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Brink Lindsey

Cato’s special online forum on reviving growth continues today with the following new essays:

1. Morris Kleiner makes the case against occupational licensing.

2. Tim Kane calls for more immigration.

3. Alan Viard advocates moving to a progressive consumption tax.

4. Donald Marron argues for a carbon-corporate tax swap.

 

Alex Nowrasteh

On Thursday, President Obama is expected to announce the specific provisions of his immigration executive order.  This order will have broad policy implications.  Below is a brief explanation of the changes in policy likely to be announced and their economic effects based on the leaked information.

Legalizations

The most contentious portions of the executive order will be the legalizations.  Many of the beneficiaries of all the legalization programs would be eligible for legal status through more than one program, creating significant overlap and making it difficult to predict exactly how many people would be eligible.  Below I will analyze each one and then sum up what the economic consequences are likely to be.

Expanded Deferred Action for Young Unlawful Immigrants

This would expand the deferred action for childhood arrivals (DACA) program that allowed unlawful immigrants who were brought into the United States when they were under the age of 16, resided here since June 2007, were under 31 years of age as of June 2012, who were not convicted criminals, and who were either high-school graduates or were still attending school.  Those deferred were eligible for a two-year work permit under the Code of Federal Regulations.  An estimated 1.7 million unlawful immigrants were eligible for this program but only 675,000 have been granted DACA status – about 40 percent of the total. 

Obama’s change would move the cut-off date from June 2007 to January 2010 and still apply to anyone who was brought here under the age of 16.  President Obama’s administration estimates that this could apply to nearly 300,000 unlawful immigrants.  As we saw with DACA, however, not all of those available will come forward because this legalization is merely temporary and they fear giving the government their identity information, among other reasons.  If DACA is any guide, about 120,000 additional unlawful immigrants will directly benefit from this provision.

A note about the 300,000 figure used by the Obama administration: Pew reports that there are 650,000 unauthorized minors without DACA or temporary protected status, but it is not clear how long these children have been in the United States, meaning many may have entered after January 2010 and therefore wouldn’t be eligible.  President Obama’s estimate could be too high or too low based on the paucity of data.

Expand Deferred Action for Parents of U.S. Citizens and Green Card Holders

This would be the biggest legalization in Obama’s executive order.  This would defer the deportations of unlawful immigrants who have been here for more than five years and who have children who are either U.S. citizens or green card holders.  The president estimates that this would apply to about 4.5 million unauthorized immigrants, and the Pew data supports this.

Expand Provisional Waivers to Spouses and Children of Green Card Holders

This would expand a provisional waiver program for the unlawful spouses and children of permanent residents and U.S. citizens.  As I wrote here, under current law, unlawful immigrant spouses or children of U.S. citizens can gain a green card if they return to their home country to apply at a U.S. consulate or embassy.  However, unlawful immigrants who have lived here are barred from returning for up to ten years once they leave the U.S. due to the three and ten year bars.  If this executive order goes into effect, unlawful immigrants can apply for a waiver of those bars.  Obtaining a waiver was made easier in March 2013.

It’s unclear how Obama would change this requirement.  Most likely, his order would significantly shorten the wait times abroad.  Ideally, the waiver would be approved more quickly for a larger group of people.  Those unlawful immigrants granted the waiver would then be able to travel to their home countries for interviews at U.S. consulates within weeks, rather than waiting years, in some circumstances.  They would then be able to enter the United States legally.

This would not remove the requirement to leave the United States for the interview at a consulate.  Expanded parole addresses that concern. 

Expanded “Parole”

Currently, the government allows “parole in place” for unlawful immigrant parents and spouses of U.S. military members.  Normally, unlawful immigrants cannot adjust their immigration status even if they are otherwise entitled to a green card through the immediate-relatives category because they were not inspected prior to their admission into the United States.  However, an infrequently used portion of the statute allows a parole of such unlawful immigrant as immediate relatives of U.S. citizens, allowing them to gain legal immigration status without leaving the United States.

Paroled immigrants would then be checked for criminal and national security violations, the same as other immediate relatives, and be able to adjust their status to a green card.  This would not apply to unlawful immigrants who were previously deported and illegally re-entered and to other categories of unlawful immigrants who would otherwise be unable to adjust their status.  When the U.S. citizen children of unlawful immigrants turn 21, they will then be able to sponsor their unlawful immigrant parents under this provision.

There are roughly 10.5 million unlawful immigrant adults in the United States.  Of those, 3.7 million have at least one U.S.-born child but other offenses will bar many of them from adjusting their status.

The Economic and Other Effects

The economic impact of this legalization will be positive.  In the wake of the 1986 Reagan amnesty, wages for legalized immigrants increased – sometimes by as much as 15 percent – because legal workers are more productive and can command higher wages than illegal workers.[i]  Being legal also allows these immigrants to invest in U.S.-specific human capital, like learning English, which will increase their productivity and wages.  Unlawful immigrants are less likely to make these investments in human capital because they could be deported, thus wiping out such investment.  We will likely see a similar increase in the wages of many of the unlawful immigrants legalized today.  This benefit would likely accrue to all of the working unlawful immigrants who would be legalized under this executive order.

Professor Raul Hinojosa-Ojeda of UCLA wrote a paper for Cato in 2012 in which he employed a dynamic model called the GMig2 to study comprehensive immigration reform’s impact on the U.S. economy.  He found that a full legalization of unlawful immigrants will increase U.S. GDP by about $700 billion dollars over the next ten years, primarily by allowing the legalized workers to be more productive.  Any impact of legalizations on GDP would be smaller under an executive order because many of them would be temporary and it would not cover the entire unlawful immigrant population, but it would still produce hundreds of billions of dollars of more GDP within ten years.

The 1986 amnesty can provide some clues as to what will happen to the unlawful immigrants who become legalized through the parole and waiver process, thus earning them green cards.  First, many of them will not naturalize.  By 2009, only 45 percent of those legalized under the 1986 Reagan amnesty eventually gained citizenship.  Most seemed perfectly willing to work and live here on a green card. 

A big reason why the number of unlawful immigrants increased so much in recent decades is that the three and ten year bars and greater border security raised the costs of returning to their home countries.  Prior to the bars being enacted in 1996, unlawful immigration was a largely circular phenomenon.  Unlawful immigrants would come for a few years, work here, return home, and often return to the United States again before eventually settling back in their home countries.  The three and ten year bars and boosted border security raised the cost of leaving the United States, prompting more unlawful immigrants to stay longer.  Legalizing these workers could prompt more circular migration and return to home countries, although the number will not be large because many of these immigrants have now lived here for so long.

Other Portions of the Executive Order

Other portions of the executive order are less controversial but will have important effects.

Expand High-Tech Immigration

This is the only proposal in the executive order that could immediately expand legal immigration.  The details are vague, but there are several ways the president could increase the number of highly skilled immigrants and migrants without running afoul of statutory quotas.

One way would be to not count the family members of employment-based green cards against the cap.  Under current immigration law, about 140,000 green cards are set aside for highly skilled workers with job offers from American companies.  But only about 45 percent of those green cards went to workers in 2013, with the rest going to their families.  The government currently counts family members against the numerical green-card quota for workers without legal basis.

By not counting family members against the cap, the number of employment-based green cards issued every year would more than double.  Such a change in counting green cards would not prevent the families of green card workers from coming; it would merely stop counting them against the cap.  This reform would have the added benefit of virtually eliminating the backlog of green cards for immigrants from India and China.

As immigration attorney Charles Kuck explains, Obama could also allow the spouses of H-1B visas to work, expand the definition of “extraordinary ability” for O-1 visas, and allow more companies affiliated with universities to obtain cap-exempt H-1B visas.  

End ‘Secure Communities’ and Start a New Program

Secure Communities (SCOMM) was a program begun in March 2008 and was initially piloted in 14 police jurisdictions by October of that year. At its peak, SCOMM was operational in over 3,000 jurisdictions in the United States, a 21,429 percent increase in jurisdictional reach during the first term of the Obama administration.  SCOMM links fingerprint from arrestees with government immigration and criminal databases.  If the Department of Homeland Security suspects an arrestee is an unlawful immigrant, it issues a detainer to hold the arrestee until the federal government can investigate.  SCOMM was effective at identifying and removing many unlawful immigrants but it was also supposed to decrease crime rates.  On the second point, it failed.

SCOMM did not decrease crime.  According to this paper that is forthcoming in the Journal of Law and Economics, “Secure Communities led to no meaningful reductions in the FBI index crime rate.  Nor has it reduced rates of violent crime – homicide, rape, robbery, or aggravated assault.  This evidence shows that the program has not served its central objective of making communities safer.”  Furthermore, immigrants in the United States are less crime-prone than the native born.

SCOMM also targeted many non-criminals who were arrested since the finger print check is at the point of arrest, not conviction.  Unlawful immigrants who commit violent and property crimes should be identified and deported, but a targeted enforcement system will likely be more effective than SCOMM without the collateral damage.

Prioritized Deportations for Serious Criminals

This would be a new Department of Homeland Security enforcement policy to prioritize the deportations of serious criminals, gang members, and others deemed a threat.  This is already done to a large extent but it could be improved.  Deemphasizing workplace raids and arrests of unlawful immigrants who do not have a driver’s license and focusing those resources on actual threats would be an improvement. 

Boost Pay for ICE Officers

Obama is proposing a pay increase for officers at Immigration and Customs Enforcement.  Since Congress appropriates funds, Obama cannot do this on his own.

Strengthen Border Security

This part of his plan would put additional enforcement resources along the border with Mexico.  This will continue a pattern since 2012 when Obama began to deemphasize interior enforcement and instead focused on border enforcement.

Regardless, more border security would not decrease unlawful immigration very much.  A lower-skilled guest worker visa program would be far more effective and cheaper than spending more tax dollars on trying to shut down a vibrant black market.  However, the president cannot create such a program on his own.

Promote Naturalizations

Obama may lower the naturalization fee by 50 percent for the first 10,000 applicants.  The current fee is $680.  This is a token measure.  The fee is likely too high but this is small potatoes compared to the other immigration problems dealt with here.

Conclusion

Whether this executive order is constitutional is the major question that is still unanswered.  Portions of this executive order will be unambiguously constitutional while others will skirt the line or could even cross it.  Ignoring that vital question for now and viewing the executive order in purely policy terms, it will produce positive economic effects and legalize a significant number of unlawful immigrants.

[i] Amuedo-Dorantes, Bansak, and Raphael, “Gender Differences in the Labor Market: Impact of IRCA,” American Economic Review, 2007.

 

Rivera-Batiz, “Undocumented Workers in the Labor Market: An Analysis of Earnings of Legal and Illegal Mexican Immigrants in the United States,” Journal of Population Economics, 1999.

 

Kossoudji and Cobb-Clark, “IRCA’s Impact on the Occupational Concentration and Mobility of Newly-Legalized Mexican Men,” Journal of Population Economics, 2000.

 

Kossoudji and Cobb-Clark, “Coming Out of the Shadows: Learning about Legal Status and Wages from the Legalized Population,” Journal of Labor Economics, 2002.

 

Baker, “Effects of the 1986 Immigration Reform and Control Act on Crime,” SSRN Working Paper, 2011.

Walter Olson

When the small town of Westminster in central Massachusetts announced plans to ban the same of tobacco entirely – not just in certain types of stores, or to younger buyers – townspeople came out loudly and in force to oppose the plan. That has thrown advocates back a bit [New York TimesMassLiveearlier]:

“They’re just taking away everyday freedoms, little by little,” said Nate Johnson, 32, an egg farmer who also works in an auto body shop, as he stood outside the store last week. “This isn’t about tobacco, it’s about control,” he said.

Right he is. And despite the Times reporter’s lifted eyebrow at the notion that “outside groups” are encouraging town officials to go forward with the ban, it’s worth asking how Westminster, Mass., population 7,400, came to have its very own “tobacco control officer.” Do you imagine the townspeople decided to create such a position with local tax funds? If so, read on.

For well over a decade the Massachusetts Municipal Association has run something called the Tobacco Control Technical Assistance Program, assisted by grant money from the state Department of Public Health. It does things like campaign for town-by-town hikes in the tobacco purchase age to 21, and town-by-town bans on tobacco sales in drug stores. It will surprise few that it has been in the thick of the Westminster situation.

This article, written for a friendly audience of public health advocates, frankly describes how the MMA project, with assistance from nonprofit and university groups as well as the Commonwealth of Massachusetts, worked to break down the reluctance of town health boards to venture into restrictions on tobacco sales (scroll to “Roles of the Massachusetts Tobacco Control Program, Local Boards of Health, and Tobacco Control Advocates”):

Local boards were enticed into hiring tobacco control staff by the DPH’s tobacco control grants. As a participant in the process explained, “[L]ocal boards of health looked at it as ‘oh, it’s a grant. Let’s apply for this grant. So now, what do we have to do, now that we’ve got it?’” … The grants dictated that local boards use those community members they had hired as their staff to assist them in enacting and enforcing tobacco control regulations…

The staff paid with money from outside the town seem to have seen their job as, in part, lobbying the local officials: “We’ve had to work on each individual board [of health] member to get them to come around,” said one.

The account continues with many revealing details of how the outside advisers managed to orchestrate public hearings to minimize critics’ voice, deflect challenges with “we’ll take that under advisement” rather than actual answers, and in the case of particularly intense opposition, “back off for a couple of months” before returning. “Grant-funded regulatory advocates were able to counter all of [opponents’] arguments and tactics.”

In other words, an extra reason for the townspeople of Westminster to be angry is that they have been paying to lobby themselves. And it’s worth knowing exactly how the game plan works, because similar ones have been rolled out to localities in various states not only on “tobacco control” but on “food policy,” environmental bans and other topics. Grass roots? If so, most carefully cultivated in high places.

[cross-posted and slightly adapted from Overlawyered]

Brink Lindsey

Here are the newest essays in the Cato Institute’s online forum on reviving growth:

1. Ramesh Ponnuru offers three ideas – on taxes, patents, and money.

2. William Gale argues for getting our fiscal house in order.

3. Jeff Miron proposes cuts in health insurance subsidies.

4. Adam Thierer calls for a culture of permissionless innovation.

Paul C. "Chip" Knappenberger

Enough already!

Why is Congress, the President, or anyone else, still talking about the Keystone XL pipeline?

This project is so small in the grand scheme of anything it boggles the mind anyone outside of those directly involved in building and operating it gives it a second thought.

That a discussion of the pipeline is still consuming government resources some six years after it was originally proposed epitomizes the grand waste of time and money that characterizes the current Administration when it comes to anything it thinks causes dreaded global warming.

In this case, the fault lies squarely with President Obama.

He could have killed the pipeline years ago if he wanted. Or better yet, he could have approved the pipeline years ago and we would now be reaping the benefits of it in whatever form those benefits may have taken (choose your favorites from among the lists that likely includes jobs, tax revenues, lower gas prices, energy security, ally cooperation, etc.).

But he did neither.

His highest priority seems to be leaving a lasting legacy of “doing something” about climate change. Again, his own EPA should tell him that even if we cut our emissions to zero, today, the amount of warming that would be “prevented” by 2100 is a mere 0.14°C.

And the Keystone XL pipeline is one of his biggest tools to keep planetary warming alive, at least in the media. As long as it is in limbo, people keep talking about it, protestors keep protesting about it, supporters keep lobbying for it, newspapers keep writing about it, and the rest of us are caught up in the spectacle.

The State Department has already found that the environmental impacts and risks from the project are acceptably low. I have already pointed out (to Congress even) the climate impacts of the project are nil. And all the while the Keystone XL pipeline has been delayed, the Alberta tar sands oil production has increased and is in the process of finding other ways onto the global market. Even the Nebraska court case that is often cited by the President as a reason for delaying a decision on the pipeline is more of a procedural issue than a real threat to the pipeline.

At this point, the Keystone XL is just another construction project. In fact, that is all it ever was. If it didn’t require crossing the border with Canada (which required a “presidential permit”), we never would have heard a peep about it.

The USAToday appropriately and succinctly summed up the situation in a recent editorial:

 Keystone is not an existential issue. It’s a 1,179-mile oil pipeline in a nation already crisscrossed by more than 150,000 miles of such pipelines. It’s long past time to say yes.

Agree completely. It high is time for the federal government to put this issue to rest and get down to issues actually deserving of this much attention (but don’t bet on it!).

 

 

Julian Sanchez

The push to rein in the authorities of the National Security Agency—covertly expanded by a secret court to permit indiscriminate bulk collection of Americans’ communications  and financial records—has become a truly bipartisan affair. In a way, this is nothing new: Liberals who recall the abuses of the Hoover era have long teamed with conservatives skeptical of government power in efforts to check excessive surveillance.  With a Senate vote looming to move forward with the USA FREEDOM Act, however, a still stranger mix of opponents is seeking to block what has emerged as the primary vehicle for intelligence reform in the post-Snowden era.

First, and least surprising, there’s the “More Catholic than the Pope” contingent—boosters of the intelligence community who seem convinced that the bill will somehow put Americans at risk, despite the insistence of Director of National Intelligence James Clapper that the proposed safeguards would not hinder intelligence operations. This stance is exemplified by a stunningly misleading Wall Street Journal op-ed penned by former Attorney General Michael Mukasey and forrmer NSA head Michael Hayden. Since the terrorist Islamic State group, or ISIS, is currently in the headlines, naturally it is invoked to tar the bill as “a reform that only ISIS could love.”  Never explained: Why, precisely, we should expect an authority to indiscriminately sweep up domestic telephone records to be a critical tool for monitoring a group that seems primarily concerned with consolidating its power overseas, not fielding operatives in the United States.  After all, even when it comes to domestic investigations—where one might have expected the NSA’s mass database to show its value—two independent review groups with full access to classified records have concluded that the program had little or none.  Incoming Senate majority leader Mitch McConnell has described the reforms as “tying our hands behind our back”—but a hand is a useful appendage.  On the public record, “tying our hair back” might a be more apt description—the bulk database has obscured the FBI’s by flooding the Bureau with dead-end “tips,” while any truly pertinent information it provided was invariably duplicative of records that agents had already obtained using traditional, targeted authorities.

Yet the USA FREEDOM framework actually preserves the core capabilities of this ineffective program: It creates a new mechanism for the government to do “connection chaining” by quickly and continuously obtaining, from multiple phone carriers, the records of suspected terror affiliates and their contacts. Mukasey and Hayden falsely decribe the new process as requiring a “warrant”—which it does not, on the consensus legal understanding that a “warrant” is a particularized authority based on the Fourth Amendment’s relatively high evidentiary standard of “probable cause.”  They also, somewhat comically, describe it as requiring the government go “scurrying” to telecomunications providers to “comb through” records, presumably by consulting a card catalogue.  Yet the point of the new framework, with a mandate that carriers provide “technical assistance” to NSA, is precisely to ensure that carriers can rapidly search their files to provide information about numbers once the secret FISA court has signed off (or, indeed, in advance of the court’s approval in an emergency).  Nor, indeed, do Mukasey and Haden so much as mention “National Security Letters,” a separate tool that can be used to obtain certain types of communications records without any judicial involvement. Unfortunately, the USA FREEDOM Act does not implement the recommendation of the President’s Surveillance Review group that these, too, require court authorization. Nor, conspicuously, does their tendentious discussion of the various safeguards currently in place mention the numerous massive and systemic violations of the rules imposed by the FISA court—violations that easily passed undetected for years precisely because NSA itself maintained the database rather than making particularized requests to carriers through the FISA court.

In short, the bill doesn’t really affect the government’s capabilities, only the way they’re implemented.  First, phone numbers to be searched will have to be specifically approved by the FISA Court—as Congress expected would be the case when it approved these authorities, and as has already been required since Februrary under a presidential directive.  Second, NSA will quickly obtain particular records, corresponding to “specific selectors” like phone numbers or other account identifiers, by passing its search queries to the carriers who already maintain those rather than compiling its own massive database, overwhelmingly consisting of irrelevant data about innocent people. This ought to be a pure win: A privacy protective re-architecting that reduces the potential for abuse without meaningfully interfering with the government’s ability to obtain the information in which it has a legitimate interest.   Which, of course, is why current intelligence officials have characterized the reforms as reasonable. Retired officials—the ones who implemented the bulk program and insisted its vast invasiveness was absolutely necessary—may be reluctant to admit they’ve been proven wrong, but their stubbornness does not amount to much of an argument.

More surprising, perhaps, is the opposition from NSA critic and civil libertarian Sen. Rand Paul (R-KY), who feels the bill doesn’t go far enough in reining in government surveillance.  I’m inclined to agree with that view—as are numerous other senators who plan to support the bill while offering amendments to strenghten it—but it’s hard to see how blocking this particular set of reforms makes it any more likely that other important changes to the law will be passed. Ending the bulk collection of communication records under one group of authorities may only be the first step on a long road to more comprehensive surveillance reform, but taking that step enables privacy groups and civil libertarian legislators to devote their full focus to building consensus around subsequent steps, like amending (if not eliminating) the general warrant authority created by §702 of the FISA Amendments Act of 2008.

Sen. Paul’s primary objection thus far has been that the USA FREEDOM Act “reauthorizes the PATRIOT Act,” which is rather misleading. The vast majority of the PATRIOT Act is, alas, permanent and in no need of reauthorization. Three provisions will, in fact, expire in 2015: The §215 business records authority under which the NSA’s bulk telephony program is operating, the never-used “lone wolf” provision blessing the use of intelligence tools against foreigners suspected of terrorism but unaffiliated with any larger group, and the “roving wiretap” authority giving analysts discretion to intercept a target’s communication across multiple communications channels without specifying them in advance to a court. The USA FREEDOM Act would, of course, overhaul the first authority while extending all three until 2017, aligning their sunset dates with the expiration of the §702 general warrant authority, and allowing these interdependent surveillance powers to be discussed and debated together.  By far the most significant of the expiring authorities is §215—yet history suggests that even if it were to expire, intelligence agencies could shift their current programs to one of the permanent authorities, such as the §214 “pen register/trap-and-trace” provision or the aforementioned National Security Letters, with largely cosmetic changes. The one other authority that has actually been used—roving wiretaps—ought indeed to be amended, but should probably not be entirely eliminated. So it would be more accurate to say that the USA FREEDOM Act involves a short extension of three Patriot Act provisions, but substantially reforms the one that’s actually important, while fixing several overlapping authorities that don’t expire in the bargain.

While Paul is motivated by an admirable regard for liberty and privacy, his arguments against this particular package of reforms stand up to scrutiny only slightly better than those of the cheerleaders for bulk surveillance.

Jeffrey Miron

Christopher Ingraham at The Washington Post’s Wonkblog has a terrific piece up today on Eric Holder’s refusal to use executive branch authority under the Controlled Substances Act to reclassify marijuana as a less harmful substance. The crucial portion is here:  

The crowning inconsistency of the federal drug control system has always been the classification of marijuana as a Schedule 1 substance under federal law, which makes it among the Worst of the Worst drugs as far as the DEA is concerned – literally as bad as heroin, and worse than cocaine! Drug reform advocates have pushed the DEA to change its position for years, citing decades of research on the relative harmlessness of weed compared to other drugs – including alcohol – but the agency hasn’t budged, even as public opinion has rapidly evolved.

The Controlled Substances Act, which set up the drug schedules in the early 1970s, explicitly places drug scheduling authority in the hands of the attorney general, and even instructs him or her to “remove any drug or other substance from the schedules if he finds that the drug or other substance does not meet the requirements for inclusion in any schedule.”

Much to the chagrin and outright befuddlement of drug law reformers, however, outgoing attorney general Eric Holder has repeatedly stated that any changes to the scheduling status of marijuana should be made by Congress.

Ingraham then explains that

a bipartisan group of congressmen asked the administration to [re-schedule marijuana] … In essence, the Justice Department and Congress are both begging each other to fix federal marijuana laws, but nobody’s doing anything.

As Ingraham writes, “Welcome to Washington in 2014.” 

Doug Bandow

Americans are angry with their politicians but nuanced in their political opinions.  Voters in Alaska simultaneously ousted their Democratic Senator and legalized the use of marijuana.  Floridians voted to allow the use of medicinal marijuana and reelected Republican Gov. Rick Scott.

In fact, Milton Friedman and William F. Buckley long argued against drug prohibition.  The electorate appears to be moving their way.

Which makes sense.  If you want to limit government and protect individual liberty, it’s impossible to ignore the ill consequences of arresting and imprisoning millions of people for using illicit substances. 

Drug use is bad.  Arresting people for using drugs is worse. 

But conservatives have another reason to abandon the drug war: federalism.

The Drug War has poisoned almost everything it touches.  The rule of law suffers.  Lawyers speak of the drug exception to the Fourth Amendment, since judges often sacrifice Fourth Amendment protections when drugs are involved. 

Constitutional interpretation is malformed.  In Gonzales v. Raich the Supreme Court held that Uncle Sam could regulate someone who grew marijuana for personal consumption under the interstate Commerce Clause.  The reasoning of conservative jurist Antonin Scalia was used by the legal Left to argue that ObamaCare was constitutional.

Federalism is another victim of the Drug War.  Many conservatives complain about the over-criminalization of life, with Washington encroaching on an area that’s traditionally a matter of state authority.

As some states decriminalized drug use and others allowed pot consumption for medical purposes, the federal government continued to prosecute all users and dealers.  The Tuesday election has provided another potential conflict. 

Citizens in Alaska and Oregon joined those in Colorado and Washington in legalizing marijuana.  While the national government can continue separately prosecuting users, it can’t force states to toss people in jail for using drugs.

Washington, D.C. is different.  District voters approved legalization by a more than two-to-one margin. 

However, since D.C. is under federal control, Congress can overturn District measures by passing a disapproval resolution within 60 days.  Or legislators can apply annual riders blocking measures from taking effect, a Republican tactic used for 11 years straight against a medical marijuana initiative passed by D.C. in 1998.

Maryland Rep. Andy Harris is leading the latest charge.  Earlier this year he won House approval for a legislative rider to block the D.C. city council’s vote to decriminalize marijuana, though the Senate refused to go along.

The GOP Senate takeover could give Harris a new opportunity.  But Sen. Rand Paul (R-KY.) is set to take over the District oversight committee in that body and is skeptical of federal preemption.

Whatever one thinks of the substantive issue—no surprise, I favor legalization—Washington should not dictate policy to other levels of government.  The fact that the District is a federal enclave doesn’t change the issue.

Congress can legitimately oversee a true federal zone.  But most of the District is irrelevant to the national government’s operations.  Residents should be allowed to manage their own affairs.  It is highly intrusive, even dictatorial, for Uncle Sam to insist that a subordinate government criminalize a particular activity against the wishes of the majority of the latter’s people.  

Moreover, while Congress can prevent the District from officially legalizing pot use, in practice Congress cannot force the District to enforce prohibition.   So what’s the point?

Federalism long has been a position of convenience for most politicians.  They tend to recognize state authority only when doing so advances their substantive ends. 

The District’s vote on drugs gives the GOP an opportunity to put principle before politics.  Voters in the District of Columbia, no less than those in Alaska, Colorado, Oregon, and Washington, should be able to decide on their criminal laws. 

As I argue on American Spectator online:  “More than anyone else, conservatives should affirm this right (and responsibility).  Let D.C. join the great laboratory of democracy known as the American states.”

Nicole Kaeding

The wars in Iraq and Afghanistan cost more than $1 trillion with billions going to Department of Defense (DoD) contractors. All of that spending has led to a large uptick in waste and fraud.

As much as $60 billion has been wasted on U.S. operations in those two countries, according to analysis from the Commission on Wartime Contracting in Iraq and Afghanistan. The Justice Department has brought more than 235 criminal cases since 2005.

The Associated Press highlights some examples:

In the past few months alone, four retired and one active-duty Army National Guard officials were charged in a complex bribery and kickback scheme involving the awarding of contracts for marketing and promotional material, and a trucking company driver pleaded guilty to bribing military base employees in Georgia to obtain freight shipments — often weapons which required satellite tracking — to transport to the West Coast.

More recently, a former contractor for the Navy’s Military Sealift Command, which provides transportation for the service, was sentenced to prison along with a businessman in a bribery case in which cash, a wine refrigerator and other gifts traded hands in exchange for favorable treatment on telecommunications work. Also, three men, including two retired Marine Corps officers, were charged with cheating on a bid proposal for maintenance work involving a helicopter squadron that serves the White House.

The story continues on with the long list of abuses:

Defense contractor Leonard Francis was arrested in San Diego last year on charges that he offered luxury travel, prostitutes and other bribes to Navy officers in exchange for confidential information, including ship routes. Prosecutors say he used that information to overbill the Navy for port services in Asia in one of the biggest Navy bribery schemes in years. Ethan Posner, a lawyer for Francis, declined comment.

Yet many others involve more mundane cases of contracting or procurement fraud. Consider the trucking company contractor in Afghanistan who bribed an Army serviceman to falsify records to show fuel shipments that were never delivered, or the former Army contractor who demanded bribes before issuing orders for bottled water at a military camp in Kuwait.

According to the story, the Defense Department acknowledges the issue and is working to improve the situation. But if this report is any indication, DoD has a long way to go.

Brink Lindsey

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

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

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

3. Eli Dourado proposes incentive pay for Congress.

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

 

 

Doug Bandow

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Nicole Kaeding

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

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

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

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

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

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

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

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

Daniel J. Mitchell

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

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

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

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

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

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

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

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

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

A) they can surrender.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

And that seemed to be good news for the GOP.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Jason Bedrick

“I thought he was going to shoot me.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Alex Nowrasteh

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

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

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

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

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

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

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

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

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

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

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

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

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

The Constitution

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

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

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

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

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

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

Conclusion

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

Brink Lindsey

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

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

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

3. Jonathan Rauch proposes a national apprenticeship system.

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

Ilya Shapiro and Trevor Burrus

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

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

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

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

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

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

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

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

You Ought to Have a Look is a feature from the Center for the Study of Science posted by Patrick J. Michaels and Paul C. (“Chip”) Knappenberger. While this section will feature all of the areas of interest that we are emphasizing, the prominence of the climate issue is driving a tremendous amount of web traffic. Here we post a few of the best in recent days, along with our color commentary.

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

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

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

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

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

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

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

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

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

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

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

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

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

Matthew Feeney

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

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

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

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

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

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

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

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

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

Neal McCluskey

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

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

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

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

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