Cato Op-Eds

Individual Liberty, Free Markets, and Peace
Subscribe to Cato Op-Eds feed

Ilya Shapiro

That’s the question I pose in my latest Forbes piece. Here’s a taste:

As any good lawyer knows, framing the question you ask a court is just as important — often more important — than providing a well-argued answer that helps your client. Well, when the Supreme Court, as expected, decided to take up gay marriage, it unexpectedly reframed the “questions presented” in the four cases it took up and consolidated for argument. Instead of accepting any of the formulations presented in the four petitions for review, it asked the parties to brief these two questions:

  1. Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex?
  2. Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

This was unusual; typically the justices simply decide whether to take a case based on the petitioners’ articulation. That’s why first-year legal-writing classes spend so much time working on those “questions presented.”

So what does this mean? UC-Irvine law professor Rick Hasen found the first question “odd” because it focused on state powers and obligations rather than individual rights, which ”perhaps keeps the court from getting into questions about heightened scrutiny for sexual orientation discrimination.” Harvard law professor Larry Tribe suggested that the reframed questions “technically leave open a middle path along which the court would prevent states from discriminating against same-sex couples lawfully married in their home states without requiring any state to take the affirmative step of issuing its own marriage licenses to same-sex couples.” (In my initial reaction to the cert grant, I speculated on the same compromise possibility but ultimately concluded that this was less likely than a clean win for the challengers on both questions.)

Read the whole thing. And I also recorded a podcast reacting to the Court’s decision to take up these cases.

David Boaz

Anticipating the inauguration of a rare Republican governor in Maryland, the state’s big Democratic jurisdictions are getting worried about their access to the state treasury:

Montgomery and Prince George’s officials are trying to make sure their counties are not forgotten by Gov.-elect Larry Hogan.

The Anne Arundel County Republican, who will be sworn in Wednesday, has pledged to pay more attention to rural Maryland, which he says was neglected during the administration of outgoing Gov. Martin O’Malley (D). Those rural counties also voted for Hogan by overwhelming margins….

“The uncertainty of the new administration creates more of an impetus . . . for larger jurisdictions to come together,” said Prince George’s County Council Chair Mel Franklin (D-Upper Marlboro), who wants to form a “large-county caucus” to lobby in Annapolis.

They have nothing to worry about, right? Surely a governor wouldn’t direct taxpayer dollars on the basis of political favoritism? As it happens, I’ve been watching Maryland politics for many years, and this story reminded of one that appeared in the Washington Post 20 years ago this week, when Parris Glendening became governor:

In his first major act as Maryland governor, Parris N. Glendening unveiled a no-new-taxes budget today that unabashedly steers the biggest share of spending to the three areas that voted most strongly for him: Montgomery and Prince George’s counties and Baltimore.

Glendening proposed cuts in welfare and other state programs so he can build more schools, fight crime and create jobs, particularly in those three urban areas, the only ones where Glendening (D) won a majority of votes Nov. 8.

I thought that was such a perfect encapsulation of politics at its finest that I’ve quoted it numerous times, including in my forthcoming book The Libertarian Mind. I also like to quote this charming and honest description of politics in a letter written by Lord Bolingbroke, an English Tory leader in the eighteenth century:

I am afraid that we came to Court in the same dispositions as all parties have done; that the principal spring of our actions was to have the government of the state in our hands; that our principal views were the conservation of this power, great employments to ourselves, and great opportunities of rewarding those who had helped to raise us and of hurting those who stood in opposition to us.

I recall reading that Charlie Peters, the legendary editor of the Washington Monthly, used to say that state legislatures are just committees for dividing up the loot, though I can’t find it online. If he didn’t, he should have.

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.

A lot of buzz around the web was generated late this week with the announcement from the U.S. National Oceanic and Atmospheric Administration that 2014 topped their list as the warmest year since their records began in the late 1800s.

While most of the mainstream media coverage focused on the record-setting temperatures and breathlessly spoke of how this was further indication that humans are warming the climate, the blogosphere was full of articles throwing cold water on this overheated rhetoric by pointing out that despite the past year’s warm temperatures, 1) global warming continues to occur at only a snail’s pace, and 2) this pace is far beneath that projected by the world’s collection of climate models—models developed for the specific purpose of projecting  future climate changes. With each passing year, their performance becomes worse and worse. That is the big story about 2014’s temperatures.

Here are some sites that astutely picked up on that:

Over at Climate Etc., Judy Curry has her say in “‘Warmest year’, ‘pause’, and all that.” Her bottom line?

Berkeley Earth sums it up well with this statement:

That is, of course, an indication that the Earth’s average temperature for the last decade has changed very little.

The key issue remains the growing discrepancy between the climate model projections and the observations: 2014 just made the discrepancy larger.

Speculation about ‘warmest year’ and end of ‘pause’ implies a near term prediction of surface temperatures—that they will be warmer. I’ve made my projection—global surface temperatures will remain mostly flat for at least another decade. However, I’m not willing to place much $$ on that bet, since I suspect that Mother Nature will manage to surprise us. (I will be particularly surprised if the rate of warming in the next decade is at the levels expected by the IPCC.)

At the Global Warming Policy Foundation, David Whitehouse takes on the 2014 temperature record and its implications in this article “2014: Global Temperature Stalls Another Year.” Like Curry, Whitehouse hits the nail on the head:

The only conclusion to be drawn from the addition of 2014 data is that the post-1997 standstill seen in global annual average surface temperature has continued for one more year, making it now about 17 years in duration. This is the opposite of what is claimed in the NASA press release.

It is clear beyond doubt by now that there is a growing discrepancy between computer climate projections and real-world data that questions their ability to produce meaningful projections about future climatic conditions.

And over at Watts Up With That, Bob Tisdale has a guest post titled “Does the Uptick in Global Surface Temperatures in 2014 Help the Growing Difference between Climate Models and Reality?” You’ve probably already guessed his answer:

As illustrated and discussed, while global surface temperatures rose slightly in 2014, the minor uptick did little to overcome the growing difference between observed global surface temperature and the projections of global surface warming by the climate models used by the IPCC.

As you may have noticed, we couldn’t agree more with all of this.

For the background behind these conclusions, be sure to visit each of these fine blogs and have a look!

Michael F. Cannon

Vox’s Sarah Kliff reports that Harvard University’s Theda Skocpol has produced a study purporting to show Congress intended for the Patient Protection and Affordable Care Act (PPACA) to authorize health-insurance subsidies through exchanges established by the federal government—even though the statute expressly and repeatedly says those subsidies are available only “through an Exchange established by the State.” Whether the PPACA authorizes those subsidies in the 36 states with federal exchanges is the question presented in King v. Burwell. The Supreme Court will hear oral arguments in King on March 4, with a ruling expected by June. Unfortunately for the administration and its supporters, Skocpol offers nothing either new or that supports the notion that Congress intended something other than what it expressly said in the statute.

What evidence does Skocpol claim to have found in support of her counter-textual interpretation of congressional intent? She combs through 68 analyses issued by the Congressional Budget Office during 2009 and 2010. She finds that in none of those reports did the CBO entertain the idea that the PPACA’s exchange subsidies might be available in some states but not others. She interprets this as both “excellent evidence” and “the best objective evidence we have that no one in Congress considered premium subsidies restricted to certain states to be either possible or desirable.”

Yeah, about that.

An alert Vox reader already informed Kliff that the claim that CBO never considered the possibility of exchange subsidies in some states but not others isn’t exactly true. The comprehensive health care bill approved by Democrats on the Senate’s Health, Education, Labor, and Pensions (HELP) Committee in 2009 (S. 1679) would have given states four years to establish exchanges themselves, after which point the federal government would establish an exchange. As my partner-in-crime-fighting Jonathan Adler and I write in an amicus brief filed with the Supreme Court in King:

S. 1679 asked each state to adopt certain health insurance regulations, and either establish an Exchange itself or ask the federal government to establish one “in” the state… S. 1679 withheld Exchange subsidies, as well as many of its insurance regulations, for up to four years until the state complied.

The CBO scored S. 1679 assuming that some states would establish exchanges early and some would not. Thus the agency’s cost projections assumed that exchange subsidies would be available in some states but not in others. So we’ve already got a problem with Skocpol’s analysis.

What Skocpol, Kliff, and her otherwise alert reader missed—which they would not have missed if they read our brief—is that the HELP bill permanently withheld exchange subsidies if a state failed to implement that bill’s employer mandate. Again, from our brief:

After four years, the federal government would establish an Exchange “in” the state and implement guaranteed-issue and community-rating rules even stricter than those found in the PPACA. If a state thereafter failed to implement the bill’s employer mandate, S. 1679 withheld Exchange subsidies permanently—even in a federal Exchange.

Emphasis in original. In fact, the HELP bill would have withheld exchange subsidies in both federal exchanges and state-established exchanges if the state did not cooperate by implementing the bill’s employer mandate. Even the government’s amici concede the HELP bill, which was merged with the Finance Committee’s health care bill to form the PPACA, conditioned exchange subsidies on states implementing the law. So much for Skocpol’s claim that “no one in Congress considered premium subsidies restricted to certain states to be either possible or desirable.” (Senate Democrats discarded this part of the HELP bill when crafting the PPACA, but retained and strengthened the Finance bill’s language conditioning exchange subsidies on states establishing exchanges.)

Why is this relevant to Skocpol’s analysis of the CBO’s cost projections? Because, as Adler and I write in our brief,

the CBO likewise scored S. 1679 (the HELP bill) as providing Exchange subsidies in all states, even though—as all sides acknowledge—the bill withheld Exchange subsidies in non-compliant states.

In other words, the fact that the CBO assumed there would be subsidies in all 50 states under the HELP bill or the PPACA does not indicate that Congress did not intend to condition those subsidies on state cooperation. The CBO also assumed that the PPACA’s Medicaid-expansion subsidies would be available in all states. Does that mean those subsidies were not conditional on state cooperation?

None of this is news to people who have been following King and related cases. Skocpol could have saved herself a lot of time by reading a December 2012 letter from CBO Director Douglas Elmendorf to congressional inquisitors, in which Elmendorf admits CBO staff “did not perform a separate legal analysis” of whether the PPACA only offered exchange subsidies (like Medicaid subsidies) in cooperative states. The CBO just assumed subsidies would be available in all states, under both the HELP bill and the PPACA, despite clear statutory language conditioning those subsidies on state cooperation. The simplest and kindest explanation is that the CBO shared the universal assumption among PPACA supporters—acknowledged even by the government’s leading advocate in King, University of Michigan law professor Nicholas Bagley—that all states would establish exchanges or otherwise cooperate in the law’s implementation. As Adler writes, “widespread state resistance was not seen as a real possibility until the dramatic GOP pick-ups in state legislatures in fall 2010.”

Skocpol’s study is just the latest in a series of silly and desperate attempts to bolster the government’s untenable position in King v. Burwell. The law is clear, and the government is on the wrong side of it.

Ilya Shapiro

As widely expected—and widely requested in myriad legal filings—the Supreme Court has agreed to review state laws that deny marriage licenses to same-sex couples, as well as those that deny recognition of such marriages formed in sister states. While the high court ducked these issues in October, at that time there was not yet a “circuit split”: all federal appellate courts to have ruled on the issue had struck down the state laws. When the Cincinnati-based Sixth Circuit went the other way in November, today’s “decision to decide” was assured.

Moreover, based on the firm briefing schedule that the court has established, it’s clear that the justices intend to hear argument this term—meaning that we can expect a final ruling the last week of June. (This puts paid to my prediction that the Court would grant the case but delay argument till the first week of next term, in October.)

So how will the Court rule? Assuming that Justice Anthony Kennedy is the swing vote—a pretty safe assumption—it’s hard to see him giving full victory to the states. It would be odd indeed if the author of the landmark gay-rights opinions in Romer v. Evans (1996), Lawrence v. Texas (2003), and United States v. Windsor (2013) suddenly shied from taking the final logical step in that direction. At the same time, it’s at least conceivable that a strong federalist like Kennedy, perhaps joined by Roberts, could find himself in the moderate (and therefore legally controlling) position of striking down the non-recognition of out-of-state marriages while not requiring the issuance of marriage licenses themselves. Maybe. The smart money is still on a 5-4 ruling establishing that this Fourth of July everyone throughout the land will be able to marry without regard to sexual orientation.

While the Supreme Court isn’t a political institution in the conventional sense, the justices don’t live in a vacuum and so are rarely caught too far ahead or behind popular opinion. As Americans’ views on same-sex marriage have shifted dramatically in the last decade, it quickly became just a matter time before the Court found itself with a case it had to take on an issue that can only be decided one way. This eventual ruling—hopefully on equal-protection grounds rather than some nebulous results-oriented hand-waving—will undoubtedly create not insignificant controversy, but the writing has long been on the wall.

Roger Pilon

The Washington Post has just reported that Attorney General Eric Holder today announced that, without evidence that a crime occurred, the Justice Department will end its practice of “adopting” civil asset forfeiture cases brought to the department by state and local enforcement agencies. The usual motive for such “equitable sharing” is to help local police departments to circumvent state restrictions aimed at stopping abuses, which arise because once the property is seized, on mere suspicion that it may have “facilitated” a crime, the local police departments keep it.

Such abuses, brought about by those perverse incentives, have led many states to require that any property so seized be turned over to the state’s general treasury. To get around that, state and local police departments ask the Justice Department to “adopt” the case, after which the assets are then split between the Justice Department and the local police department. Without evidence that a crime occurred, that is the practice that will end.

There are deeper problems with American civil asset forfeiture law, however, starting with the very practice of seizing property on the mere suspicion that it may have “facilitated” a crime. A crime does not have to be proven because it is the property that is said to be “guilty” under this bizarre area of our law, its roots in the Middle Ages. Thus, Volusia County, Florida, police stop motorists going south on I-95 and seize any cash they’re carrying in excess of $100 on suspicion that it’s money to buy drugs. New York City police make DUI arrests and then seize drivers’ cars. District of Columbia police seize a grandmother’s home after her grandson comes from next door and makes a call from the home to consummate a drug deal. Officials seize a home used for prostitution and the previous owner, who took back a second mortgage when he sold the home, loses the mortgage. No crime is ever proven. No prosecution is even begun.

In 1995 Cato published the late Rep. Henry J. Hyde’s book about these abuses, which led to partial reforms of federal law in 2000. But the core of the law remained. And abuses continued under state law. Today’s announcement is an important step toward limiting some of those abuses, but more needs to be done. See here and here for more on this subject.

Jason Bedrick

Ever since Georgia enacted a scholarship tax credit law in 2008, individual and corporate taxpayers in the Peach State could receive dollar-for-dollar tax credits in return for contributions to nonprofit scholarship organizations—at least until the $58 million cap is reached.

Donors are eligible to receive credits starting on January 1st of each year. In 2012, the last of the credits were claimed in mid-August. The following year, donors hit the cap in May. Last year, they hit it in just three weeks. This year, all the credits were claimed within hours of becoming available on January 1st. In fact, taxpayers applied for more than $95 million in credits, $37 million more than the cap.

Scholarship families are highly satisfied. In a 2013 survey of families receiving scholarships from Georgia GOAL, 98.6% of respondents reported being “very satisfied” or “satisfied” with their chosen school.

Clearly, both the demand for scholarships and the willingness of taxpayers to support scholarship students have grown far beyond what the law currently allows. It’s time to raise the cap. Georgia legislators considering pending legislation to raise the cap to $250 million should be encouraged by two additional facts. First, the best evidence suggests that the tax credit law saves money by reducing expenses by more than it reduces tax revenue. Second, two-thirds of Georgians support the scholarship tax credit law. In other words, it’s good policy and good politics.

In other states that cap the amount of scholarship tax credits available—such as Florida, Pennsylvania, and Rhode Island—donors consistently hit the cap each year. Two recent exceptions—New Hampshire and Alabama—highlight the adverse effects of lawsuits on fundraising. After anti–school choice activists sued to block New Hampshire’s Opportunity Scholarship law, donations dropped off precipitously because of the uncertainty about the law’s future. Fortunately, the state supreme court unanimously rejected the challenge last summer, so we should expect a significant increase in donations this year.

In Alabama, scholarship organizations raised only half as much in 2014 as they did in 2013 because of the uncertainty created by government education establishment’s legal challenge. The lawsuit is likely to meet the same end as similar lawsuits in Arizona and New Hampshire, but the plaintiffs are harming thousands of children while the case is being litigated.

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

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.”

New Actions to Reduce Methane Emissions Will Curb Climate Change, Cut Down on Wasted Energy” reads the headline from Wednesday’s White House blog, posted by Counselor to the President John Podesta (who will be leaving this post soon to serve as a senior adviser to Hillary Clinton’s presumed 2016 presidential campaign).

Let’s hope Podesta didn’t write the title, because it is completely wrong.

First off, methane isn’t energy. It’s a gas. Like anything else, it can be converted to energy, and like a fuel the conversion process produces more energy than it takes to perform it. But methane leaks from the oil and gas sectors no more represent “wasted energy” than does cow flatulence.

More accurately, methane leaks represent lost revenue. Or at least they would if natural gas prices were higher. With prices as low as they are, companies sometime find it more costly to stop the leaks than what they gain by capturing the methane and bringing it to market.

Consider that the price of natural gas is so low in many regions where oil is being extracted from tight shale deposits (for example, the Bakken region of North Dakota and in west Texas) that the methane that is produced along with the oil is simply flared (burned) on site, rather than being captured and brought to market. It is more expensive to develop the transport infrastructure (largely it has to be transported via pipeline) than the return on the sale of natural gas.

The U.S. Energy Information Administration reports that in 2013, more than 260 billion cubic feet of methane was flared in the United States. In essence, this methane represented more “unwanted” energy than “wasted” energy.

But methane flaring is not the target of the new EPA regulations; instead, methane leakage is. In fairness, when it comes to climate change, on a unit basis, leaked methane is more important than flared methane, because the flaring process converts the methane to carbon dioxide (among other things), which has a much lower “global warming potential” than does methane.

This “global warming potential” is why methane leakage is targeted in the first place by the Obama administration—it is another “we are doing something about climate change” excuse for increasing the reach of the federal government.

The amount of methane that falls under the new EPA regs is very small; in the grand scheme of global warming, it is so small as to be climatically immaterial (which is the other thing wrong with Podesta’s blog headline—it won’t “curb” climate change a whit).

In 2013, methane emissions accounted for about 9% of greenhouse gases emitted in the United States. (Carbon dioxide accounted for 82%.)  Of this 9%, about 3% are the subject to the proposed EPA regulations—which seeks to cut those emissions in half.

So how much “climate change” would such regulation avert in the future? Here’s a back-of-the-envelope calculation:

Using our handy dandy temperature savings calculator, you can find out that if the United States were to cease all carbon dioxide emissions now and forever, the amount of global warming that would be “saved” amounts to 0.10°C by the end of the century (assuming a 2.0°C climate sensitivity, which is more realistic than the 3.0°C value the EPA is fond of). So if halting 87% of our greenhouse gas emissions produces a saving of 0.10°C, then halting 1.5% of our greenhouse gas emissions produces about 0.002°C of temperature savings.

That’s it. Two-thousandths of a degree of warming averted by the new EPA regulations!

Perhaps what is most odd with the newly proposed regulations is that in their absence, methane emissions from the natural gas and oil sector, according to the EPA’s own data, have declined about 10% since 2008—a time when U.S. oil and natural gas production has skyrocketed.

In fact, all of this decline has come from the natural gas industry. (Methane emissions from oil production has actually increased slightly.) Why? Largely because natural gas producers want to limit losses of the very thing they are trying to produce. Consequently, they have developed and employed new technologies to prevent leakage all along the line from drilling, to transportation, to processing. Undoubtedly, they will continue to do this in the future.

So, the ongoing and self-incentivized trend toward declining emissions, along with an imperceptible influence on global warming, means that the newly proposed methane regulations from the EPA are completely unneeded.

This leads to the conclusion that they are being imposed for appearance’s sake only—appearing to burnish President Obama’s climate legacy with an eye toward increasing his clout during this December’s United Nations climate meeting. There, in Paris, he is going to champion a new, “legally binding” treaty on climate change. The same was supposed to happen during the Copenhagen meeting in 2009, where posturing hype was the order of the year. That didn’t work out very well, as the meeting was a complete failure. We anticipate a similar result will come out of Paris.

Patrick J. Michaels

Yesterday, Jason Samenow of the Washington Post asked me for a brief comment on NOAA’s upcoming pronouncement of the warmest year in their record. Jason runs CapitalWeather (or “CapitalWeatherGang” or “CWG” to those in the know in Washington) for the Post, and it is a very popular site as he may be the best forecaster around when it comes to D.C.’s hard-to-predict winter weather.

Here is what I sent to him:

Whether or not a given year is a hundredth of a degree or so above a previous record is not the issue. What IS the issue is how observed temperatures compare to what has been forecast to happen. John Christy and Richard McNider, from the University of Alabama (Huntsville), recently compared climate model projections to observed lower atmospheric temperatures as measured by two independent sources: satellites and weather balloons, and they found that the average warming predicted to have occurred since 1979 (when the satellite data starts) is approximately three times larger than what is being observed. CWG would give itself probably a D- if it forecast 12 inches of snow and got only 3.

FYI, here’s the comparison, through 2013 (it was published in 2014).

Chris Edwards

I love Adam Smith. He didn’t get everything right, but he got the big things right. Oftentimes, he really nailed it.

Today, I woke up early and my newspaper had not arrived yet. So I cracked open The Wealth of Nations on the infrastructure section, Book V, Part III.

With the highway bill soon in front of Congress, and there being lots of agitation to increase federal funding, Smith had words of wisdom for policymakers. He advocated user-pays and decentralization.

Smith said user-pays is often possible, is equitable, and prevents political corruption, as opposed to what we saw with the Bridge to Nowhere:

It does not seem necessary that the expence of those public works should be defrayed from that public revenue, as it is commonly called, of which the collection and application are in most countries assigned to the executive power. The greater part of such public works may easily be so managed, as to afford a particular revenue sufficient for defraying their own expence, without bringing any burden upon the general revenue of the society.

A highway, a bridge, a navigable canal, for example, may in most cases be both made and maintained by a small toll upon the carriages which make use of them: a harbour, by a moderate port-duty upon the tunnage of the shipping which load or unload in it.

… When the carriages which pass over a highway or a bridge, and the lighters which sail upon a navigable canal, pay toll in proportion to their weight or their tunnage, they pay for the maintenance of those public works exactly in proportion to the wear and tear which they occasion of them. It seems scarce possible to invent a more equitable way of maintaining such works.

… When high roads, bridges, canals, &c. are in this manner made and supported by the commerce which is carried on by means of them, they can be made only where that commerce requires them, and consequently where it is proper to make them. Their expence too, their grandeur and magnificence, must be suited to what that commerce can afford to pay. They must be made consequently as it is proper to make them. A magnificent high road cannot be made through a desart country where there is little or no commerce, or merely because it happens to lead to the country villa of the intendant of the province, or to that of some great lord to whom the intendant finds it convenient to make his court. A great bridge cannot be thrown over a river at a place where nobody passes, or merely to embellish the view from the windows of a neighbouring palace: things which sometimes happen, in countries where works of this kind are carried on by any other revenue than that which they themselves are capable of affording.

Smith said that when user revenues are not enough to pay for useful infrastructure, it should be funded by local governments, not the national government. The result will be higher quality services, lower costs, and less chance of abuse:

Even those public works which are of such a nature that they cannot afford any revenue for maintaining themselves, but of which the conveniency is nearly confined to some particular place or district, are always better maintained by a local or provincial revenue, under the management of a local and provincial administration, than by the general revenue of the state, of which the executive power must always have the management. Were the streets of London to be lighted and paved at the expence of the treasury, is there any probability that they would be so well lighted and paved as they are at present, or even at so small an expence?

… The abuses which sometimes creep into the local and provincial administration of a local and provincial revenue, how enormous soever they may appear, are in reality, however, almost always very trifling, in comparison of those which commonly take place in the administration and expenditure of the revenue of a great empire. They are, besides, much more easily corrected.

Jeffrey Miron

Yes, according to the Attorney General. And the “crime” of possessing drug paraphernalia is serious enough to warrant deportation of a legal permanent resident:

At the U. S. Supreme Court Wednesday, the question before the justices boiled down to whether a sock can be considered drug paraphernalia.

Each year 30-35,000 people are deported for drug crimes. But federal law does not treat all drug crimes equally. The question before the justices was whether the government can deport legal permanent residents for minor drug offenses.

Moones Mellouli came to the U.S. on a student visa from Tunisia in 2004. He graduated with honors, then went on to earn two master’s degrees—in applied mathematics and economics—from the University of Missouri-Columbia. He became a lawful permanent resident, worked as an actuary, and taught mathematics at the university.

But in 2010, he was arrested for driving under the influence and having four Adderall pills in his sock. Adderall is a drug prescribed to treat hyperactivity, but it’s widely used by students and others to study and stay awake. Millouli pleaded guilty to a misdemeanor for possession of drug paraphernalia—namely the sock in which he had the four pills. He got a suspended sentence plus a year’s probation, and he was subsequently deported.

He appealed his deportation all the way to the Supreme Court.

Happily, the world is not entirely crazy: the Justices were quite skeptical of the goverment’s position:

The government’s argument that these paraphernalia convictions all justify deportation was greeted by the justices with unabashed incredulity.

“Because of the sock,” the crime justifies deportation, asked a wide-eyed Justice Ruth Bader Ginsburg.

“Do you think a sock is more than tenuously related to these federal drugs?” piled on Justice Antonin Scalia.

The best one-liner, however, came from Justice Elena Kagan (former dean of Harvard Law School):

He had four pills of Adderall, which if you go to half the colleges in America … and just randomly pick somebody, you’d find Adderall.

Apparently “that brought the house down, and probably the government’s case too.”

Trevor Burrus

Yesterday, the website Reddit, which is aptly called “the front page of the Internet,” featured an interesting discussion on attempts to overturn Citizens United, the 2010 Supreme Court case that held that the First Amendment protects the right of corporations and unions to make independent expenditures in elections. A group of five people working to overturn the decision fielded questions from the community in a so-called “Ask Me Anything” (AMA) thread. Past AMAs have been created by a wide-range of famous and interesting people, including Jon Stewart and even Barack Obama.

The five advocates titled the thread “We’re Working on Overturning the Citizens United Supreme Court Decision – Ask Us Anything!” Fielding questions were Aquene Freechild from Public Citizen, Daniel Lee from Move to Amend, John Bonifaz from Free Speech for People, Lisa Graves from Center for Media and Democracy, and Zephyr Teachout former candidate for New York governor and associate professor of law at Fordham University.

At the beginning of the AMA they proclaimed:

January 21st is the 5th Anniversary of the disastrous Supreme Court Citizens United v. FEC decision that unleashed the floodgates of money from special interests.

Hundreds of groups across the country are working hard to overturn Citizens United. To raise awareness about all the progress that has happened behind the scenes in the past five years, we’ve organized a few people on the front lines to share the latest.

Surprisingly, at least to me, the AMA was a disaster. Reddit caters to younger people and, as such, it is generally quite left-wing. The Reddit “Politics” community, in particular, is known for having a substantial left-wing tilt. I had thought the community would rally around the advocates—pat them on the back, complain about the Koch brothers, and pontificate on how no “real” policy change can occur until “big money” is silenced.

Instead, the community not only asked excellent and difficult questions, but they clearly identified the fundamental problems with the advocates’ position.

The advocates didn’t help their cause by not answering many questions. This is a big Reddit no-no, a violation of “Reddiquette.” It is certainly a bad idea to create a thread called “Ask Me Anything” and then answer only a few questions, while ignoring the hard ones.

The top-rated comment (the comment with the most “upvotes” will be at the top) asked some particularly difficult questions. User SaroDarksbane asked:

The Citizens United case was about a non-profit organization that wanted to air an advertisement for a film they made that was critical of a politician and was told by the government that is was illegal for them to do so.

  • By overturning this decision, aren’t you advocating that the government have the legal right to censor political speech?

  • The eventual Supreme Court decision was that censoring political speech (especially during an election) was against the first amendment. Why do you disagree with that opinion?

  • Are you worried that allowing government censorship of political speech could ever backfire against you or the causes you support, should the reins of power be handed to politicians who disagree with you?

  • For any political opinion you hold, how much money would a politician of the opposite opinion have to spend on advertisements to cause you to vote against your opinion at the polls?

The last question is quite interesting, and it went largely unanswered. Many advocates for increased campaign finance restrictions seem to think that the opinions of the “average person” (which does not include them, of course) are easily overcome with the brute force of money. (I’ve written more on this here.) Jonah from Public Citizen responded:

Billionaires and mega-corporations (and institutions that represent them like the U.S. Chamber of Commerce) spend a tremendous amount of money to research how people will respond to various messages and use this money to successfully influence the outcome of elections. They bring people to office who do not represent the interests of those who are electing them.

The first sentence seems little better than invoking a type of mind control. The second sentence is a bald admission that he and his organization are trying to censor speech in order to keep people from making bad decisions against their “interests,” which I’m sure are highly correlated with Jonah’s own political positions. He adds that restricting campaign speech is important because “Truth is drowned out.” Although campaign finance restrictions are unquestionably about censorship, rarely have I seen such a straightforward admission of that fact. Apparently, some people and organizations should be silenced because if hoi polloi hear it they might be forced to vote against their “interests.” 

Another perceptive user, bbbjorkman, asked:

Can you please explain why you think “unleash[ing] the floodgates of money from special interests” is such a bad thing? Simply showing that more money is being spent on elections now than in the past doesn’t, in and of itself, prove anything normative.

For every Koch or Karl Rove there’s a Soros or AFL-CIO or Tom Steyer—why is trying to silence them better than, for instance, simply requiring full and fair disclosure?

Finally, I’m assuming you’d want an exception to your amendments/laws/regulations for corporations that publish newspapers and magazines. Can you please explain why The New York Times Company doesn’t pose the same supposed risks to our democracy that, say, Crossroads GPS does (in your minds, at least)?

Those excellent questions also went unanswered.

Given the amount of bad press Citizens United has received, especially on Reddit in the past, it was incredibly enlivening to see the community galvanize such an effective response. It was also surprising to see the advocates give such inadequate answers. Perhaps, when you advocate censorship, it is difficult to answer such pointed questions.

For more on Citizens United, come to Cato next Wednesday, January 21, for a half-day event put on by the Center for Competitive Politics, “Citizens United v. FEC after Five Years.” A live stream will also be available. For more on campaign finance in general, check out episode two of “Free Thoughts,” the podcast I co-host with Aaron Ross Powell. 

Tim Lynch

From today’s New York Times editorial page:

What is a year of your life worth? How about 10 years? Or 20? In many ways the question is unanswerable: Who can assign a dollar amount to the experience of watching a child grow up, of being able to care for an elderly parent?

But when the government has wrongfully convicted and imprisoned someone, a cash payout is the most meaningful way to make amends and achieve some measure of belated justice….

Thirty states, the federal government and the District of Columbia have laws providing for compensation to the wrongfully convicted — from $5,000 per year in Wisconsin to $80,000 per year in Texas. But, over all, almost a third of those exonerated get nothing.

Wait, let’s go over that one more time: A third of the persons wrongfully imprisoned receive no compensation from the government?  What to make of policymakers who manage to spend billions of dollars and yet say there is no room in the budget for compensating the victims of government mistakes or misconduct?

Roger Pilon

Just when the West is struggling to make clear to the rest of the world the nature and importance of free speech—and the underlying political separation of sacred and secular—Pope Francis weighs in and muddies the waters. Responding during a flight to the Philippines today to press questions about the Charlie Hebdo killings in Paris last week, the Pope said clearly that “One cannot make war [or] kill in the name of one’s own religion, that is, in the name of God. To kill in the name of God is an aberration.” He said also, however, that free speech does not imply total license to insult or offend another’s faith: “One cannot provoke, one cannot insult other people’s faith, one cannot make fun of faith. Every religion has its dignity.”

So far so good—insofar as his “cannot” implies simply that one “ought not” to make fun of another’s faith, as a matter of good behavior, other things being equal. That caveat is necessary because there are times when religious claims and, especially, practices are rightly ridiculed, as when they threaten to restrict the freedom of those of no or of other faiths. Thus understood, however, the Pope is simply distinguishing between what one has a right to do—speak freely, even if offensively—and what one ought to do—refrain from giving gratuitous offense.

But the Pope did not stop there. He added, “In freedom of expression there are limits, like in regard to my mom”—alluding to an earlier comment, “If [a dear friend] says a swear word against my mother, he’s going to get a punch in the nose. That’s normal.” To be sure, it may be “normal,” but it breaks down the distinction between speech and force—and opens the door to justifying the use of force to punish speech. If legitimate in the personal sphere, why not in the public sphere as well? In fact, American law has such a doctrine, the “fighting words doctrine,” which the Supreme Court held in 1942 in Chaplinsky v. New Hampshire to refer to words that “by their very utterance inflict injury or tend to incite an immediate breach of the peace” and are among the “well-defined and narrowly limited classes of speech the prevention and punishment of [which] … have never been thought to raise any constitutional problem.”

But that doctrine has never sat comfortably within our free speech jurisprudence, and in fact it has been steadily narrowed over the years, for good reason. The proper response to offensive speech is speech in turn. Otherwise, were the force of law to be sanctioned as a proper response, there would be no end to the fine lines that would need to be drawn to distinguish when and when not force would be justified—and no clear bounds on official powers to sanction. Indeed, do we need more than to look around the world to places where speech is not protected? Surely, the Pope did not mean to open the door to blasphemy laws, but he cracked the door just a little.

Randal O'Toole

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

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

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

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

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

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

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

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

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

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

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

Ted Galen Carpenter

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

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

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

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

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

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

Emma Ashford

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

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

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

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

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

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

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

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

Mark A. Calabria

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

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

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

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

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

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

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

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



Alex Nowrasteh

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

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

Exempting Dependents

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

2013 Employment Based Green Cards: Families and Workers

Source: 2013 Yearbook on Immigration Statistics, Table 7.

Exempting U.S. Stem Degree Holders

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

Exempting Extraordinary Ability and Outstanding Professors or Researchers

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

Improving I-Squared

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

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

2013 Adjustment of Status and New Arrivals for EB Green Cards


Source: 2013 Yearbook on Immigration Statistics, Table 7.

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


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

Patrick J. Michaels

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

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

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

Senator Paul?