Daniel J. Ikenson
Jobs are good. Exports create jobs. We create exports. Renew our charter.
Such is the essence of the marketing pitch of the U.S. Export-Import Bank, whose officials have begun ramping up their lobbying efforts ahead of a 2014 vote concerning reauthorization of the Bank’s charter, which expires in September. Last go around, in 2012, Ex-Im ran into some unexpected turbulence when free-market think tanks, government watchdog groups, and limited government Republicans in Congress raised some compelling – but ultimately ignored – objections to reauthorization.
The ostensible purpose of the Ex-Im Bank is to assist in financing the export of U.S. goods and services to international markets. Even if that were a legitimate role of government, the public must keep a watchful eye on how much and to whom loans are made – especially given the current administration’s tendency to bet big on particular industries and specific firms, and in light of its commitment to seeing U.S. exports reach $3.14 trillion in 2014.
From the U.S. Export-Import Bank’s 2013 Annual Report:
The Ex-Im Bank’s mission is to support American jobs by facilitating the export of U.S. goods and services. The Bank provides competitive export financing and ensures a level playing field for U.S. exporters competing for sales in the global marketplace. Ex-Im Bank does not compete with private-sector lenders but provides export financing that fill gaps in trade financing. The Bank assumes credit and country risks that the private sector is unable or unwilling to accept. It also helps to level the playing field for U.S. exporters by matching the financing that other governments provide to their exporters. The Bank’s charter requires that the transactions it authorizes demonstrate reasonable assurance of repayment.
The defensive tone of this mission statement anticipates Ex-Im critics’ objections, but it certainly doesn’t answer them. The objectives of filling gaps in trade financing passed over by the private sector and expecting a reasonable assurance of repayment are mutually exclusive – unless the threshold for “reasonable assurance” is more risk-permissive than the private-sector’s most risk-permissive financing entities. Therefore, Ex-Im is either putting taxpayer resources at risk or it is competing directly with private-sector lenders for customers in need of finance. And if the latter, then as it seeks to create the proverbial “level playing field” for the U.S. companies whose customers it finances, Ex-Im is un-leveling the playing field for the finance industry, as well as for the U.S. firms in industries that compete globally with these U.S-taxpayer financed foreign companies.
The Bank does more harm than good. It assists some – mostly large, politically savvy, deep-pocketed – U.S. companies at the expense of others. When U.S. taxpayers provide the financing for foreign companies’ purchases from U.S. companies, they are subsidizing the foreign competitors of downstream U.S. companies. This is analogous to the tariff-rate quotas of the U.S. sugar program, to give one example, which benefit cane and beet producers and refiners, but put U.S. sugar-using firms in the food processing, bakery, and confectionary industries at disadvantages vis-à-vis their foreign competitors, who have access to cheaper sugar. It is an exercise in picking winners and losers with the winners being those firms and industries with the most effective K Street operations.
Delta Airlines objected and even went to court on the grounds that Ex-Im’s financing of Air India’s purchase of 30 Boeing aircraft subsidized its foreign competition. Likewise, Cliffs Natural Resources, a mining company that operates three iron ore mines in Minnesota and one in Michigan, continues to object to Ex-Im’s $694 million financing of an Australian iron mine’s purchases of U.S.-made bulldozers and trucks from Caterpillar, locomotives from General Electric and drilling rigs from Copco. According to the Duluth News Tribune, “[t]he Roy Hill project in Australia’s outback is so big and so remote that entire new cities, ocean ports, roads, an airport and a 220-mile railroad are being built for a single mine that annually will produce 55 million tons - more iron ore than all U.S. mines combined. The project is owned by billionaire Gina Rinehart, the richest person in Australia.”
Leaving the question of why U.S. taxpayers should be subsidizing purchases of Australia’s richest person aside, iron ore extracted from Australian mines competes with U.S. iron ore for customers in the steel industry. In that regard, the Roy Hill project financing benefits some U.S. equipment manufacturers at the expense of U.S. mining interests and U.S. steel producers, whose Asian competitors get cheaper raw materials. This imbalance, this picking of winners and losers, this battle in the political arena that should be occurring in the marketplace will persist as long as the Ex-Im Bank is open for business.
The validity of these and many other objections notwithstanding, after several months of debate and deliberation in 2012, Republican leadership in Congress not only caved to establishment pressure to reauthorize the Bank’s charter, but also upped its annual allowance by 40 percent to $140 billion. One “rebellious” Republican who voted against reauthorization in 2012 is Jeb Hensarling, who now chairs the House Financial Services Committee, which will consider the reauthorization bill this session. The Ex-Im reauthorization debate and vote will provide Hensarling and other Republicans the opportunity to distinguish free-market capitalism from the crony variety that has given capitalism a bad name.
In this Washington Examiner column from last week, Tim Carney suggests that by opposing reauthorization of the Ex-Im bank, the GOP can make the 2014 elections a referendum on corporate welfare. Let’s hope he’s right.
As this issue is likely to become topical in the weeks and months ahead, following is a list of papers, op-eds, and blog posts written by Cato scholars (mostly by Sallie James, who has moved on to new endeavors) over the years.
Earlier today, Attorney General Eric Holder asked the U.S. Sentencing Commission to reduce sentences for a broad range of federal drug crimes. This is a long way from legalization, but it goes in the right direction. More broadly, Holder’s action signals that drug crime will continue to fade as an enforcement priority for the federal government. This makes it easier for state and city governments to scale back enforcement as well.
As long as drug prohibition is on the books, it has potential for great harm. In particular, a new administration can easily reverse the Obama administration’s enforcement priorities.
But the harm from prohibition increases with the level of enforcement, so any de-escalation is welcome. And perhaps political realities dicate that gradualism is the way to eventually eliminate prohibition entirely.
Michael Gerson, former speechwriter to Bush the Younger and perennial libertarian antagonist, has denounced Rand Paul’s foreign policy views. That should surprise no one, but the manner in which he did so bears discussing.
Gerson’s bill of particulars is as follows:
The younger Paul has proposed defense cuts, criticized foreign aid, led opposition to U.S. involvement in Syria, raised the possibility of accepting and containing a nuclear Iran and railed against “possible targeted drone strikes against Americans on American soil.”
Each of these is its own argument, but what’s more interesting is how Gerson broadens the discussion in an attempt to paint the younger Paul in a conspiratorial light:
His libertarian foreign policy holds that America is less secure because it has been “too belligerent” and that decades of international engagement have both corrupted our constitutional order and corrupted other nations with our largess or militarism.
Reasonable people can disagree about the extent to which U.S. foreign policy has gone off the deep end in recent decades. Also, with due acknowledgment of the victims of U.S. “engagement” in places from Laos to Iraq, people could also disagree about the extent to which our militarism has “corrupted other nations.” But nobody with a lofty perch like Gerson’s should dispute the idea that international engagement has corrupted our constitutional order.
You could fill a library with the volumes that demonstrate how war and preparation for war—which is what Gerson means by “engagement”—have contributed to the growth of the state and the evolution of American political, economic and legal institutions. As that last link shows, influential American legal scholars are hailing Nazi jurist Carl Schmitt as “our hero” in providing the legal case for an unchecked presidency, with James Madison playing the republican bad guy.
And it is the height of irony that Gerson holds up for ridicule the idea that our foreign policy has corrupted our constitutional order the very same week that a U.S. Senator—who is a strong partisan of the CIA—gave a 40 minute speech lambasting the Agency for spying on the legislature in the context of the latter’s investigation of the CIA’s use of torture, or if you prefer, “enhanced interrogation techniques.”
Warrantless NSA spying on Americans, senior Executive Branch officials baldly lying to Congress about it with no consequences, the tortured legal reasoning that led to Guantanamo Bay, the American president claiming the power to assassinate a US citizen with no meaningful legal or legislative oversight on the grounds that he’s talked it over with his legal team, the internment of more than a hundred thousand American citizens for the crime of having had the wrong ancestors… One could go on.
The people who framed our constitution were the sort of people who opposed forming a standing army at a time when European empires were mucking around in the Western hemisphere. So whatever his disagreements with Rand Paul on foreign policy, Gerson could stand to consider—or better yet, do some reading—about how war and militarization have “corrupted our constitutional order.” It’s a bit of an open-and-shut case.
As the New York Times reported yesterday, President Obama intends to barge unilaterally into a hotly contested area of employment law by ordering the Department of Labor to develop regulations “to require overtime pay for several million additional fast-food managers, loan officers, computer technicians and others whom many businesses currently classify as ‘executive or professional’ employees.” As with the expansion by decree of minimum wage law, it will be interpreted in some quarters as an undiluted boon to the employees it covers – their employers will either raise their pay or limit the hours they are expected to work, or both, and how could they be anything but happy about that? But as the piece quotes Cato’s Dan Mitchell as warning, ”There’s no such thing as a free lunch… If they push through something to make a certain class of workers more expensive, something will happen to adjust.”
At Forbes, Daniel Fisher explains some of the mechanisms by which that will happen. It will probably become harder to retain exempt status, for example, for “management-plus” jobs, such as one where a shift manager is expected to fill in occasionally at the register during a cashier’s break. That will hit smaller establishments especially hard, while yanking away transitional positions by which ambitious hourly hires can cross over to management. Moreover:
…non-exempt employees will be watched more closely to avoid tripping the sort of litigation threat that increasing numbers of labor lawyers are looking out for. Working at home could become taboo, since the employer has more difficulty monitoring hours and working conditions. Employees who harbor the perhaps foolish idea that by working hard and taking on greater responsibilities they can move up in the organization will instead be told to go home and relax.
Already, wage-and-hour lawsuits are a thriving hub of litigation, since the law sets up a retrospective guessing game as to whether or not exemption will be upheld: “Enterprising plaintiff attorneys have made hundreds of millions of dollars pursuing lawsuits on behalf of stockbrokers, mortgage loan officers and other white-collar professionals not normally associated with punch-the-clock, shop-floor labor.”
For years, some lawyers have been advising clients not to hand out company-paid cellphones to any workers who lack a lawful overtime exemption, lest a claim later be made that work was done on the phones during evenings and weekends. Where the law is particularly stringent about calculation of lunch breaks, as in California, some lawyers have advised employers to make it a firing offense to do any work during the allotted break.
Obama’s edict is anything but a done deal: it will first enter the slow and contentious Department of Labor regulatory process, and if the Senate turns Republican with this November’s election, the chances of stopping it in Congress will improve. Should it go into effect, however, it will sow widespread disruption in the business sector, deepen suspicion and polarization at the workplace, and frustrate ambitious individuals who willingly tackle long hours to rise into management ranks. Increasingly, Obama’s binge of executive orders and unilateral decrees to bypass Congress is coming to resemble a toddler’s destructive tantrum.
In an ideal world, governments would recognize the benefits of trade liberalization, and eliminate domestic tariffs on their own. In the real world, though, much of the tariff reduction process comes through international agreements between countries, which go something like this: We will agree to lower our tariffs if you agree to lower yours. Most people recognize that this is a silly way to do things, but in the end it leads to lower tariffs and it’s the only way to do so within existing political constraints, so we go along with it.
But it can be really painful to watch in action. Here’s an article in the FT about the U.S.-EU trade talks:
The US has accused the EU of abandoning a pledge to remove all tariffs applied to goods traded across the Atlantic, in the first substantive row to hit landmark trade negotiations between the two economies.
The EU and US last year launched a push to reach a Trans-Atlantic Trade and Investment Partnership billed as the world’s largest regional trade negotiation covering economies comprising almost half of the global economy.
Much of the focus of the discussions has been on bringing regulations in line to encourage more trade and on reducing other non-tariff barriers. But both sides had also pledged to seek to remove all tariffs on transatlantic trade, and in a sign of the difficult discussions to come the US has accused the EU of backing away from that goal.
In discussions this week in Brussels, EU officials have told their US counterparts that they plan to allow US beef, chicken and pork into the EU only under a quota system. The move amounts to a stick in the eye of US negotiators who face powerful agricultural lobbies at home and a Congress that is appearing ever more sceptical about the value of trade agreements.
It also follows a concerted effort by Karel De Gucht, the EU trade commissioner, to label the US’s original tariff offers tabled last month as less ambitious than the EU’s. The EU’s original offer would eliminate tariffs on 96 per cent of goods traded across the Atlantic while the US offer promised to wipe out tariffs on 88 per cent of goods.
US officials insist they plan to negotiate their offer upward and remain committed to the goal of eliminating all tariffs. However, EU officials, they say, have told their US counterparts that they will not eliminate tariffs on beef, chicken or pork and instead subject them to a sliding system of tariff-rate quotas.
At the end of all this, my hope is that most U.S. and EU tariffs will be eliminated. But watching everyone haggle about it, and demonstrate so much reluctance to do what is clearly in their interest, is not much fun.
There’s been a lot of confusion over what constitutes “accountability” in education lately. In response, representatives of the Cato Institute, Heritage Foundation, Friedman Foundation, Heartland Institute, and the Center for Education Reform have issued a joint open letter explaining why the best form of accountability is directly to parents.
To some, accountability means government-imposed standards and testing, like the Common Core State Standards, which advocates believe will ensure that every child receives at least a minimally acceptable education. Although well-intentioned, their faith is misplaced and their prescription is inimical to the most promising development in American education: parental choice.
True accountability comes not from top-down regulations but from parents financially empowered to exit schools that fail to meet their child’s needs. Parental choice, coupled with freedom for educators, creates the incentives and opportunities that spur quality. The compelled conformity fostered by centralized standards and tests stifles the very diversity that gives consumer choice its value.
This confusion about accountability is not limited just to tests. It even extends to personnel management. An example of this confusion comes to us today from a Republican legislator in Tennesee:
Rep. David Alexander, R-Winchester, a voucher critic, has filed an amendment that would tweak Gov. Bill Haslam’s voucher bill by requiring private schools that take public scholarship dollars to use the controversial Tennessee Evaluator Acceleration Model [TEAM] to grade its teachers.
The reason government schools need such heavy-handed evaluation systems is because tenure and union contracts make it nearly impossible to fire a teacher. According to the National Center for Education Statistics’ “School and Staffing Survey,” during the 2010-11 school year, only 1.9 percent of Tennessee teachers were dismissed or did not have their contracts renewed due to poor performance, up from 1.1 percent in 2007-08.
By contrast, private schools have greater flexibility than government schools over hiring, firing, and evaluating teachers. They’re also held directly accountable to parents, so there is market pressure not to retain teachers who perform poorly.
Moreover, the legislator’s argument that the government should force its evaluation system on private entities because they are accepting students who are publicly subsidized is patently absurd. It’s like arguing that all employees at grocery stores that accept food stamps or hospitals that accept Medicaid must be evaluated according to the same metrics as DMV employees.
State and local governments have the prerogative to devise whatever accountability measures they deem necessary to operate their schools and manage their employees. Private schools should continue to enjoy the freedom to set their own goals and to determine how best to measure their own performance and we should empower parents to choose the school that best meets their children’s needs.
Andrew J. Coulson
Over the years, countless reporters and even policy analysts have attempted to draw conclusions from changes in state SAT scores over time. That’s a mistake. Fluctuations in the SAT participation rate (the percentage of students actually taking the test), and in other state and student factors, are known to affect the scores.
But what if we could control for those confounding factors? As it happens, a pair of very sharp education statisticians (Mark Dynarski and Philip Gleason) revealed a way of doing just this—and of validating their results—back in 1993. In a new technical paper I’ve released this week, I extend and improve on their methods and apply them to a much larger range of years. The result is a set of adjusted SAT scores for every state reaching back to 1972. Vetted against scores from NAEP tests that are representative of the entire student populations of each state (but that only reach back to the 1990s), these adjusted SAT scores offer reasonable estimates of actual changes in states’ average level of SAT performance.
The paper linked above reveals only the methods by which these adjusted SAT scores can be computed, but next week Cato will publish a new policy paper and Web page presenting 100 charts—two for each state—illustraing the results. How has your state’s academic performance changed over the past two generations? Stay tuned to find out…
Daniel J. Mitchell
When I first started working on fiscal policy in the 1980s, I never thought I would consider Sweden any sort of role model.
It was the quintessential cradle-to-grave welfare state, much loved on the left as an example for America to follow.
But Sweden suffered a severe economic shock in the early 1990s and policy makers were forced to rethink big government.
I’m particularly impressed that Swedish leaders imposed some genuine fiscal restraint.
From a libertarian perspective, that’s obviously not very impressive, particularly since the public sector was consuming about two-thirds of economic output at the start of the period.
But by the standards of European politicians, 1.9 percent annual growth was relatively frugal.
And since Mitchell’s Golden Rule merely requires that government grow slower than the private sector, Sweden did make progress.
Real progress. It turns out that a little bit of spending discipline can pay big dividends if it can be sustained for a few years.
This second chart shows that the overall burden of the public sector (left axis) fell dramatically, dropping from more than 67 percent of GDP to 52 percent of economic output.
By the way, the biggest amount of progress occurred between 1994 and 1998, when spending grew by just 0.27 percent per year. That’s almost as good as what Germany achieved over a four-year period last decade.
It’s also worth noting that Sweden hasn’t fallen off the wagon. Spending has been growing a bit faster in recent years, but not as fast as overall economic output. So the burden of spending is now down to about 48 percent of GDP.
And for those who mistakenly focus on the symptom of red ink rather than the underlying disease of too much spending, you’ll be happy to know that spending discipline in the 1990s turned a big budget deficit (right axis) into a budget surplus.
Now let’s get the other side of the story. While Sweden has moved in the right direction, it’s still far from a libertarian paradise. The government still consumes nearly half of the country’s economic output and tax rates on entrepreneurs and investors max out at more than 50 percent.
But here are the two most compelling pieces of evidence about unresolved flaws in the Swedish system.
First, the system is so geared toward “equality” that a cook at one Swedish school was told to reduce the quality of the food she prepared because other schools had less capable cooks.
Second, if you’re still undecided about whether Sweden’s large-size welfare state is preferable to America’s medium-size welfare state, just keep in mind that Americans of Swedish descent earn 53 percent more than native Swedes.
In other words, Sweden might be a role model on the direction of change, but not on the level of government.
New NWF Report “Mascot Madness: How Climate Change Is Hurting School Spirit”—They’re Kidding, Right?
Paul C. "Chip" Knappenberger
The latest from the National Wildlife Federation has to rank among the most absurd global warming reports I have encountered. And, after 30 years of encountering all sorts of wacky warming hype, this is saying a lot.
This NWF doozey is entitled “Mascot Madness: How Climate Change is Hurting School Spirit” and was timed so as to try to take advantage of the pre-coverage of the upcoming March Madness—the popular annual NCAA college basketball tournament. Apparently linking climate change to negative impacts on sports is a new green tactic.
The NWF’s premise is that human-caused global warming is threatening the natural version of school mascots, and, in some cases, causing them to be dissociated from the region that includes the university that they represent, presumably dampening “school spirit.”
The NWF offered up its solution to this vexing problem:
• Passing effective laws that reduce carbon pollution and other air pollutants that drive climate change and endanger the health of our communities and wildlife.
• Investing in clean, wildlife-friendly, renewable energy sources to replace our dangerous dependence on dirty fossil fuels.
• Practicing “climate-smart conservation” by taking climate change into account in our wildlife and natural resource management efforts.
Even if it were true that anthropogenic climate change could be scientifically linked to changes in the location and/or health of the various school mascot species—which it almost certainly can’t—how this impacts “school spirit” is completely beyond me.
If the real-world situation that the mascots find themselves in is reflected in school spirit, can you imagine the level of dejection in the fan base of say the San Diego State Aztecs, the University of Southern California Trojans, the University of Calgary Dinos, or the Indiana University-Purdue University Fort Wayne Mastodons? It is a wonder that a single seat is filled for home games.
And as to the relationship between the natural territory of the mascot and the degree of rah-rahness, consider what must be the struggle facing the booster clubs behind the UC Irvine Anteaters, the Pittsburg (Kansas) State Gorillas, the Youngstown State Penguins, or the University of Missouri-Kansas City Kangaroos. Global warming’s impact is small beans compared to this kind of territorial displacement!
The NWF draws special attention to the worrisome case of the rivalry between the University of Michigan Wolverines and the Ohio State Buckeyes, fretting that climate change is driving the wolverine out of the state of Michigan while simultaneously driving the buckeye tree into Michigan (and out of Ohio).
But, according to this webpage from the University of Michigan athletic association, how the University’s mascot became the Wolverines is a matter of some debate. Interestingly, the page goes on to note that an actual wolverine has never been captured in the state of Michigan, and the first verified sighting of one didn’t occur until 2004!
And a quick peak at the USDA Plant Guide indicates that distribution of the Ohio buckeye tree shows that while the tree may extend is natural boundary northward in a warming climate, there is still plenty of territory south of Ohio to keep the tree in the state for a long time to come. So, everyone (including the NWF) can rest assured that climate change will not serve to lessen the Michigan/Ohio state rivalry.
In keeping with the ringing the global warming alarm bells, I am a bit surprised that the NWF didn’t compile a companion report titled “Mascot Madness: How Climate Change is Boosting School Spirit to Unhealthy Levels.” In that report, they could have featured the Miami Hurricanes, the University of British Columbia-Okanagan Heat, the Geneva College Golden Tornadoes, the Southeastern Oklahoma Savage Storm, and, of course, the most obvious of all, the Dartmouth College Big Greens.
The American Public Transportation Association (APTA) argues that a 0.7 percent increase in annual transit ridership in 2013 is proof that Americans want more “investments” in transit–by which the group means more federal funding. However, a close look at the actual data reveals something entirely different.
It turns out that all of the increase in transit ridership took place in New York City. New York City subway and bus ridership grew by 120 million trips in 2013; nationally, transit ridership grew by just 115 million trips. Add in New York commuter trains (Long Island Railroad and Metro North) and New York City transit ridership grew by 123 million trips, which means transit in the rest of the nation declined by 8 million trips. As the New York Times observes, the growth in New York City transit ridership resulted from “falling unemployment,” not major capital improvements.
Meanwhile, light-rail and bus ridership both declined in Portland, which is often considered the model for new transit investments. Light-rail ridership grew in Dallas by about 300,000 trips, but bus ridership declined by 1.7 million trips. Charlotte light rail gained 27,000 new rides in 2013, but Charlotte buses lost 476,000 rides. Declines in bus ridership offset part or all of the gains in rail ridership in Chicago, Denver, Salt Lake City, and other cities. Rail ridership declined in Albuquerque, Baltimore, Minneapolis, Sacramento, and on the San Francisco BART system, among other places.APTA wants people to believe that transit is an increasingly important form of transportation. In fact, it is increasingly irrelevant. Although urban driving experienced a downward blip after the 2008 crash, it is now rising again, while transit outside of New York City is declining. Source: Urban driving data from Federal Highway Administration, urban population from the Census Bureau, and transit numbers from APTA. Transit PM = transit passenger miles.
Rail and bus ridership have grown in Seattle and a few other cities, but the point is that construction of expensive transit projects with federal funds is not guaranteed to boost transit ridership. In many cases, overall transit ridership declines because the high costs of running the rail systems forces transit agencies to cut bus service.
APTA wants more federal funding because many of its associate members are rail contractors who depend on federal grants to build obsolete transit systems. Light-rail lines being planned or built today cost an average of more than $100 million per mile, while some cities have built new four-lane freeways for $10 million to $20 million per mile, and each of those freeway lanes will move far more people per day than a light-rail line.
Congress will be reconsidering federal funding for highways and transit this year, and APTA wants as much money as possible diverted to transit. President Obama has proposed a 250 percent increase in deficit spending on transportation, most of which would go to transit.
Transit only carries about 1 percent of urban travel, yet it already receives more than 20 percent of federal surface transportation dollars. Since most of those federal dollars come out of gas taxes, auto drivers are being forced to subsidize rail contractors, often to the detriment of low-income transit riders whose bus services are cut in order to pay for rail lines into high-income neighborhoods.
The real problem with our transportation system is not a shortage of funds, but too much money being spent in the wrong places. New York City transit was the only major transit system in the country that covered more than half its operating costs out of fares in 2012; the average elsewhere was less than 30 percent. Funding transportation out of user fees, such as mileage-based user fees and transit fares, would give transportation agencies incentives to spend the money where it is needed by transport users, not where it will create the most pork for politicians.
Andrew J. Coulson
The College Board announced this week that it is dropping the more arcane words and more advanced mathematics from its SAT test, among other changes. This, however noble its intentions, seems counterproductive and institutionally suicidal.
The purpose of the SAT is to help predict success in college. It does this in the same way as every other test: by distinguishing between those who know the tested content and those who do not. Not surprisingly, most modern tests are designed using something called “Item Discrimination Analysis.” That unfortunately-named technique has nothing to do with racism or classism. It is simply a mathematical formula. What it does is measure, for every question, the difference between the percentage of high-performers who got the question right and the percentage of low-performers who got it right. In general, the higher this “Discrimination Index” (DI) rises, the more useful the question is and therefore the more likely it is to be retained.
The problem with the College Board’s announced revisions is that they seem likely to eliminate questions with high DI values in favor of others with lower DI values. You might guess that reducing the SAT’s ability to distinguish between high and low performers would inhibit its ability to predict college success. But you don’t have to guess, because there’s already at least one recent study that looked at this question. What the authors found is that the DI value of SAT mathematics questions is usually the strongest contributor to the test’s ability to predict college success—by a wide margin.
There’s a good chance that the College Board is aware of this study since two of its three authors work for the College Board and the Board hosts a presentation about the study on its own website.
The Board’s changes are intended to make the SAT more fair. In practice, they seem likely to make it less useful. And as its usefulness diminishes, so will the number of colleges using it. If this proves to be the case—and we’ll know for sure in just a few years—the College Board will have succeeded in doing something that its critics have been unable to accomplish despite decades of effort: killing the SAT.
This Thursday at Cato, we’re hosting an event for a remarkable new book: Betty Medsger’s The Burglary: The Discovery of J. Edgar Hoover’s Secret FBI (RSVP here). As I explain in the Washington Examiner today, it’s a story as riveting as any heist film, and far more significant:
Forty-three years ago last Saturday, an unlikely band of antiwar activists calling themselves “The Citizens Commission to Investigate the FBI” broke into a Bureau branch office in Media, Pennsylvania, making off with reams of classified documents. Despite a manhunt involving 200 agents at its peak, the burglars were never caught, but the files they mailed to selected journalists proved that the agency was waging a secret, unconstitutional war against American citizens.
As a young Washington Post reporter, Medsger was the first to receive and publish selections from the files—over the protests of then-attorney general (and later Watergate felon) John Mitchell, who called the Post three times falsely claiming that publication would jeopardize national security and threaten agents’ lives.
Four decades later, those claims echo in former NSA head Michael Hayden’s assertion that the US is “infinitely weaker” because of Snowden’s leaks. Like the apocryphal old saw suggests, if history doesn’t repeat itself, at least it rhymes.
“As if arranged by the gods of irony,” Medsger writes, the very morning Hoover learned of the break-in, then-assistant attorney general William H. Rehnquist (later Chief Justice), in testimony the FBI had helped prepare, told a Senate subcommittee that what little surveillance the government engaged in did not have a “chilling effect” on constitutional rights. Among the first documents Medsger reported weeks later, was a memo urging agents to “enhance the paranoia… get the point across there is an FBI agent behind every mailbox.”
Ironies abound. The burglars timed the heist for March 8, 1971, when the country would be distracted by the “Fight of the Century” between Muhammad Ali and Joe Frazier. Medsger notes the “poetic justice” that the much-spied upon Ali would unwittingly help provide cover for exposure of FBI spying. Oddly, it’s acting attorney general Robert Bork–survivor of the “Saturday Night Massacre” and nobody’s idea of a civil libertarian)–who orders the release of key documents on the COINTELPRO program and urged the incoming attorney general to investigate the program. There’s another vignette where President Nixon speaks to an FBI Academy graduating class about “reestablishing respect for the law”–and the next evening orders Haldeman to have someone break into the Brookings Institution and steal a purloined copy of the Pentagon Papers (a zealous Chuck Colson suggested firebombing the think tank to create a distraction).
The book is full of “truth is stranger” moments: if a historical novelist made up a scenario where, two days before the burglary, the ringleader, Haverford physics professor William Davidon, goes to the White House for a sit-down with Henry Kissinger to argue about the Vietnam War (thanks, ultimately, to an introduction made by Shirley MacLaine), there’s no way I’d have bought it. Stranger still, at the time, Davidon was an unindicted co-conspirator in a bogus kidnapping case engineered by Hoover in which Catholic peace activists had supposedly plotted to hold Kissinger hostage. Kissinger didn’t take it very seriously, having joked to the press that the plot had been engineered by “three sex-starved nuns.” As the meeting began, Medsger reports, “Kissinger immediately turned to Sister Beverly, sitting on his other side, and apologized for his flippant ‘sex-starved nuns’ comment.”
Last week, an indignant Rep. Mike Pompeo (R.-KA) chastised the organizers of Austin’s South by Southwest conference for inviting Edward Snowden to address the group via video feed: Snowden is “a traitor and a common criminal,” he railed, “whose only apparent qualification is a willingness to steal from his own government.” As I’ve said before, the debate over the content of Snowden’s character is a sideshow: what’s important is what he revealed: secret, unlawful surveillance capabilities that J. Edgar Hoover could hardly have imagined 40+ years ago. Unless we’ve made radical improvements in human nature in the interim, those capabilities–and the temptations they represent–should concern us greatly.
The legacy of the Citizens’ Commission shows that their “willingness to steal from their own government” may have been the only way to stop much greater lawlessness. Here’s what the FBI’s own website says about the burglars:
A radical group called “Citizens’ Committee to Investigate the FBI” broke into the office in Media and stole a wide array of domestic security documents that had not been properly secured. Some of the documents mentioned “Cointelpro”, or Counterintelligence Programs—a series of programs aimed to disrupt some of the more radical groups of the 1950s and 1960s. The leaking of those documents to the news media and politicians and the subsequent criticism, both inside and outside the Bureau, led to a significant reevaluation of FBI domestic security policy.
Medsger quotes Neil Welch, one of the few top agents within the Bureau to oppose COINTELPRO at the time:
“If [the burglars] had been convicted, I would have recommended that they should be given suspended sentences because of the major contribution they made to their country.”
Ted Galen Carpenter
With the Ukrainian crisis continuing to simmer, criticism of the Obama administration’s response is growing. One common refrain is that the administration has squandered its leadership role, not only in Europe, but globally. Calls are mounting for the United States to inspire and cajole its NATO allies to support a hard-line policy toward Russia. Representative Peter King (R-NY), speaking on NBC’s Meet the Press, stated that Washington needs to make clear not only that “there will be firm sanctions,” but we “have to make sure the allies are working together.”
Such calls reflect wishful thinking rather than sober analysis. Although the European countries (especially those in Eastern Europe) are nervous and unhappy about the Kremlin’s decision to send troops into Ukraine’s Crimea region, the principal European powers (Germany, Italy, France and Britain) show few signs of wanting a confrontation with Moscow. Indeed, their criticisms of Putin’s military intervention have been slower to materialize and remain milder than those expressed by U.S. officials. That is not coincidental. The United States has scant economic ties with Russia; barely two percent of America’s foreign trade is with that country, and U.S. investment there is similarly modest. Imposing sanctions and risking Moscow’s retaliation would have little impact on America’s fortunes.
But Washington’s European allies have far more substantial—and vulnerable—ties. Germany, for example, gets nearly 40 percent of its natural gas supplies from Russia, and that country is also a significant arena for German investment. Unsurprisingly, Chancellor Angela Merkel has been relatively circumspect in her criticism of the Kremlin’s conduct in the Ukraine crisis. She is unlikely to accord calls for NATO solidarity greater importance than the need to keep German homes warm and business operating in the cold winter months.
Washington’s leadership clout within NATO has long been exaggerated. As I note in a recent article over at National Interest Online, U.S. officials have never been able even to get the European allies to spend credible amounts on their own defenses. Burden-sharing complaints go back to the earliest months of the alliance in 1949, and have surfaced repeatedly since then. In 2006, George W. Bush’s administration extracted a promise that all members would spend at least two percent of their gross domestic product on the military. (That was a very modest target; the United States spends nearly 4 ½ percent.) Today, the vast majority of members, including such leading countries as Germany, Italy and Spain, fail to fulfill their commitment. Even Britain and France have fallen perilously close to that spending floor.
Shortly before the onset of the Ukraine crisis, Secretary of Defense Chuck Hagel admonished his NATO colleagues that the current downward spiral in European defense budgets “is not sustainable.” Rebalancing NATO’s “burden-sharing and capabilities,” he stressed “is mandatory, not elective.” But his call for a more serious effort on the part of the European allies will probably fare no better than previous ones. Even Russia’s jarring actions in Ukraine are unlikely to dislodge the NATO countries from their fondness for free-riding on the security exertions of the United States. The Baltic republics and other nations directly on Russia’s border have made some comments about the need to increase their military spending, but only time will tell whether they turn out to be more than yet another episode of empty talk. And the major Western European powers show few signs of altering their policies or budgets.
Indeed, even the vulnerable Eastern European countries are spending more energy trying to get the United States to enhance its military commitment to the region than they are on boosting their own defenses. Lithuanian President Dalia Grybauskaite, for example, warns that “Russia is a threat to the whole of Europe, and Europe must understand what it is dealing with.” However, just a few years ago, she led efforts to cut Lithuania’s already meager defense budget. Today, the country spends barely 0.8 percent of GDP on defense.
Invocations of U.S. leadership cannot get alliance partners to adopt measures they do not wish to pay for or assume risks that they want to avoid. Anyone believing that the United States will lead a grand alliance parade to counter Russian aggression in Ukraine will soon find that this country is marching alone.
One of my favorite Adam Smith passages is:
The man of system … seems to imagine that he can arrange the different members of a great society with as much ease as the hand arranges the different pieces upon a chess-board. He does not consider that the pieces upon the chess-board have no other principle of motion besides that which the hand impresses upon them; but that, in the great chess-board of human society, every single piece has a principle of motion of its own, altogether different from that which the legislature might chuse to impress upon it.
Today, the men and women of system in the nation’s capital have a high regard for their ability to arrange the chess pieces of American society. There are 318 million individuals, 28 million businesses, 50 state governments, 89,000 local governments, and countless churches, charities, and other organizations in this great nation. Congress passes laws to intervene in the affairs of all of these people and groups, trying to impress its design.
But federal policymakers usually ignore, or fail to understand, the principles of motion in society. They impose minimum wages and health laws, and businesses cut hiring. They subsidize water, which exacerbates droughts. They subsidize flood insurance, which increases the damage from floods. They impose the world’s highest corporate tax rate, and they are shocked when corporations shift their profits abroad.
Federal attempts to arrange state government policies bring surprises as well. Federal policymakers offer matching grants for Medicaid, and are surprised that it prompts rapid state spending growth and dubious schemes to boost payments. Federal policymakers provide state aid for schools, but states probably just substitute added federal funding for their own.
The latest lesson on society’s principles of motion regards food stamp aid. From the Washington Post:
Congress last month passed a revamp of agriculture and food policy that was supposed to save the U.S. government $8.6 billion in food-stamp costs over a decade. That may not happen, though, now that some states are finding a way to avoid the cuts.
New York, Connecticut and Pennsylvania are triggering extra nutrition spending by adding money to a home-heating subsidy tied to increased food-stamp aid. The move feeds needy families while thwarting spending-reduction goals … If more follow, the federal government would have to spend much of the $8.6 billion it planned to save, as states reduce spending on other programs to meet the new mandate.
“These federal cuts have made it harder for our state’s most vulnerable residents to put food on the table. The state has intervened on behalf of these low-income New Yorkers,” Gov. Andrew M. Cuomo (D) said in a statement Feb 25. “New York is stepping up to help families in need.”
Had the U.S. been so foolish as to bring Ukraine into NATO, Washington would have a treaty responsibility to start World War III. Today’s game of geopolitical chicken might have a nuclear end.
Still, the West cannot easily ignore Russia’s Crimean takeover. It was an act of aggression against Kiev, yet a majority of Crimean residents may welcome the move. Although secessionist sentiment has been largely dormant of late, the Western-supported putsch/street revolution against President Viktor Yanukovich inflamed pro-Russian passions in eastern Ukraine.
Of course, Moscow intervened for its own ends. And Putin is wrong, dangerously wrong, to use force. But how to punish Moscow? America’s direct stake in the controversy is essentially nil.
Putin is a garden-variety authoritarian, not another Adolf Hitler. The former’s ambitions are focused on border security and international respect, not global conquest and ideological domination. Moreover, Russia—with a weak economy dependent on energy revenues and badly managed military in desperate need of reform—is no Nazi Germany.
Since whatever happens between Russia and Ukraine poses little threat to Americans, military retaliation is inconceivable. Yet the administration added fighter patrols in Europe and others have proposed sending the Sixth Fleet into the Black Sea. However, absent plans to strafe Russian villages and seize Sevastopol, what’s the point?
Former White House aides Stephen J. Hadley and Damon Wilson advocated “deploying and exercising NATO forces in Poland, the Baltic states, and Romania.” That would only reinforce Moscow’s determination to prevent Ukraine from becoming a similar advance base for the U.S. military.
John Bolton suggested putting “both Georgia and Ukraine on a clear path to NATO membership.” Yet alliances are supposed to increase America’s security, not increase the likelihood of confrontation and war.
The Europeans don’t have much of a military option because they don’t have much of a military. Despite constant exhortations from Washington to do more, almost all European states are cutting back.
Which leaves economic and diplomatic sanctions for both America and Europe. Alas, many measures, such as individual visa bans, would have but minimal impact on Moscow.
More serious would be sanctioning Russian banks, restricting energy sales, and embargoing trade. However, enthusiasm in Europe for acting drops the farther one moves from Russia.
Moscow also could retaliate by freezing the assets of Western businesses. Moreover, Russia could damage significant allied interests elsewhere, impeding logistical support for Afghanistan and buttressing Iran in negotiations over its nuclear program, for instance.
As I point out in my latest article on Forbes online: “The best answer for the Crimean crisis is a negotiated climb-down, where Russia pulls back its forces, Kiev addresses those disenfranchised by Yanukovich’s ouster, Crimea delays its referendum, Ukraine accepts a secession vote, Europe respects the result, Washington stops meddling in Kiev’s politics, and everyone disavows any intention of bringing Ukraine into NATO.”
If Moscow forges ahead anyway, the allies should play a long game—employ limited economic sanctions against business elites and sustained diplomatic pressure against political elites, while avoiding a new cold war. However, the U.S. should act only in cooperation with Europe, since there is no gain to unilaterally penalizing American business.
Finally, over the longer-term, Washington should force Europe to take over responsibility for its own defense. In early March the administration undertook what Secretary of State John Kerry termed “concrete steps to reassure our NATO allies.” Actually, Washington should adopt the opposite strategy. America’s friends should understand that if they are not willing to defend themselves, no one else will do so.
At the same time, Washington should rethink nonproliferation policy. It’s too late for Ukraine, but Kiev gave up Soviet nuclear weapons left on its soil in return for paper border guarantees. Possession of even a handful of nuclear-tipped missiles would have changed Moscow’s risk calculations.
Whatever the resolution of the immediate crisis, the Obama administration should use Russia’s Crimean gambit to end Europe’s dependent military relationship. That would offer at least one silver lining to yet another potential conflict without end.
One of the main claims of E-Verify’ ssupporters is that it will turn off the job magnet that incentivizes unauthorized immigration. A recent Working Paper by economists Pia M. Orrenius and Madeline Zavodny casts doubt on that.
They find that E-Verify mandates in the states have decreased wages by likely Mexican unauthorized immigrant men by about 7.8 percent and unauthorized immigrant Mexican women by 1.2 percent. The likelihood of men being employed is not much affected by E-Verify but it does increase female employment and labor force participation – which makes sense in the context of making migration and employment decisions on the family level. Clearly, E-Verify has diminished the anticipated wage gains from illegally immigrating to the United States.
However, E-Verify has not turned off the job magnet. Assuming that unauthorized immigrant men and women earn the same wages, the estimated gains to coming here for the marginal Mexican immigrant is only slightly lowered. Based on gender data from Pew, assuming that Mexican immigrant wage and comparing identical workers in Mexico and the United States, here are some back of the envelope calculations showing how E-Verify has affected wages for unauthorized Mexican immigrants:
Unauthorized Immigrant Workers
100.0%Monthly Wages in U.S. (Pre-E-Verify)
$ 1,470.80Monthly Wages in Mexico
$ 580.90Wages Multiple from Working in U.S.
2.53Monthly Wages (Post E-Verify)
$1,394.32Wages Multiple from Working in U.S. Under E-Verify
Sources: Center for Global Development, Pew Hispanic Center, and Dallas Fed Working Paper
E-Verify lowers the wage gain for all Mexican unauthorized workers from 2.53 times as great as in Mexico to 2.4 times as great – a whopping 5 percent decrease. That’s not much to brag about considering E-Verify is supposed to be the lynchpin of future immigration enforcement. It’s hard to see how E-Verify proponents can look at this small wage effect and conclude that E-Verify is worth it, given the enormous array of problems and burdens caused by it. In practice, E-Verify does not turn off the job magnet that attracts unauthorized immigrants to our shores and will not if it is ever mandated.
Some marijuana legalizers push the argument that legalization will generate additional tax revenue. Opinions differ widely, however, on exactly how much revenue.
In mid-February, Colorado Governor John Hickenlooper predicted that the taxes, licenses, and fees on medical-plus-recreational marijuana would generate $134 million for the fiscal year starting in July.
In my 2010 Cato White Paper, I predicted that full legalization (federal and state) would generate roughly $55-60 million per year for Colorado.
Now just released data from Colorado for January, the first month of fully legal marijuana sales, show about $2 million from recreational marijuana and about $3.5 million for medical-plus-recreational marijuana. The latter figure implies annual revenues of about $42 million.
This January figure may turn out to be misleading. On one hand, the industry could grow over time, boosting revenues. On the other hand, initial hoopla over legalization may have inflated January sales. And, longer term, sales in Colorado could decline if other states legalize or medicalize.
If the lower revenue numbers persist, does that weaken the case for legalization?
No: Increased tax revenue was never the main reason for legalization. Instead, the crucial goals of legalization are greater freedom for marijuana users and elimination of prohibition’s unintended consequences (crime, corruption, poor quality control, diminished civil liberties, restrictions on medical uses, and expenditure on enforcement).
Collecting revenue on legalized marijuana is perfectly sensible; it allows lower tax rates on everything else. But this appears to be a small effect, and it is not the main benefit of legalization in any case.
How much does a “free” school lunch cost?
In the last few years, First Lady Michelle Obama has worked with the U.S. Department of Agriculture to make school lunches healthier. In 2011, Neal McCluskey argued that, though well-intentioned, the changes would result in more wasted food, higher costs, and major implementation challenges. The General Accounting Office has now issued a report that confirms these concerns:
According to the GAO report, local and state authorities told researchers the new standards have resulted in more waste, higher food costs, challenges with menu planning and difficulties in sourcing products that meet the federal portion and calorie requirements.
When such decisions are made at the local level, schools can solicit and respond to feedback from parents and students. However, when the proverbial faceless bureaucrat in some distant Washington office decides, the rules tend to be uniform and inflexible, leading to all sorts of unintended consequences:
The federal government’s changes to school lunch menus have been disastrous, causing problems for cafeterias trying to comply with the rules and leaving the menu so expensive or unpalatable that more than 1 million students have stopped buying lunch, according to a government audit…
One school district told federal investigators that it had to add unhealthy pudding and potato chips to its menu to meet the government’s minimum calorie requirements. Other school districts removed peanut butter and jelly sandwiches from their elementary school menus.
Five of the eight school districts surveyed by the Government Accountability Office, the official watchdog for Congress, said they believed students were going hungry because of smaller entree portions demanded by the rules.
In other words, the so-called “Healthy, Hunger-Free Kids Act” actually resulted in some kids being served less healthy food while other kids went hungry.
Two-thirds of states reported on the GAO survey that implementation in 2012-13 was a “very great challenge” or an “extreme challenge.” The report noted that much of the difficulty was related to the sheer volume of regulations. In just 18 months, the USDA issued 1,800 pages of “guidance” for following the new rules. Moreover, the “guidance” was “provided too late in the 2012-2013 school year to be helpful” because schools “had already planned menus and trained food service staff” on what they thought the new rules required. However, some guidance memos “either substantively changed or contradicted aspects of previously issued memos.” When state officials contacted the USDA’s regional offices for guidance on understanding the “guidance,” the USDA staff were “sometimes unable to answer state questions on the guidance.”
Let’s hope this serves as a cautionary tale for those who want the federal government to play a larger role in education policy in general.
Last month, Cato filed a brief in the D.C. Circuit case of Halbig v. Sebelius, supporting a challenge to the IRS’s unilateral and unauthorized decision to extend tax credits to individuals who purchased health insurance from exchanges that were not established by their state. Now we’re continuing out advocacy in this area by filing a brief, joined by the Pacific Research Institute and the American Civil Rights Union, supporting the challengers in a similar Fourth Circuit case.
Here’s the background: To encourage the purchase of health insurance, the Affordable Care Act added a number of deductions, exemptions, and penalties to the federal tax code. As might be expected from a 2,700 page law, these new tax rules have the potential to interact in unforeseen and counter-intuitive ways. As first discovered by Michael Cannon and Jonathan Adler, one of these new tax provisions, when combined with state decision-making and IRS rule-making, has given Obamacare yet another legal problem. The legislation’s Section 1311 provides a generous tax credit for anyone who buys insurance from an insurance exchange “established by the State”—as an incentive for states to create the exchanges—but only 16 states have opted to do so. In the other states, the federal government established its own exchanges, as another section of the ACA specifies. But where § 1311 only explicitly authorized a tax credit for people who buy insurance from a state exchange, the IRS issued a rule interpreting § 1311 as also applying to purchases from federal exchanges. This creative interpretation hurts individuals like David King, a 63-year-old resident of Virginia.
Because buying insurance would cost King more than 8% of his income, he should be immune from Obamacare’s tax on the decision not to buy insurance (the “tax” that you’ll recall Chief Justice Roberts devised in his NFIB v. Sebelius opinion). After the IRS expanded § 1311 to subsidize people in states with federal exchanges (like Virginia), however, King could have bought health insurance for an amount low enough to again subject him to the Roberts tax. King argues that he faces these costs only because the IRS exceeded the scope of its powers.
In our latest brief, we argue that the IRS’s decision wasn’t just unauthorized, it was a blatant invasion of the powers exclusively awarded to Congress in Article I of the Constitution. This error was compounded by the district court’s holding that the IRS actions were lawful because, even if Obamacare explicitly restricts the availability of tax credits to states which set up their own exchanges, the expansion of tax-credit availability serves the law’s general purpose of making healthcare more affordable. By elevating its own perception of congressional purpose over the statutory text, the district court ignored the cardinal principle that legislative intent must be effected by the words Congress uses, not the words it may have meant or should have chosen to use.
In other words, if Congress wants to extend the tax credit, it can do so by passing new legislation. The only reason for executive-branch officials not to go back to Congress for clarification, and instead legislate by fiat, is to bypass the democratic process, thereby undermining constitutional separation of powers. This case ultimately isn’t about money, the wisdom of individual health care decision-making, or even political opposition to Obamacare. It’s about who gets to create the laws we live by: the democratically elected members of Congress, or the bureaucrats charged with no more than executing the laws that Congress passes and the president signs.
The U.S. Court of Appeals for the Fourth Circuit (based in Richmond) will hear argument in King v. Sebelius in May.
The Supreme Court is gradually coming to terms with the effect information technology is having on the Fourth Amendment. In 2001, the Kyllo court curtailed the use of high-tech devices for searching homes. In its early 2012 decision in United States v. Jones, a unanimous Court agreed that government agents can’t attach a GPS device to a vehicle and track it for four weeks without a warrant.
But the Court was divided as to rationale. The majority opinion in Jones found (consistent with Cato’s brief) that attaching the device to the car was at the heart of the Fourth Amendment violation. Four concurring members of the Court felt that the government’s tracking violated a “reasonable expectation of privacy.”
What is the right way to decide these cases? Fourth Amendment law is at a crossroads.
The next round of development in Fourth Amendment law may come in a pair of cases being argued in April. They ask whether government agents are entitled to search the cell phone of someone they’ve arrested merely because the phone has been properly seized. Riley v. California and Wurie v. United States have slightly different fact patterns, which should allow the fullest exposition of the issues.
Cato’s brief in Riley, filed this week, again seeks to guide the Court toward using time-tested principles in Fourth Amendment cases. Rather than vague pronouncements about privacy and people’s expectations around it, we invite the Court to apply the Fourth Amendment as a law.
“Courts should examine whether there was a seizure or search,” the brief concludes, “and whether any such seizure or search was of persons, papers, houses, and effects. If those conditions are met, courts should examine whether the warrantless seizures and searches were reasonable.”
The brief argues that the Court should carefully examine the many distinct seizures and searches that occur in the typical law enforcement stop. Crucially, the Court should recognize that the search of a phone is a distinct, additional step from the seizure of the phone that occurs when all items are taken off a suspect for the purposes of officer safety. Looking through the phone’s contents requires its own legal justification, and typically, given the massive amounts of personal and private information on a cell phone, that search for additional evidence will require a warrant.
Cato’s brief invites the Court to openly discuss a premise that the government and the petitioner share: that a cell phone is an “effect” for purposes of Fourth Amendment analysis. No court we found has yet held this. And the contents of phones are distinct “papers and effects,” which serve the same human ends that papers, postal mail, books, drawings, and portraits did in the founding era.
In Jones, both the majority and the concurring opinion quoted Kyllo in agreeing that the Court should “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” The Cato Institute’s brief in Riley shows them how to do that.
Cato’s brief does not cite Katz v. United States, the 1967 case that produced the “reasonable expectation of privacy” test. With luck, the Katz test will not survive into its second half-century of weakening Americans’ constitutional protections for privacy from government.