators.

But maybe not all human operators.

Meredith Shiner of Yahoo! News reports:

Scientists from Carnegie Mellon University on Tuesday brought a prototype of a driverless car to Washington in an attempt to show Congress that it could embrace a future devoid of man-made errors. 

And then Congress broke that car.

It was not immediately clear whether the mere proximity to the Capitol created the series of events that led to an emergency switch being flipped, causing the car to shut down, or if an actual member of Congress did it….

In true Washington fashion, no one would take immediate responsibility for the developing car situation.

Okay, not entirely fool-proof. But getting there.

Update: NBC News reports: “D.C. Delegate Eleanor Holmes Norton hit the kill switch on the car before she was supposed to take a ride, and they couldn’t get it running again.”

Categories: Policy Institutes

Are Beef Prices at An All-Time High?

Wed, 06/25/2014 - 09:56

Marian L. Tupy

The press is reporting record prices for beef. According to a June 18 story in the New York Post,

“It’s a barbecue-season bummer! Meat, poultry and fish prices have spiked an average of 8 percent since last year — soaring to an all-time high, national data show. The cost of ground beef has gone up 11 percent… ‘Everything is going through the roof,’ said Jim Hopkins, 52, a supervisor at Associated Supermarket in the West Village, who has worked in the grocery business for 30 years. ‘I’ve never seen increases like this — where they jump as much as this.’”



Yet the World Bank data shows remarkable stability in the inflation-adjusted price of ground beef over the last half century. That is all the more remarkable considering that:

  1. There were 3 billion people in the world in 1960. Today there are 7 billion of us.
  2. In 1960, the average income per person was $3,000 (in inflation adjusted 2000 dollars). Today it is $7,500.
  3. More people earning more money = higher demand for meat, especially beef.
  4. Yet, beef prices are, roughly where they were in 1960.

So, cheer up and don’t let those pessimists spoil your barbecue-season.

Categories: Policy Institutes

When Does Defense Aid Work?

Tue, 06/24/2014 - 16:53

Jennifer Keister

The debate over an appropriate American response to Iraq’s resurgent violence and the threat of radical rebels has highlighted the challenges and risks of even limited U.S. assistance.

As I argue in a post at The National Interest, Iraq is emblematic of a larger challenge in U.S. foreign policy. President Obama’s West Point address last month emphasized the role of “partner nations” who may leverage US assistance to counter security threats within their own borders and regions. But the president’s speech and subsequent debate about it have largely failed to provide criteria for selecting these partners.

Both the threats (insurgency, instability, radical rebels) and the possible solutions (military advisers and training, direct intervention, pushing for better governance) have cropped up in discussion of numerous other events: Boko Haram’s kidnappings in Nigeria, Al-Shabaab’s siege of Westgate Mall in Kenya, unrest in northern Mali, continuing instability in Libya, and so on.

All of these policy suggestions constitute calls for foreign internal defense (FID) assistance. FID, or “Helping others defend themselves,” sounds like an attractive option while facing a fiscal and domestic political reality that limits prospects for direct intervention. However, the Iraq debate highlights a crucial question: how do we tell the difference between states we can “partner” into effective and self-sufficient stability, versus those that risk pulling the US into local quagmires or exacerbating security problems?

Policymakers, media, and the American public are asking these questions about Iraq, in part because we have a lot of information about Iraq’s internal dynamics. But we should ask these questions about other potential partners too.

Join us to discuss the challenges and opportunities of Foreign Internal Defense aid next month at our Cato Policy Forum on the topic. Register here.

Categories: Policy Institutes