Cato Op-Eds

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

Last week Secretary Carson’s Department of Housing and Urban Development (HUD) proposed changes to federal rental assistance programs. There were a variety of changes in the HUD proposal, but so far reactions have focused mainly on tenant rents. This narrow focus on a single element of the proposal doesn’t do the full proposal justice.

The three major changes are the ability to institute work requirements, the changes to tenant rents, and reductions in paperwork and monitoring. A few words on each, below.

1) Work Requirements

The proposal allows housing authorities to institute work requirements. Despite concerns from activist groups like the National Low-Income Housing Coalition (NLIHC), the proposal does not allow housing authorities to apply work requirements to the elderly, disabled, or minors.

According to the Center for Budget and Policy Priorities, 60 percent of households on public assistance are elderly or disabled. These households would be exempt. Of the remaining households, some are already working and so ostensibly they would not need to change their behavior.

In short, if all housing authorities adopted strong work requirements a minority of HUD households would be impacted, perhaps 13 - 18 percent. Work requirements are likely more of a symbolic change that expands the universe of what’s possible under government rental assistance than a provision that would dramatically change rental assistance.

2) Rent Changes

This change has drawn a lot of attention. The increase from 30 to 35% of income for rent is not ideal from a policy standpoint, because it reduces tenant incentives to earn additional dollars (or to report additional dollars if they are earned).

If rents need to be raised, the change from $50 to $150 for minimum rent is superior to the increase from 30 to 35% of income for rent. In fact, HUD would likely be better off moving all of their units to flat rate rents, similar to how minimum rents are structured.

HUD’s view is that rent changes must be made as a result of budgetary constraints. Indeed, changes in rent due to budget constraints are not unprecedented in HUD housing. In 1981, Congress increased rent from 25 to 30% of income for HUD rental assistance programs for this reason.

One important point: where the rent changes result in a financial hardship, tenants are exempt under the proposal. Examples of financial hardship include A) risk of being evicted, B) financial issues (like lose their job, a death in the family, a change in circumstances) C) tenants have lost eligibility for other welfare benefits, or are waiting to find out if they’re eligible for them, etc. Despite activists’ concerns the proposed reform would put people out on the street, it looks as though it’s designed not to.

3) Less Paperwork, Less Monitoring

There are a couple of changes related to reducing paperwork and bureaucracy in the program. The first is changing the rent calculation from adjusted income to gross income. Determining what counts as income for tenants is a very complicated process which leads tenants of similar economic circumstances to be treated differently. That’s a fairness issue, one among many in the provision of housing benefits. It’s nice to see an attempt to simplify and treat tenants similarly.

Finally, HUD rental assistance recipients currently have to recertify their income annually. The proposal changes the certification to be less frequent, from annually to once every three years. The idea is to give low-income tenants greater ability to grow their income while eliminating paperwork. Both libertarians and liberals should find this element of the proposal at least somewhat appealing.

In short, a fair analysis of the proposal requires greater nuance than what’s being offered.

Yesterday the New York Times reported that in early April Ukraine’s president, Petro Poroshenko, ordered his chief federal prosecutor to halt four anticorruption investigations involving Ukrainians connected to Paul Manafort, Donald Trump’s former campaign chairman and a central figure in Robert Mueller’s investigations here in the United States.

Perhaps not coincidentally, Ukraine announced on April 30 that it had received 210 Javelin antitank missiles, purchased from the United States to bolster its fight against Russian proxies in the Donbass region of Ukraine. Though the State Department initially approved the sale in December and Pentagon gave its blessing in March, Trump himself was reluctant to arm Ukraine given the potential effect on the U.S. relationship with Russia.

The burning question is whether anyone in the Trump administration suggested this course of action to Ukraine. Ukraine, of course, is free to pursue whatever policies it deems necessary to defend itself from encroachments by Russia. But to use arms sales to interfere with the Mueller investigation would represent obstruction of justice on a truly epic scale.

To be sure, Ukraine already had plenty of motivation to help the Trump administration. If Ukraine shuttered the investigations to curry Trump’s favor, it was only one of several efforts designed to garner American support. Concerned that Trump’s affection for Vladimir Putin would translate into anti-Ukraine policies, Ukraine has gone out of its way to butter up Trump since he took office. Ukraine has promised U.S. construction firms contracts for future infrastructure projects in Donbass, brokered a $80 million coal deal with the U.S., signed a $1 billion deal with GE Transportation for new locomotives, and hired former Republican National Committee chairman Haley Barbour to help Ukraine lobby the Trump administration.

But even if this has nothing to do with the Mueller investigation, the sale of Javelin missiles to Ukraine reflects both poor judgment on the part of the Trump administration and a longstanding neglect of the potential negative consequences of American arms sales.

Arming Ukraine makes little strategic sense. A couple hundred antitank missiles will not alter the military balance between Ukraine and Russia in Donbas in any meaningful way. Russia can quickly move additional forces and equipment to the region at will. The bigger danger is that arming Ukraine will in fact prompt Russia to do just that, thereby risking an intensification of the conflict and potentially leading to more casualties than the 10,000 already suffered. It is clear, in fact, that this is exactly how Russia sees things. In December after the State Department approved the sale, Russian Foreign Ministry spokesperson Maria Zakharova said, “The United States is, in fact, encouraging the resumption of large-scale bloodshed in Donbass, where the situation is already on the edge due to continuing shelling from the Kiev-controlled side…Washington, in fact, becomes an accomplice in the killing of people.”

Arming Ukraine also raises the political stakes and risks turning Ukraine into a test of the president’s foreign policy effectiveness, increasing the likelihood of the United States getting entangled more deeply in the conflict. It seems clear that encouraging greater U.S. involvement is a key element of Ukraine’s strategy. Major General Volodymyr Havrylov, Ukraine’s defense attaché to the U.S., told a reporter that the missiles were “a political symbol that allows others to understand that Ukrainian security is important to the U.S.” The risk of entanglement is not trivial given the presence of powerful advocates for doing more in the U.S. Congress. Senator Bob Corker, chairman of the Senate Foreign Relations Committee approved of the sale back in December, telling the press that “This decision was supported by Congress in legislation that became law three years ago and reflects our country’s longstanding commitment to Ukraine in the face of ongoing Russian aggression.”

More broadly, the dangers generated by U.S. arms sales go well beyond Ukraine. Ukraine is just one of many risky customers to whom the United States has sold advanced weapons over the past fifteen years. In pursuit of short-term foreign policy influence and economic gains, the United States has turned a blind eye to what happens after the deals are done. Among the list of questionable clients are countries like Saudi Arabia, which has used American weapons in its disastrous intervention in Yemen; Iraq, whose army managed to provide the Islamic State with three army divisions’ worth of American tanks, armored vehicles, and infantry weapons; and Nigeria, whose human rights record, internal conflicts, and overall state fragility call into serious question whether it will use its latest purchase of Super Tucano attack aircraft in a responsible manner.

Time will tell if the smoke surrounding the sale of Javelin missiles to Ukraine stems from collusion to obstruct the Mueller investigation or simply misguided foreign policy making. Either way, arming Ukraine reflects a reckless approach to the use of arms sales that the Trump administration seems all too eager to embrace.

I have previously laid out the case that the government has cheated legal immigrants for decades by erroneously counting the spouses and children of immigrants against the quotas for immigration, thereby reducing the total amount of immigration substantially. My argument relied primarily on the text of the law and not the legislative history. But I have recently come across evidence that proves that members of Congress believed that spouses and children wouldn’t count against the cap.

The Immigration Act of 1990 provided the basis for issuing green cards to spouses and children of legal immigrants in section 203 of the Immigration and Nationality Act (INA). Congress divided section 203 into subsections. Subsection (a) provides green cards for certain family-members of U.S. citizens and residents, subsection (b) for employment-based immigrants, and subsection (c) for diversity lottery winners. Each of these categories have a quota. Subsection (d) separately awards green cards to the spouses and minor children of the primary applicants under subsections (a) through (c).

This means that if an employee, for example, qualifies for a green card through employer sponsorship under subsection (b), their spouses and children qualify for green cards under subsection (d). Subsection (d) has no quota, while subsections (a) through (c) do have quotas, so the question is, do the spouses and children count under subsection (d) without a limit or under the other subsections with limits?

While no member of Congress directly addressed this question in 1990, they made comments that we can only interpret as indicating that they believed spouses and children would not count toward the quotas. In the same bill in 1990, Congress created the EB-5 Investor Program in subsection (b) of section 203. Under the law, up to 10,000 immigrants can receive green cards if they invest in a new commercial enterprise that creates at least 10 jobs. Thus, a minimum of 100,000 jobs would be created if all the green cards went to investors. However, if their families count against the green card limit, then fewer than 10,000 investors would receive green cards and fewer than 100,000 jobs would be created.

All members of Congress made the same calculation: that up to 100,000 jobs would be created because the 10,000 green cards would go to investors. On October 26, 1990, Sen. Paul Simon (D-IL) stated, “This one provision will generate over $8 billion annually in new investment in small and independent U.S. businesses and provide up to 100,000 new jobs for Americans.”

Rep. Lamar Smith (R-TX) spelled out the calculation explicitly, stating, “if these 10,000 investor visas are taken advantage of, it will create a minimum of 100,000 jobs in the United States” (emphasis added). Another member interrupted him to ask where the figure came from, and Rep. Smith responded that “10,000 investors may come into the country if they are going to start a business that will employ at least a minimum of 10 employees. That is where the figure comes from of 100,000 guaranteed jobs.” Rep. John Bryant (D-TX) who opposed the provision described the relationship between subsection (b) and subsection (d) in the EB-5 context this way:

We do not have room for all the family unification that was in the bill when it left the House, but we have room for 10,000 persons who can qualify for the United States by buying citizenship here if they have a million bucks to do it. What the bill says, if they will come into the country and invest enough to create 10 jobs, they can stay. This is all they have to do. After that, they can bring in their wife and kids.

In other words, Rep. Bryant also understood the provision to allow 10,000 investors who, if they created 10 jobs, could then additionally bring their spouses and children. This means that the current EB-5 backlog for Chinese investors simply should not exist because it is entirely the result of the government’s inaccurate interpretation of the law, namely, that the spouses and children of investors count against the quota. But members of Congress explicitly envisioned 10,000 investors under the quota of 10,000.

The really important fact in this is that the provision that grants green cards to the spouses and children of EB-5 investors also applies to all other immigrants under section 203: family-sponsored immigrants, employer-sponsored immigrants, or diversity lottery winners. If Congress believed that provision did not count spouses and children of EB-5 investors against its quota, then the same would have to be true for the other categories, which also have long backlogs.  

This evidence comes in addition to a tremendous amount of textual support for this position. In fact, there is absolutely no indication in the text of the law that spouses and children should count against the cap, and every reason to believe that they should not. It is abundantly clear that the government is cheating legal immigrants, forcing them to wait much longer than they should have to. The government should stop this erroneous practice, or someone should sue to stop it.

Are patents property rights, or are they governmentally created privileges that can be altered without judicial proceedings?  The Supreme Court recently decided in Oil States Energy Services v. Greene’s Energy Group for the latter view and upheld the constitutionality of an administrative review process that opponents say violates the right to a trial by jury.  The current issue of Regulation contains two articles that argue strongly for and against the property-rights view of patents.  

In “The Patent System at a Crossroads,” Johnathan Barnett, a law professor at the University of Southern California, argues that Oil States is a pivotal moment in a decades-long erosion of intellectual property rights. In his view, this erosion is misguided.

Barnett contends that the criticisms of a strong patent-rights system overlook recent empirical evidence and have overestimated the impact and scope of problems including “patent trolls” (firms that own patents but do not manufacture products), “royalty stacks” (the total demands of multiple intellectual property holders for remuneration leave too little revenue left for the manufacturer), and “patent thickets” (complex and conflicting legal claims that increase transaction costs for manufacturers).

In “Miles to Go Before We Sleep,” Johnathon Stroud, chief intellectual property officer at Unified Patents, argues that Barnett ignores other evidence that supports the elimination of “weak” patents through an administrative process created by the 2011 America Invents Act.

Stroud argues that patents are and always have been a complex regulatory framework designed by Congress to incentivize innovation rather than simple property. The administrative process at issue in Oil States is just another in a long series of adjustments to the patent system. 

While the Supreme Court has agreed with Stroud’s view, the empirical impacts of the decision are yet to be seen. After reading these two articles, readers can decide for themselves whether the Court’s decision that patents are not property rights is correct. 

Written with research assistance from David Kemp.

For months, news articles and commentaries have decried the supposedly huge tax cuts for the rich passed by Republicans in December. In a classic rhetorical formulation, a New York Times editorial in February said, “Republicans designed the law to principally benefit wealthy families while offering crumbs to low-income and middle class families.”

Actually, the largest relative tax cuts went to the middle class, as I discuss here. But perhaps some people have fixed views on the tax cut, and can’t imagine the Republicans doing anything other than favors for plutocrats.

So let’s try a different angle and look at overall burdens under the GOP tax law, which went into effect January 1. The official tax scorekeeper, the Joint Committee on Taxation, recently published estimates of average income tax rates by income group for 2018, which are presented in the table below. The tax rates are income taxes paid divided by total income within each group.

Tax rates rise rapidly as income rises above $50,000 a year. The $1 million and over group pays a 10 times higher share (26.3 percent) of their income to taxes than does the middle $50,000 to $75,000 group (2.4 percent).

In aggregate, households with incomes of less than $50,000 do not pay any federal income taxes. Instead, they receive large subsidies from the U.S. Treasury in the form of refundable tax credits. Those subsidies to low earners are expected to jump from $83 billion a year before the tax law to $99 billion after the tax law (page 48).

That is more than crumbs.


Data from Table A-6.

Conservatives are railing against dual decisions by the British government to prevent Alfie Evans’ parents from transporting him to Italy for further treatment, and to order Alfie’s doctors to withdrawal life support from Alfie, which they did, and which soon led to Alfie’s death. Conservatives are claiming this is what you get under socialized medicine: heartless government will override parental rights to pull the plug on your children. My thoughts on Alfie’s case are still tentative, but I think that’s a total misreading. The tragic case of Alfie Evans had almost nothing to do with socialized medicine. 

As hostile as libertarians are to government, even we believe government can legitimately order the withdrawal of life support, and prohibit parents from moving a child to obtain further treatment, when that treatment would fruitlessly prolong a child’s suffering – i.e., when further treatment would be akin to torture. In such cases, the government intervenes to protect the child’s rights. (British law frames the decision in terms of the “best interests” of the child, but it seems to me that language clouds the issue and thereby unnecessarily inflames passions.) 

There is no objectively right place to draw the line between cases in which the government should and should not intervene. But I don’t know anyone who thinks it never should. If anyone does make that argument, they’re just wrong. 

There is plenty of room to argue about whether British law and courts drew the line in the right place here. It did not appear Alfie was suffering, but doctors could not completely rule it out. They all agreed that further treatment was futile, though. Is it torture to provide futile treatment to a kid who likely can’t feel pain?

The only way socialized medicine might have something to do with Alfie’s case is that decades of socialized medicine might have shaped the values and attitudes of the elites who make the ultimate decision about where to draw that line. It is not crazy to think that the incentives the British National Health Service creates to provide less care, and the stiff-upper-lip attitudes that lead Britons to tolerate queues and other forms of explicit and implicit government rationing all for the Greater Good, might influence where the elites draw that line. But if the influence of the NHS leads British elites to be more likely to pull the plug on Alfie, that is not obviously or objectively wrong. 

Nor is it the only way socialized medicine might influence where elites draw the line. The U.S. Medicare program is a system of socialized medicine that imposes no constraints on medical spending or consumption. Decades of experience with it and similar socialized-medicine programs have created a pervasive belief among U.S. physicians and policymakers that more medicine is always better. (Spolier alert: it’s not.) So if U.S. conservatives want to make the argument that decades of socialized medicine have made Britain’s elites too willing to pull the plug on Alfie, they must also confront the possibility that decades of socialized medicine have made them too willing to tolerate the torture of children like Alfie.

I don’t know what the right answer was in Alfie’s case. I do know Alfie’s case is not an illustration of the failures of socialized medicine.

I also know that advocates of socialized medicine have exactly zero right to complain about the ignorance of some opponents of socialized medicine, because socialized medicine also socializes the cost of ignorance.

And I know one more thing: there’s a hug and a pint waiting for Alfie’s parents, Tom and Kate, in Washington, D.C.

During my panel at the Conservative Political Action Conference, conservative columnist Ralph Hallow said that the United States is “bringing in people with no experience with our idea that the individual has ultimate worth and that the government exists only because we say it can.” For the past couple of months, I gathered data to test this claim. Here’s what I found: while immigrants do have less experience with liberal democracy than Americans do, the recent wave of immigrants actually comes from much more democratic countries than earlier waves.

I calculated the level of democracy using the Polity dataset from the Center for Systemic Peace, which is the only data series on democracy that goes back to the mid-19th century. Polity scores are measured on a 21-point scale from -10 (absolute autocracy) to +10 (consolidated democracy). They cover all independent states with a population greater than 500,000. Their variables measure how open and competitive the electoral system is and how controlled the executive is in its use of power—not the perfect measure of Hallow’s idea, but the best that we have.

These regimes can be grouped into democracies (+5 and up), autocracies (-5 and less), and anocracies (between -5 and +5). An example of a democracy with a polity score of +10 is Sweden, which elects its parliament in free and open elections. An example of an autocracy with a polity score of -10 is Saudi Arabia, which has a hereditary system of government and few civil liberties, and an example of an anocracy with a score of 1 is Bangladesh, which has struggled with military control of its elections and civil liberties.

Figure 1 groups immigrants into these three political system classifications since 1857, when the United States began recording country of origin of legal immigrant arrivals. As it shows, the 19th and early 20th century saw large numbers of immigrants from anocracies, some from democracies, and few from autocracies. Only in the 1920s, after World War II and the closing of immigration to the United States from Eastern Europe, were democracies temporarily in the majority. During the Cold War period, autocracies played a larger role in driving immigrants to come to the United States, but following the collapse of the Berlin wall in 1989, immigrants from democracies have dominated the flow.

U.S. immigrants by political system in home country

Figure 2 groups immigrants into three periods: the “Great Wave” of immigrants who came before 1930 (32 million), the “Small Wave” who entered during the period of limited immigration from 1930 to 1975 (9 million), and the “New Wave” who entered after 1975 (34 million). It also shows the most recent group of new immigrants from 2012 to 2016. The exact start of the New Wave is debatable. Many people point to 1965, but I prefer to count from 1976 because it is the first year that topped 500,000 immigrants since the 1920s, coinciding with the decision to admit Vietnamese refugees, and 90 percent of all immigrants still in the United States in 2016 entered after 1975.

As Figure 2 shows, a majority of New Wave immigrants came from democracies, a share that was more than double the share during the Great Wave. From 2012 to 2016, the share from democracies reached two thirds of all arrivals. The share from autocracies was a little larger during the New Wave, but from 2012 to 2016, it had dropped back to 18 percent.

U.S. immigrants by political system in home country

Figure 3 provides the weighted average polity score for all immigrants for the three periods of immigration, showing that the average immigrant has increasingly come from countries that are more democratic. The weighted average polity score increased from -0.2 during the Great Wave to +2.8 during the New Wave. During the most recent five years, it has risen to +4.1.

Weighted polity score of home country for immigrants

The bottom line is that although immigrants to the United States today are less likely to have experience with liberal democracies than Americans, they are much more likely to have lived in liberal democracies than the ancestors of most Americans when they first arrived here.

If 2017 was the year of fiery trade talk, 2018 has been the year of provocative trade actions. During the first four months, President Trump imposed or announced intentions to impose tariffs on thousands of products stemming from five investigations conducted under three different, seldom-used laws. Talk of trade war is rampant and, as May begins, the troops are in formation—a circular formation, but a formation nonetheless! By Memorial Day, it should become much clearer whether their orders will be to shoot, hold fire, or demobilize.

What follows is a brief recap of the relevant trade policy actions of 2018 that have taken us to the present situation.

In January, the president imposed “safeguard” restrictions following two separate investigations of imports of large washers and solar cells, under Section 201 of the Trade Act of 1974.  Tariffs and tariff rate quotas, respectively, were imposed for a period of four years in both cases against imports from most countries. These safeguard measures are absolutely stupid as a matter of economics, but relatively trivial as far as the impact on U.S.-China relations and the prospects for trade war are concerned.

In March, under the guise of acting to protect national security, Trump invoked Section 232 of the Trade Expansion Act of 1962 to impose tariffs on imported steel and aluminum from all countries. Soon after the announcement and before the tariffs took effect, Trump offered temporary exemptions to several trading partners to “encourage” them to play nice: buy more U.S. stuff; sell Americans less foreign stuff; increase NATO spending (EU countries); agree to U.S. terms on various aspects of the NAFTA renegotiations (Canada, Mexico); agree to export quotas (South Korea) and the temporary exemptions will be made permanent. Well, as the temporary exemption period was about to expire on May 1, the president extended the deadline to June 1. Presumably, if the NAFTA negotiations wrap up this month (apparently, a real possibility) and Trump gets what he wants, Canada and Mexico will be permanently exempted from the steel and aluminum tariffs. Congrats!  It’s much less clear that the Europeans are willing to submit to these tactics. They’ve crafted a retaliation list and seem likely to go that route.  The Chinese, whose steel and aluminum exports have been subject to the tariff since March 23, have already retaliated against a list of 128 U.S. products (amounting to about $3 billion in U.S. exports), including ethanol, wine, nuts, fruit, and a few other commodities. 

Although the “national security” restrictions on steel and aluminum are a more significant irritant than the safeguard restrictions on washers and solar cells, they still only amount to a flea bite on an elephant’s hide relative to Trump’s most recent, most provocative, and—some would argue—most justifiable action so far. At the beginning of April, Trump announced his intention to impose tariffs on 1,300 Chinese products accounting for about $50 billion of exports to the United States, as a result of an investigation into Chinese intellectual property and forced technology transfer policies, under Section 301 of the Trade Act of 1974. The “remedy” also includes instructions for the Treasury Department to publish new investment rules that will make it harder for Chinese companies to purchase U.S. technology and U.S. tech companies.  Within a few hours of the U.S. announcement, China published a list of U.S. products, amounting to about $50 billion of exports to China (farm products, airplanes, autos, etc.), that it would subject to retaliatory duties of 25 percent should the U.S. measures take effect.

As of that point, between the 232 and the 301 cases, $106 billion of U.S.-China trade was in the crosshairs (about 15% of two-way trade). Then in reaction to China’s retaliation threat, Trump raised the stakes by instructing the USTR to identify another $100 billion of Chinese products to assess with tariffs.  That list has not yet been published, but if it is and China responds commensurately (by targeting another $100 billion of U.S. exports), its list would have to include ALL U.S. exports to China because total U.S. goods exports to China in 2017 amounted to $130 billion. (Services exports add another $50 billion, but they’re not easy to hit with tariffs). The next likely target would be U.S. companies operating in China—discriminatory taxes, regulations, restrictions, etc.  In any event, the amount of trade subject to tariffs ($306 billion) would begin to approach half the value of the two-way trade—a decidedly cataclysmic outcome.

President Trump seems to be aware of the stakes.  Last month he tweeted that trade wars can be good and are winnable. He cites the bilateral U.S. trade deficit as evidence that China needs us more than we need them.  Hopefully, he’s rational enough to realize that his avoidable actions would trigger a massive global economic contraction which, even if the United States is less hurt than others, history would not look kindly upon.

The month of May offers some opportunities to ratchet down the tensions and, even, find some solutions. The Trump administration’s trade policy team—USTR Robert Lighthizer, Commerce Secretary Wilbur Ross, Treasury Secretary Steven Mnuchin, National Economic Council Director Larry Kudlow, and National Trade Council Director Peter Navarro—is in Beijing this week, presumably to get China to commit to certain actions that would enable tensions to be dialed down.  Mid-month, the USTR is holding a hearing for the public airing of views about the Section 301 remedies, where it will be impressed upon the administration how costly a trade war would be.  And, presumably, toward the end of the month is the momentous Korean Summit.  If the president gets the results he’s looking for (whatever they may be) and Beijing is perceived as having played an important role in reaching that outcome, that could give Trump the cover he probably needs to put his pistols back in their holsters and focus on an effective, comprehensive U.S.-China free trade agreement. That should be the primary goal of U.S. trade policy during the Trump administration.

Arguments against immigration come across my desk every day but I rarely encounter a unique one.  In 2016, I wrote a blog responding to the most common arguments with links to different research.  Since then, academics and policy analysts have produced new research that should be included.  These are the main arguments against immigration, my quick responses to them, and links to some of the most relevant evidence:

1. “Immigrants will take American jobs, lower our wages, and especially hurt the poor.”

This is the most common argument and also the one with the greatest amount of evidence rebutting it.  First, the displacement effect is small if it even affects natives at all.  Immigrants are typically attracted to growing regions and they increase the supply and demand sides of the economy once they are there, expanding employment opportunities.  Second, the debate over immigrant impacts on American wages is confined to the lower single digits—immigrants may increase the relative wages for some Americans by a tiny amount and decrease them by a larger amount for the few Americans who directly compete against them.  Immigrants likely compete most directly against other immigrants so the effects on less-skilled native-born Americans might be very small or even positive.   

New research by Harvard professor George Borjas on the effect of the Mariel Boatlift—a giant shock to Miami’s labor market that increased the size of its population by 7 percent in 42 days—finds large negative wage effects concentrated on Americans with less than a high school degree.  To put the scale of that shock to Miami in context, it would be as if 22.4 million immigrants moved to America in a six-week period—which will not happen.  Some doubt Borjas’s finding and Borjas’s response.  Even if the Mariel Boatlift had such a large and negative effect on the wages of native-born high-school dropouts in Miami, it had a large positive impact on the wages of natives with only a high school education, to such a degree that the wages of lower-skilled Miamians actually increased.  The rapid recovery of Hispanic wages in Miami also produces some doubt as to Mariel’s effect on native wages as Hispanics were the most likely to suffer wage declines from competition with the new Cuban immigrants.  Economists Michael Clemens and Jennifer Hunt have the most devastating response to Borjas: His response was due entirely to a different sample collected in Miami over the years where he observed the wage decline.  Thus, the data collectors made Mariel look like it had a large negative wage effect by changing whom they surveyed. 

Although some doubt Borjas’s finding regarding Mariel, it is not in doubt that immigration has overall increased the wages and income of Americans.  The smallest estimated immigration surplus, as it is called, is equal to about 0.24 percent of GDP—which excludes the gains to immigrants and just focuses on those of native-born Americans.

2. “Immigrants abuse the welfare state.”

Most legal immigrants do not have access to means-tested welfare for their first five years here with few exceptions that are mostly determined on the state level and funded with state taxes.  Illegal immigrants don’t have access at all—except for emergency Medicaid. 

Immigrants are less likely to use means-tested welfare benefits than similar native-born Americans.  When they do use welfare, the dollar value of benefits consumed is smaller.  If poor native-born Americans used Medicaid at the same rate and consumed the same value of benefits as poor immigrants, the program would be 42 percent smaller. 

Immigrants also make large net contributions to Medicare and Social Security, the largest portions of the welfare state, because of their ages, ineligibility, and their greater likelihood of retiring in other countries.  Far from draining the welfare state, immigrants have given the entitlement portions a few more years of operation before bankruptcy.  If you’re still worried about foreign-born consumption of welfare benefits, as I am, then it is far easier and cheaper to build a higher wall around the welfare state, instead of around the country.

3. “Immigrants increase the budget deficit and government debt.”

Related to the welfare argument is the argument that immigrants consume more in government benefits than they generate in tax revenue.  The empirics on this are fairly consistent— immigrants in the United States have about a net-zero impact on government budgets (the published version of that working paper is available here).  A new model published by the National Academies of Sciences in their massive literature survey of the economics of immigration finds that age is the most important factor in estimating whether a new immigrant will be a net fiscal drain or contributor to government coffers, followed by education.  In their best model (results in Table 8-14), immigrants who are high-school dropouts have a net-positive fiscal impact on government coffers if they arrive before age 25 while the most educated immigrants have a negative effect if they arrive after age 64.  Their model also finds that Americans with a low level of education impose a larger fiscal burden than immigrants with the same education level.

It seems odd that poor immigrants don’t create a larger deficit, but there are many factors explaining that.  The first is that higher immigrant fertility and the long-run productivity of those people born in the United States generates a lot of tax revenue.  The second is that immigrants grow the economy considerably (this is different from the immigration surplus discussed above) and increase tax revenue.  The third is that many immigrants come when they are young but not young enough to be in public schools for as long as natives, thus they work and pay taxes before consuming hundreds of thousands of dollars in public schools costs and welfare benefits—meaning they give an immediate fiscal boost.  There are many other reasons as well. 

Although the tax incidence from immigrants is what matters for the fiscal consequences, between 50 percent and 75 percent of illegal immigrants comply with federal tax law.  States that rely on consumption or property taxes tend to garner a surplus from taxes paid by unlawful immigrants while those that rely on income taxes do not. 

4. “Immigrants increase economic inequality.”

In a post-Piketty world, the argument that immigration is increasing economic inequality within nations is getting some attention.  While most forms of economic inequality are increasing among people within nations, global inequality is likely falling and at a historic low point due to rapid economic growth in much of the world over the last generation

The evidence on how immigration affects economic inequality in the United States is mixed—some research finds relatively small effects and others find substantial ones.  The variance in findings can be explained by research methods—there is a big difference in outcomes between a study that measures how immigration affects economic inequality only among natives and another study that includes immigrants and their earnings.  Both methods seem reasonable but the effects on inequality are small compared to other factors.  A more recent finding is that immigrants increase wealth inequality by their effect on the price of real-estate in American cities.  About a third of the real-estate price increase from 1970-2010 in American cities can be explained by the increase in immigration.

Frankly, I don’t see the problem if an immigrant quadruples his income by coming to the United States, barely affects the wages of native-born Americans here, and increases economic inequality as a result.  The standard of living is much more important than the earnings distribution and everybody in this situation either wins or is unaffected.

5. “Today’s immigrants don’t assimilate like immigrants from previous waves did.”

There is a large amount of research that indicates immigrants are assimilating as well as or better than previous immigrant groups—even Mexicans.  The first piece of research is the National Academy of Science’s (NAS) September 2015 book titled The Integration of Immigrants into American Society.  It’s a thorough and brilliant summation of the relevant academic literature on immigrant assimilation.  Bottom line:  Assimilation is never perfect and always takes time, but it’s going very well.

The second book is a July 2015 book entitled Indicators of Immigrant Integration 2015 that analyzes immigrant and second-generation integration on 27 measurable indicators across the OECD and EU countries.  This report finds more problems with immigrant assimilation in Europe, especially for those from outside of the European Union, but the findings for the United States are quite positive.

The third work, by University of Washington economist Jacob Vigdor, compares modern immigrant civic and cultural assimilation to that of immigrants from the early 20th century (an earlier draft of his book chapter is here, the published version is available in this collection).  If you think early 20th century immigrants and their descendants eventually assimilated successfully, Vigdor’s conclusion is reassuring:

While there are reasons to think of contemporary migration from Spanish-speaking nations as distinct from earlier waves of immigration, evidence does not support the notion that this wave of migration poses a true threat to the institutions that withstood those earlier waves.  Basic indicators of assimilation, from naturalization to English ability, are if anything stronger now than they were a century ago.

Ethnic attrition, which is when immigrants and their descendants shed their identification with ethnic or country-of-origin identity, does complicate how social scientists measure immigrant assimilation.  Through intermarriage and time, the more educated descendants of Hispanic immigrants fail to identify as Hispanic which biases the view of assimilation over the generations for those who rely purely on ethnic self-identification.  Adjusting for ethnic attrition by tracking the outcomes of the descendants of all Hispanic immigrants shows rapid and continual assimilation over the generations that is comparable to the immigrants from the Age of Migration that ended a century ago. 

For the nostalgic among us who believe that immigrants assimilated more smoothly in the past, the plethora of ethnic and anti-Catholic riots, the nativist Know-Nothing movement, and immigrant groups that refused to assimilate are a useful tonic.  Immigrant assimilation is always messy and it looks bad when you’re in the thick of it, as we are right now, but the trends are positive and pointing in the right direction.

Even though the evidence of immigration assimilation should comfort skeptics, some have proposed massive new government programs to help boost immigrant assimilation.  However, evidence from the early 20th century Americanization Movement suggests that such efforts will fail or that they could even backfire and make new immigrants and their descendants less culturally and patriotically American.  There is evidence that German Americans reacted most negatively to anti-German Americanization policies during World War I, to such an extent that they walled themselves and their children off from American society, which slowed the pace of assimilation.  Immigrant assimilation is too important to leave it in the hands of bureaucrats or other social planners who ignore the “if it ain’t broke, don’t fix it” principle.

6. “Immigrants are a major source of crime.”

This myth has been around for over a century.  It wasn’t true in 1896, 1909, 1931, 1994, or more recently.  Immigrants are less likely to be incarcerated for violent and property crimes and cities with more immigrants and their descendants are more peaceful.  Some immigrants do commit violent and property crimes but, overall, they are less likely to do so. 

The most contentious debate concerns whether illegal immigrants are more likely to be criminals than natives or legal immigrants.  A recent finding on this issue shows that illegal immigration is not correlated with violent crime rates nor is it causal.  Data limitations on the federal government force researchers to estimate the incarcerated illegal immigrant population using the residual estimation method which finds that illegal immigrants are much less likely to be incarcerated than native-born Americans but more likely than legal immigrants.  The state of Texas actually recorded arrests and convictions for specific crimes by the immigration status of the arrestee and convict.  In 2015 in Texas, there were 1,794 convictions against natives per 100,000 natives, 782 convictions of illegal immigrants for every 100,000 illegal immigrants, and only 262 convictions of legal immigrants per 100,000 of them.  For all but four crimes that accounted for 0.18 percent of all criminal convictions in Texas in 2015, there were fewer convictions against illegal immigrant than against natives.  The year 2016 shows even lower criminal conviction rates for illegal immigrants relative to natives in Texas. 

7. “Immigrants pose a unique risk today because of terrorism.”

Terrorism is not a modern means to wage war.  There were a large number of bombings and terrorist attacks in the early 20th century, most of them committed by immigrants, socialists, and their fellow travelers.  Today, the deaths from terrorism committed by immigrants are greater than they were a century ago but the risk is still low compared to the benefits of immigration.  Overall, immigration is not correlated with terrorist attacks and it certainly does cause them but, in addition to that, the risk is also small.  For instance, the annual chance of being murdered in a terrorist attacked committed by a foreigner from 1975 through the end of 2015 was about 1 in 3.6 million per year.  Almost 99 percent of the people murdered by foreign-born terrorists on U.S. soil were murdered on 9/11 and the attackers entered on tourist visas and one student visa, not immigrant visas. 

The risk of foreign-born terrorism on U.S. soil has also increased fears over the government’s vetting system for new immigrants and travelers, prompting President Trump to temporarily ban travelers and immigrants from certain countries.  But according to my colleague David Bier, there have been very few vetting failures since 9/11.  From 2002 through 2016, only one radicalized terrorist entered the United States for every 29 million visa or status approvals.  Only one of the post-9/11 vetting failures resulted in an attack on U.S. soil, meaning that a single deadly terrorist entered as a result of a vetting failure for every 379 million visas or status approvals from 2002 through 2016.  That is a very low risk especially compared to the pre-9/11 vetting system.

8. “It’s easy to immigrate to America and we’re the most open country in the world.”

It is very difficult to immigrate to the United States.  Ellis Island closed down a long time ago.  There isn’t a line for most immigrants in most cases and when there is, it can take decades or centuries.  This chart shows the confusing and difficult path to a green card.  Does that look easy to you?

America allows greater numbers of immigrants than any other country.  However, the annual flow of immigrants as a percent of our population is below most other OECD countries because the United States has such a large population.  The percentage of our population that is foreign-born is about 13.5 percent—below historical highs in the United States and less than half of what it is in New Zealand and Australia.  America is great at assimilating immigrants but other countries are much more open to legal immigration.

9. “Amnesty or a failure to enforce our immigration laws will destroy the Rule of Law in the United States.”

For a law to be consistent with the principle of the Rule of Law, it must be applied equally, have roughly ex ante predictable outcomes based on the circumstances, and be consistent with our Anglo-Saxon traditions of personal autonomy and liberty.  Our current immigration laws violate all of those principles.  The immigration laws are applied differently based on people’s country of birth via arbitrary quotas and other regulations, the outcomes are certainly not predictable, and they are hardly consistent with America’s traditional immigration policy and our conceptions of liberty.

For the Rule of Law to be present, good laws are required, not just strict adherence to government enforcement of bad laws.  An amnesty is an admission that our past laws have failed, they need reform, and that the net cost of enforcing them in the meantime exceeds the benefits.  That is why there have been numerous immigration amnesties throughout American history. 

Enforcing laws that are inherently capricious and that are contrary to our traditions is inconsistent with a stable Rule of Law, which is a necessary but not sufficient precondition for economic growth.  Enforcing bad laws poorly is better than enforcing bad laws uniformly despite the uncertainty.  In immigration, poor enforcement of our destructive laws is preferable to strict enforcement but liberalization is the best option.  Admitting our laws failed, granting an amnesty for lawbreakers, and reforming the law would not doom the Rule of Law in the United States—it would strengthen it.

10. “National sovereignty.”

By not exercising control over borders through actively blocking immigrants, the users of this argument warn, the United States government will surrender a vital component of its national sovereignty.  Rarely do users of this argument explain to whom the U.S. government would actually surrender sovereignty.  Even in the most extreme open immigration policy imaginable, total open borders, national sovereignty is not diminished assuming that our government’s institutions chose such a policy (I am not supporting totally open borders here, I am just using it as a foil to show that even in this extreme situation this argument fails).  How can that be?   

The standard Weberian definition of a government is an institution that has a monopoly (or near monopoly) on the legitimate use of violence within a certain geographical area.  It achieves this monopoly by keeping out other competing sovereigns.  Our government maintains its sovereignty by excluding the militaries of other nations, by stopping insurgents, and interrupting the plans of terrorists.

However, U.S. immigration laws are not primarily designed to keep out foreign armies, spies, or insurgents.  The main effect of our immigration laws is to prevent willing foreign workers from selling their labor to voluntary American purchasers.  Such economic controls do not aid in the maintenance of national sovereignty and relaxing or removing them would not infringe upon the government’s national sovereignty any more than a policy of unilateral free trade would.  If the United States would return to its 1790-1875 immigration policy then foreign militaries crossing U.S. borders would be countered by the U.S. military.  Allowing the free flow of non-violent and healthy foreign nationals does nothing to diminish the U.S. government’s legitimate monopoly on the use of force in the Weberian world.

There is also a historical argument that free immigration and national sovereignty are not in conflict.  From 1790-1875 the federal government placed almost no restrictions on immigration.  At the time, states imposed restrictions on the immigration of free blacks and likely indigents through outright bars, taxes, passenger regulations, and bonds.  States did not enforce many of those restrictions and the Supreme Court struck down the rest of them in the 1840s.  However, that open immigration policy did not stop the United States from fighting three major wars: the War of 1812, the Mexican American War, and the Civil War.  The U.S. government’s monopoly on the legitimate use of force during that time was certainly challenged from within and without but it maintained its national sovereignty even with near open borders.  Those who claim the U.S. government would lose its national sovereignty under a regime of free immigration have yet to reconcile their opinion with America’s past.  To argue that open borders would destroy American sovereignty is to argue that the United States was not a sovereign country when George Washington, Andrew Jackson, or Abraham Lincoln were presidents.  We do not have to choose between free immigration and U.S. national sovereignty.

Furthermore, national sovereign control over immigration means that the government can do whatever it wants with that power—including relinquishing it entirely.  It would be odd to argue that sovereign national states have complete control over their border except they that cannot open them too much.  Of course they can, as that is the essence of sovereignty.  After all, I am arguing that the United States government should change its laws to allow for more legal immigration, not that the U.S. government should cede all of its power to a foreign sovereign. 

11. “Immigrants won’t vote for the Republican Party—look at what happened to California.”

This is an argument used by some Republicans and conservatives to oppose liberalized immigration.  They point to my home state of California as an example of what happens when there are too many immigrants and their descendants: Democratic Party dominance.  The evidence is clear that Hispanic and immigrant voters in California in the early to mid-1990s did turn the state blue but that was as a reaction to California’s GOP declaring political war on them.  Those who claim that immigration-induced change in demographics is solely responsible for the shift in California’s politics have to explain the severe drop-off in support for the GOP at exactly the same time that the party was using anti-immigration propositions and arguments to win the 1994 election.  They would further have to explain why Texas Hispanics are so much more Republican than those in California are.  Nativism has never been the path toward national party success and frequently contributes to their downfall.  In other words, whether immigrants vote for Republicans is mostly up to how Republicans treat them.    

Republicans should look toward the inclusive and relatively pro-immigration policies and positions adopted by their fellow party members in Texas and their subsequent electoral success there rather than trying to replicate the foolish nativist politics pursued by the California Republican Party.  Although some Texas Republicans have changed their tone on immigration in recent years, they have focused primarily on border security rather than forcing every state employee to help enforce immigration law.  My comment here assumes that locking people out of the United States because they might disproportionately vote for one of the two major parties is a legitimate use of government power—I do not believe that it is.

12. “Immigrants bring with them their bad cultures, ideas, or other factors that will undermine and destroy our economic and political institutions.  The resultant weakening in economic growth means that immigrants will destroy more wealth than they will create over the long run.”

This is the most intelligent anti-immigration argument and the one most likely to be correct although the evidence does not support it.  Economists Michael Clemens and Lant Pritchett lay out an enlightening model of how immigrants from poorer countries could theoretically weaken the growth potential of the countries that they immigrate to. Their model assumes that immigrants transmit anti-growth factors to the United States in the form of lower total factor productivity.  However, as the immigrants assimilate, these anti-growth factors weaken over time.  Congestion could counteract that assimilation process when there are too many immigrants with too many bad ideas, thus overwhelming assimilative forces.  Clemens is rightly skeptical that this is occurring but his paper lays out the theoretical point where immigration restrictions would be efficient by balancing the benefits of economic expansion from immigration with the theoretical costs of degradation in economic growth.

Empirical evidence does not point to this effect either.  In a recent academic paper, my coauthors and I compared economic freedom scores with immigrant populations across over 100 countries over 21 years.  Some countries were majority immigrant while some had virtually none.  We found that the larger a country’s immigrant population was in 1990, the more economic freedom increased in the same country by 2011.  Immigrant countries of origin did not affect the outcome.  These results held for the United States nationally but not for state governments.  States with greater immigrant populations in 1990 had less economic freedom in 2011 than those with fewer immigrants, but the difference was small.  The national increase in economic freedom more than outweighed the small decrease in economic freedom in states with more immigrants.  Additionally, large shocks into specific countries result in vast improvements in the economic freedom score.  Large immigrant populations also do not increase the size of welfare programs or other public programs across American states and there is a lot of evidence that more immigrants in European countries actually decreases support for big government.     

Although this anti-immigration argument could be true, it seems unlikely to be so for several reasons.  First, it is very hard to upend established political and economic institutions through immigration.  Immigrants change to fit into the existing order rather than vice versa.  Institutions are ontologically collective—my American conceptions of private property rights would not accompany me in any meaningful way if I went to Cuba and vice versa.  Local institutions are incredibly robust under a model called the Doctrine of First Effective Settlement.  It would take a rapid inundation of a local area by immigrants and a replacement of natives to upend institutions in most places.     

The second possibility is immigrant self-selection: Those who decide to come here mostly admire American institutions or have opinions on policies that are very similar to those of native-born Americans.  As a result, adding more immigrants who already broadly share the opinions of most Americans will not affect policy.  This appears to be the case in the United States.

The third explanation is that foreigners and Americans have very similar policy opinions. This hypothesis is related to those above, but it indicates an area where Americans may be unexceptional compared to the rest of the world.  According to this theory, Americans are not more supportive of free markets than most other people, we are just lucky that we inherited excellent institutions from our ancestors.

The fourth reason is that more open immigration makes native voters oppose welfare or expanded government because they believe immigrants will disproportionately consume the benefits (regardless of the fact that poor immigrants actually under-consume welfare compared to poor Americans).  In essence, voters hold back the expansion of those programs based on the belief that immigrants may take advantage of them.  As Paul Krugman aptly observed, “Absent those [immigration] restrictions, there would have been many claims, justified or not, about people flocking to America to take advantage of [New Deal] welfare programs.”

As the late labor historian (and immigration restrictionist) Vernon M. Briggs Jr. wrote, “This era [of immigration restrictions] witnessed the enactment of the most progressive worker and family legislation the nation has ever adopted.”  None of those programs would have been politically possible to create amidst mass immigration. Government grows the fastest when immigration is the most restricted, and it slows dramatically when the borders are more open.

Even Karl Marx and Friedrich Engels thought that the prospects for working-class revolution in the United States were smaller here due to the varied immigrant origins of the workers who were divided by a high degree of ethnic, sectarian, and racial diversity.  That immigrant-led diversity may be why the United States never had a popular worker, labor, or socialist party. 

The most plausible argument against liberalizing immigration is that immigrants will worsen our economic and political institutions, thus slowing economic growth and killing the goose that lays the golden eggs.  Fortunately, the academic and policy literature does not support this argument and there is some evidence that immigration could actually improve our institutions.  Even the best argument against immigration is still unconvincing.

13. “The brain drain of smart immigrants to the United State impoverished other countries.”

The empirical evidence on this point is conclusive: The flow of skilled workers from low-productivity countries to high-productivity nations increases the incomes of people in the destination country, enriches the immigrants, and helps (or at least does not hurt) those left behind.  Furthermore, remittances that immigrants send home are often large enough to offset any loss in home country income through emigration.  In the long run, the potential to immigrate and the higher returns from education increase the incentive for workers in the developing world to acquire skills that they otherwise might not—increasing the quantity of human capital.  Instead of being called a brain drain, this phenomenon should be accurately called a skill flow.   

Economic development should be about increasing the incomes of people and not the amount of economic activity in specific geographical regions.  Immigration and emigration do just that.      

14. “Immigrants will increase crowding, harm the environment, and [insert misanthropic statement here].”

The late economist Julian Simon spent much of his career showing that people are an economic and environmental blessing, not a curse.  Despite his work, numerous anti-immigration organizations today were funded and founded to oppose immigration because it would increase the number of Americans who would then harm the environment.  Yes, seriously—just read about John Tanton who is the Johnny Appleseed of modern American nativism.

Concerns about overcrowding are focused on publicly provided goods or services—like schools, roads, and heavily zoned urban areas.  Private businesses do not complain about crowding as they can boost their profits by expanding to meet demand or charging higher prices.  If crowding was really an issue then privatizing government functions so they would then have an incentive to rapidly meet demand is a cheap and easy option.  Even if the government does not do that, and I do not expect them to in the near future, the problems of crowding are manageable because more immigrants also means a larger tax base.  Reforming or removing local land-use laws that prevent development would also go a long way to alleviating any concerns about overcrowding. 

Although we should think of these issues on the margin, would you rather be stuck with the problems of crowding that they have in Houston or the problem of not enough crowding like in Detroit? 

There are other arguments that people use in opposition to immigration.  Many of those arguments revolve around issues of “fairness”—a word with a fuzzy meaning that differs dramatically among people and cultures.  Arguments about fairness depend entirely upon feelings and, usually, a misunderstanding of the facts that is usually corrected by reference to my 8th point above.  These are the main arguments against immigration that I encounter and my quick responses.           

A Wall Street Journal story today captures the power of interstate tax competition:

One of the oldest names on Wall Street is moving to one of the fastest-growing cities in the South, reinforcing a recent shift in finance jobs to cheaper parts of the U.S.

AllianceBernstein Holding LP plans to relocate its headquarters, chief executive and most of its New York staff to Nashville, Tenn., in an attempt to cut costs, according to people familiar with the matter. That largely ends a 51-year presence in the nation’s traditional finance capital.

… In a memo to employees, AllianceBernstein cited lower state, city and property taxes compared with the New York metropolitan area among the reasons for the relocation. Nashville’s affordable cost of living, shorter commutes and ability to draw talent were other factors.

… Wall Street’s migration began after the last financial crisis as banks and money managers looked to trim expenses or take advantage of lower tax rates. Hiring in lower-cost regions can mean millions of dollars in annual savings.

A new tax plan passed last year by Congress also reduced tax breaks that many in the New York region heavily lean on, such as the deductibility of mortgage interest and state and local tax deductions.

Tennessee “is low cost in every respect compared to New York” including housing and transportation, said William Fox, an economist and director of the University of Tennessee’s Boyd Center for Business and Economic Research.

… AllianceBernstein, which manages $550 billion in assets, considered as many as 30 cities as part of its search, according to part of an internal memo seen by the Journal, and analyzed factors such as housing, education, weather and cost of living.

Has the thorny problem of providing law enforcement with access to encrypted data without fatally compromising user security finally been solved?  That’s the bold thesis advanced by a piece at Wired that garnered an enormous amount of attention last week by suggesting that renowned computer scientist Ray Ozzie, formerly a top engineer at Microsoft, had developed an “exceptional access” proposal that “satisfies both law enforcement and privacy purists.”  Alas, other experts have been conspicuously less enthusiastic, with good reason.  It’s worth saying a few words about why.

In one sense, the attention garnered by Ozzie’s proposal, which he’s dubbed “CLEAR,” is somewhat odd: There isn’t much here that’s fundamentally new.  A few novel wrinkles notwithstanding, Ozzie’s proposal is a variant on the very old idea of “key escrow,” which involves device manufacturers holding on to either a master key or a database of such keys that can be used to decrypt data at the request of law enforcement.  The proposal is limited to providing “exceptional access” to data “at rest” on a device, such as a smartphone, in the physical custody of law enforcement.  Ozzie’s suggests that when a user creates a passcode to encrypt the data on a device, the passcode itself should be encrypted using the device manufacturer’s public key, which is hardcoded into the cryptographic processor embedded in the device.  Then, when law enforcement wishes to access such a device in their possession, pursuant to a valid court order, they activate a special law-enforcement mode which permanently renders the device inoperable (or “bricks” it) and displays the encrypted user passcode.  This can then be sent to the manufacturer, which, upon validating that they’ve received a legitimate request from a real law enforcement agency with a valid warrant, uses their own private key (corresponding to the public key baked into the phone) to decrypt the original passcode and provide it to the requesting agency.  

In its broad outlines, this isn’t fundamentally much different from proposals that crypto experts have considered and rejected for decades.  So why has CLEAR (and Wireds article on it) generated so much interest?  A substantial part of it simply comes down to who’s offering it: Ozzie has a stellar reputation, and is offering a solution where most security experts have simply been urging governments to abandon the idea of building a police backdoor into cryptosystems.  This feeds into the seemingly widespread conviction among law enforcement types that computer scientists are really just ideologically opposed to such backdoors, and stubbornly refusing to work on developing technical solutions.  Many, moreover, may not really understand why experts tend to say such backdoors can’t be built securely, and therefore believe that Ozzie’s proposal does represent something fundamentally new: The “golden key” that all those other experts pretended couldn’t exist.  But, of course,  cryptographers have long known a system along these lines could be built: That was never the technical problem with law enforcement backdoors. (There’s perhaps some fairness to the complaint that privacy advocates haven’t always been sufficiently clear about this in arguments aimed at a mass audience, which may contribute to the impression that Ozzie’s proposal represents some significant breakthrough.)  Rather, the deep problem—or rather, one of several deep problems—has always been ensuring the security of that master key, or key database. 

That brings us to the second reason for the appeal of Ozzie’s proposal, which is essentially a rhetorical point rather than a novel technical one. Software developers and device manufacturers, Ozzie notes, already hold “master keys” of a sort: The cryptographic signing keys used to authenticate new software updates.  The way your iPhone already confirms that a new version of iOS is really a legitimate update from Apple and not some malicious code written by hackers impersonating them superficially resembles Ozzie’s proposal in reverse.  Apple uses their own private key to sign the update, and your phone confirms its authenticity using the corresponding public key baked into its cryptoprocessor.  That all-important private key is typically kept on an expensive bit of machinery called a Hardware Security Module designed to make it (in theory) possible to use the secret private key to authenticate new updates, but impossible to copy the key itself off the device.  The existence of that key does, of course, represent a security risk of a sort, but one we generally consider acceptable—far less risky than leaving users with no good way distribute authenticated security updates when bugs and vulnerabilities are discovered. Thus the argument, in effect, becomes: If it’s not a wildly unacceptable risk for developers to maintain signing keys stored on an HSM, then surely it’s equally acceptable to similarly maintain a “golden key” for law enforcement use.

This is, however, misleading in at least a couple of ways.  First, as Stanford’s Rianna Pfefferkorn has argued in a recent paper, the use cases for signing keys—used to authenticate new software releases on perhaps a monthly basis—is very different from that of a decryption key that would almost certainly need to be accessed by human beings multiple times each day.  An asset becomes inherently harder to secure the more routinely it must be accessed by legitimate users.  Second, and perhaps more importantly, the value to an adversary of a decryption key is much higher, because it has far greater potential for clandestine use. The risks associated with stolen signing keys—and we should pause to note that signing keys do indeed get stolen on occasion—are mitigated by the fact that misuse of such keys is intrinsically public.  A falsely authenticated piece of malicious code is only useful to an adversary if that code is then deployed on a target’s device, and there are a variety of mechanisms by which such a compromise is likely to be detected, at which point the key is revoked and its value to the adversary comes to an end.  Decrypting stolen data, by contrast, has no such inherently public component.  One can attempt to design an exceptional access system in a way that forces publicity about its use, but without getting too mired in the technical weeds, the fact that decryption doesn’t inherently require publicity means that in most cases this just gives an attacker the secondary problem of spoofing confirmation that their decryption has been publicly logged.  Ozzie’s suggestion that law enforcement decryption should  permanently brick the device being unlocked is one way of making it more difficult for an attacker to covertly extract data, but as Stanford’s Pfefferkorn notes, this “solution” has significant downsides of its own given that many smartphones are quite expensive pieces of technology.  

Why does it matter that a decryption key, with its potential for clandestine (and therefore repeated) use is more value to an adversary?  Because  security is in many ways as much about economics as the fine points of engineering. The same security system that would be excessive for the purpose of safeguarding my private residence might be pathetically inadequate for a bank or an art museum, for the obvious reason that there’s nothing in my house a rational adversary would dedicate hundreds of thousands of dollars’worth of resources to stealing, while a heist of the bank or the museum might well yield returns that would justify such an investment.  No security is perfect: Adequate security is security that would cost an attacker more to breach than the value they can expect to realize from that breach.  Therefore security that is adequate for an asset that is likely to be rendered useless as a result of being deployed is by no means guaranteed to be adequate for an asset that might be used many times undetected.  

There are also, of course, a host of other familiar objections one could raise to this or any other backdoor system.  If the United States government gets  such “exceptional access,” shouldn’t we expect other, nastier regimes to demand the same?  Won’t even moderately sophisticated criminals simply cease relying on compromised hardware based encryption and instead add a layer of software-based encryption sans backdoor, rendering the whole elaborate scheme ineffective?  

Even if we restrict ourselves to the narrower security question, however, Ozzie’s proposal seems susceptible to the same response other key escrow systems face, and that response is as much about economics as technology: Any master key, any centralized mechanism for compromising millions of individual devices, is too valuable to reliably secure against the sort of adversaries likely to be most interested in acquiring it.   

From 2004 to January 2013, Massachusetts state chemist Sonja Farak used drugs that she stole from or manufactured in an Amherst crime lab, causing thousands of people to be wrongfully convicted of drug crimes based on unreliable evidence. To make matters worse, prosecutors from the Massachusetts Attorney General’s Office (“AGO”), have engaged in persistent misconduct to cover up and minimize the scope of the scandal. Former Assistant AGs Kris Foster and Anne Kaczmarek committed “fraud on the court” by withholding exculpatory evidence, and misleading the superior court into finding — incorrectly — that Farak’s drug use began only in 2012, rather than all the way back in 2004. Moreover, the AGO itself consistently failed to investigate the scope of this misconduct, failed to correct false statements made to the courts, and failed to notify the defendants affected by the scandal.

To address and rectify this massive degree of prosecutorial misconduct, the ACLU and a group of public defenders filed a petition with the Massachusetts Supreme Judicial Court (“SJC”), asking the SJC to dismiss the convictions of all defendants whose samples were processed by Farak’s lab, and also to issue standing orders designed to prevent similar misconduct in the future, and grant issue monetary sanctions against the AGO. The Cato Institute, along with the NYU Center on the Administration of Criminal Law, has filed an amicus brief in support of this petition.

Prosecutorial misconduct — especially the unlawful withholding of exculpatory evidence from the defense — is rampant across the country, yet prosecutors themselves are hardly ever held accountable. Internal discipline does little to nothing, criminal prosecutions are incredibly rare, and — thanks to the Supreme Court’s invention of the doctrine of absolute immunity — prosecutors can never be held civilly liable, even for the most egregious, willful misconduct. This is all the more troubling because prosecutors wield enormous power in our criminal justice system, especially given the immense leverage they can bring to bear on defendants to coerce them into accepting pleas. In light of this background, it is crucial for the SJC to issue broad relief — in particular, to issue standing orders that compel pre-plea compliance with the disclosure obligations of Brady v. Maryland, and that provide for meaningful discipline and sanctions if prosecutors fail to meet these obligations.

Wall Street Journal columnist Greg Ip, among others, has repeatedly warned that “this year’s tax cut may overheat an economy already near full employment.”   

This equivocal prediction relies on a theory that inflation is caused by combining low unemployment and large structural (cyclically-adjusted) budget deficits. Inflation is assumed to be a national rather than global phenomenon, and its cause is assumed to be fiscal rather than monetary. 

To support this fiscal theory that tax cuts are inflationary, the evidence Greg Ip and others have always turned to is this brief sample from U.S. history, 1965 to 1967:

“In 1966, inflation, which had run below 2% for nearly a decade, suddenly accelerated to over 3%. Some of the circumstances echo the present: unemployment had slid to 4%, taxes had been cut and federal spending for the Vietnam War and Lyndon Johnson’s ‘Great Society’ programs was surging.”

This legendary “guns and butter” explanation suggests inflation “suddenly accelerated” in 1966 largely because “taxes had been cut” thus supposedly pushing budget deficits much higher than prudent at a time of 4% unemployment. The Fed’s reluctance to even keep the fed funds rate barely above the known year-to-year inflation trend is barely mentioned. Treasury dollar exchange rate policy, including slipping ties of coins to silver and of the dollar to gold, is ignored. 

In February 1964, the Kennedy/LBJ tax cut reduced all marginal tax rates by about 30% over two years, with the top rate falling from 91% to 70% by1965 and the lowest rate from 20% to 14%.  Corporate tax rates were also reduced, particularly for small firms.

Contrary to Mr. Ip, the 1964-65 “tax cuts” can’t possibly explain why inflation “suddenly accelerated” in 1966, because tax revenues in 1966-67 were rising rather than falling, and budget deficits were tiny.

As a percentage of GDP, federal revenues rose from 16.4% in 1965 to 16.7% in 1966 and 17.8% of GDP in 1967 (higher than any year from 1956 to 1963). But percentages of GDP understate the real gain, because real GDP was rising so fast.  

Measured in constant 2009 dollars to adjust for inflation (from Table1.3 of the Budget’s Historical Tables), real federal revenues had long been virtually stagnant before the Kennedy tax cuts, rising only 7.5% between 1952 and 1963 –from $657.7 billion in 1952 to $707.1 billion in 1963.  

After tax rates came down, by contrast, real revenues rose by 29% in just four years.  Real revenues rose to $735.6 billion in 1964, $752.5 billion in 1965, $819.8 billion in 1966, $911.9 billion in 1967.  After a brutal 10% surtax was added in June 1968, real revenues initially fell to $904.6 billion (17% of GDP), though revenues briefly surged in the first half of 1969.

The budget deficit in 1966 was a trivial 0.5% of GDP –down from 0.8% in 1963 (before the tax cuts), and still just 1% of GDP in 1967.  To properly judge the alleged “fiscal stimulus” theory, however, we need to adjust deficits for the state of the economy by removing “automatic stabilizers” that enlarge deficits in recessions: Revenues naturally fall with falling payrolls and profits, while unemployment and other means-tested benefits rise.

The Graph compares Congressional Budget Office cyclically-adjusted budget deficits with changes in consumer price inflation.  Just as there is no evidence that large cyclically-adjusted budget deficits stimulate “overheating” of nominal GDP (as endless Japanese experiments attest), there is likewise no evidence that larger cyclically-adjusted deficits cause (or are even loosely associated with) higher inflation.

In fact, cyclically-adjusted deficits were largest when inflation was low and/or falling in 1983-86 and 2009-14.  And such deficits were small during the big inflations of 1973-75 and 1979-81.  Cyclically adjusted deficit were near zero in 1966-67 when an uptick in (global) inflation was supposedly caused by tax cuts and “guns and butter” spending. Contrary to the theory, cyclically-adjusted budget surpluses in 1998-2000 were not associated slow growth of real GDP or falling inflation.

Cutting tax rates by 30% in 1964-65 did indeed result in faster growth of real GDP, but that also produced rapid growth of real tax receipts.  No measure of budget deficits grew larger because of those misnamed tax cuts, and deficits were insignificant until 1968.  There was no “fiscal stimulus” (as Keynesians define it) from the Kennedy tax cuts.  The deficit reached a modest 2.8% of GDP only after the 1968 surtax, but nothing in1968 explains why CPI inflation “suddenly” touched 3% in 1966.

In short, efforts to blame creeping global inflation in the late 1960s on U.S. budget deficits, much less on lower tax rates that actually brought in a huge revenue windfall, is inconsistent with any relevant facts.

With “Red for Ed” walkouts continuing in Arizona, and ongoing discussion about how well public K-12 schooling has been funded nationwide, here’s part three of our impromptu series on spending. As promised last week, this post presents the total spending charts for the five states that have been most in the news over funding: Arizona, Colorado, Kentucky, Oklahoma, and West Virginia. Please see the previous posts for discussions of national spending levels and data sources. The data here are total, inflation-adjusted, per-pupil expenditures on public elementary and secondary schools.


Things are looking down in AZ, though with a similar pattern to the nation overall: Spending generally rising before the Great Recession—total expenditures peaked in 07-08 at $11,141—then dropping afterwards. Unlike much of the nation, however, for the entire period total spending in Arizona fell, from $9,837 per pupil to $8,697. And it has a somewhat pronounced spending valley before the recession.

Where were the cuts? While all of the various types of support services saw increases for the overall period—and some saw increases even after the recession—instructional spending, which most people would probably consider the nucleus of what schools do, fell 6 percent for the full period, or $281 per student. The biggest loser was capital outlays, which dropped 58 percent for the period, or by nearly $1,300.


Again we see the pattern of overall spending peaking in 07-08, then falling. We also see a loss from the beginning of the period to the end. But Colorado’s decline is much smaller than in AZ; only $86, or a less-than 1 percent dip.

For the overall period, only two sub-categories of spending saw cuts: capital outlays, which dropped 34 percent, and other support services, which fell about 22 percent. Instructional spending rose by roughly 2 percent and even after the recession fell only 14 percent.


Don’t cry for Kentucky, AZ and CO. The chart for the Bluegrass State is generally one of rising, not falling, spending. Total spending, and all but one subcategory–school administration support services–saw funding increases between the 99-00 and 14-15 school years, and lots of support functions saw increases in the roughly one-third neighborhood. Instructional spending increased nearly 7 percent for the period and capital outlays ballooned by 117 percent. Many areas did see cuts during the recession, but several types of services saw increases even during that period, though of generally small dollar amounts.


Here’s another case of total spending rising during the full period, from $8,310 per student in 99-00 to $9,114 in 14-15, a nearly 10 percent increase. However, instructional spending barely rose at all—just $7. The biggest increase was in capital outlays, which spiked 79 percent, or by $427. The next largest increase proportionally was for other support services, which increased almost 48 percent. After the recession, instructional spending dropped 13 percent, but capital outlays rose 36 percent, and a couple of support services saw upticks.

West Virginia

Here’s another state where expenditures have been markedly on the rise, not falling, with total spending rising roughly 13 percent—or by $1,468—over the full period, and even increasing since the recession, by $487. A lot of that was not in instruction, however, which grew by only about 5 percent for the overall period, and dipped by more than 4 percent after the recession. And note that spending peaked after 07-08, unlike other states, hitting its highest level–$13,296—in 09-10.

As we’ve seen elsewhere, some of the biggest increases in percentage terms were in support services of various types, the largest of these in instructional staff support, which approached doubling. Meanwhile, the state appeared to go on almost a capital outlay hiatus between 03-04 and 13-14.


These five states, while they share unrest over funding in common, look different in various respects, including what kind, when, and how much they have cut or increased spending. In the next post—maybe the last of the series—we’ll look at some possible reasons we see these changes. has released a new study on Medicaid. The piece discusses basic problems with the program, examines the rapid rise in spending, and proposes reforms to reduce costs and improve quality.

Medicaid is a joint federal-state program that funds medical services and long-term care for people with moderate incomes. It is one of the largest and fastest-growing items in the federal budget, at almost $400 billion a year.

State governments administer Medicaid, but most of the funding comes from the federal government. The current funding structure encourages expansion and provides little incentive to control costs. At the same time, the top-down regulatory structure of Medicaid distorts health care markets. The 2010 Affordable Care Act increased Medicaid spending and did not fix the program’s structural flaws.

Policymakers should reverse course and restructure Medicaid to reduce costs. The program should be turned into a block grant, with the federal government providing a fixed amount of aid to each state. That was the successful approach taken for welfare reform in 1996. Fixed grants would encourage states to restrain spending, combat fraud and abuse, and pursue cost-effective health care solutions.

Federal deficits are rising, and health care spending is a major reason why. Reforming Medicaid with a block grant structure would allow federal policymakers to control spending while encouraging health care innovation in the states.

The study is here.

Michael Cannon’s study here is also a good introduction to this costly program.

Demonstrating the capacity to surprise, North Korea’s Kim Jong-un acted like a modern statesman when he ventured into the Republic of Korea for his summit with South Korean President Moon Jae-in. That doesn’t mean Kim and his heavily armed nation are not potentially dangerous. But after watching Kim in action, as Margaret Thatcher said of Mikhail Gorbachev, “we can do business together.”

Reasons for caution are many. After all, Kim’s father had summits with two successive South Korean presidents, but by earlier this year people were talking about the possibility of nuclear war between the U.S. and North Korea. However, despite the danger of excessive expectations, the diplomatic option first advanced by Kim has shifted the peninsula away from military conflict, at least in the short-term.

Which is a major benefit. As I point out in a new study for Cato, war simply is not an option. It wouldn’t be “over there,” as Sen. Lindsey Graham (R-SC) infamously assured us. Americans would be directly involved, even if the North was not capable of striking the U.S. homeland. In any case, if war resulted, the likely death and destruction on the peninsula, with South Korea a major part of the battlefield, and likely beyond, including Japan, would be far too great to justify the risk.

As a result, President Donald Trump should have modest expectations when meeting Kim. The president’s goal should be to set in motion negotiations and actions that will reduce the likelihood of conflict and hopefully, ultimately, lead to full denuclearization.

One of the most important offers he could make to advance the negotiations is to bring home U.S. troops from the peninsula. Although the American presence is viewed as near sacrosanct by many analysts, Defense Secretary Jim Mattis said that withdrawal is one “of the issues we’ll be discuss in in the negotiations with our allies first and, of course, with North Korea.” He rejected having “preconditions or presumptions about how it’s going to go.” In fact, the ROK’s rapid economic growth and democratic evolution long ago made Washington’s conventional security guarantee obsolete.

But even something short of denuclearization could promote stability and peace on the peninsula and throughout the region. Which would be an accomplishment President Trump could rightly celebrate.

My colleague David Bier and I have written a policy brief on the unmanned aerial vehicles (UAVs) flown by Customs and Border Protection (CBP). We argue that CBP’s fleet of Predator B drones are a threat to the privacy of Americans living along the border and an inefficient tool for locating illegal border crossers and illegal drugs. In addition, state and local use of these UAVs mean that American living in the interior are also at risk of being the target of warrantless surveillance.

Predator B drones may have a reputation as highly efficient military tools, but on the homefront they’ve proven inefficient at contributing to border security. For instance, in the last few years CBP’s predator drones have contributed to less than a percent of illegal border crosser apprehensions at a cost of $32,000 per arrest. When it comes to marijuana seizures, the drone fare little better, being responsible for about 3 percent of marijuana seizures in the same time period.

These inefficient UAVs pose a threat to Americans living along the border and in the interior. State and local law enforcement can request CBP drones for assistance. In fact, the first domestic law enforcement use of UAV to assist an arrest was in 2011, when police in North Dakota requested the use of a CBP Predator. Thanks to three Supreme Court cases from the 1980s warrantless aerial surveillance does not run afoul of the 4th Amendment. While some states have passed warrant requirements for UAVs, it’s not clear whether CBP adheres to state warrant requirements when acting on the behest of state and local law enforcement.

David and I finish our paper with a list of recommendations:

  • CBP should not conduct drone surveillance more than five miles from the border. ƒ
  • If CBP does use its drones to support state and local operations, it should ensure that its drone pilots comply with state and local drone legislation, including warrant requirements. ƒ
  • CBP should not seek drones with facial recognition capability, which puts law-abiding Americans’ privacy at increased risk. ƒ
  • At least six months before deploying new surveillance technology, CBP should disclose details about the technology’s capabilities, including information about the type of data to be collected, how long CBP plans to keep the data, when CBP will share the data, and with whom it will share the data. ƒ
  • CBP should study replacing drones with surveillance technology that limits unnecessary data collection on U.S. residents.

Read the full policy brief here.

hab·i·tat ˈhabəˌtat/ noun: The natural environment of an organism, the place that is natural for the life and growth of an organism; the natural home or environment of an animal, plant, or other organism.

Seems straightforward, right? Unless, of course, you’re the U.S. Fish and Wildlife Service (FWS), which in its role administering the Endangered Species Act (ESA) classified land where a species doesn’t live and can’t survive as “critical habitat” that is “essential” to the survival of that species. Yes, FWS redefined basic terms in the English language and designated a parcel of land in Louisiana as critical habitat for the “dusky gopher frog,” despite the parcel’s utter unsuitably for sustaining the frog’s life cycles.

When the Weyerhaeuser company challenged the FWS designation, first the district court and then the U.S. Court of Appeals for the Fifth Circuit applied Chevron—the doctrine whereby courts give hands-off treatment to agencies when they interpret statutes—and deferred to the agency’s rule. This, even though Chevron itself doesn’t allow “arbitrary and capricious” interpretations.

The Supreme Court agreed to hear the case. Cato has now filed a brief supporting the property owner, joined by the New England Legal Foundation. We argue that the FWS interpretation of the ESA is unreasonable and that this aggrandizement of federal power to regulate property goes beyond constitutional limits. The idea that land that is uninhabitable for a species is nevertheless “essential” to its survival is unmoored from even government logic.

Put simply, the FWS effectively rewrote the ESA in a way Congress never authorized—and could not constitutionally permit. Even if one accepts that the ESA fits into Congress’s power to regulate interstate commerce—in which case critical-habitat designation is undoubtedly a necessary part of the scheme—that power has limits. Mere existence of land does not constitute “economic activity” under the Commerce Clause; if it did, all land in the United States would be subject to federal jurisdiction (as is the case in federal enclaves). Likewise, the regulation here doesn’t fit into the Necessary and Proper Clause. It’s not necessary because the land at issue plays no role in the frog’s conservation; it’s not proper because it infringes on state sovereignty over land-use regulation.

As Judge Priscilla Owen nicely summarized in her dissent from the Fifth Circuit’s decision, the practical implications of the flawed ruling are immense: “If the Endangered Species Act permitted the actions taken by the Government in this case, then vast portions of the United States would be designated as ‘critical habitat’ because it is theoretically possible, even if not probable, that land could be modified to sustain the introduction or reintroduction of an endangered species.”

When it hears Weyerhaeuser v. U.S. Fish & Wildlife Service this fall, the Supreme Court should reverse the lower courts’ determination to allow the federal government to control everyone’s backyards for no particular reason.

In his surprise speech today, Israeli Prime Minister Benjamin Netanyahu presented what he described as Iran’s “nuclear files,” promising to show proof that Iran has cheated on the Joint Comprehensive Plan of Action (JCPOA), the 2015 diplomatic agreement better known as the Iranian nuclear deal.

Instead, what he presented was a curious mix of details on the extent of Iran’s nuclear weapons program prior to 2003—all the major components of which were already publicly known and presented by the United States or the International Atomic Energy Agency—with a series of unfounded assertions about Iran wanting to continue with its nuclear program.

The presentation thus appears to have been far more about politics than anything else, with Netanyahu trying to use details of Iran’s past nuclear activity to argue that it cannot be trusted to comply with the JCPOA today. This is particularly ironic given that these details were among the key reasons which led to international sanctions and the eventual negotiation of the deal itself.  

Nonetheless, with President Trump rapidly approaching another key decision point on May 12th, this presentation will only add fuel to the fire. The president is widely expected to refuse to waive sanctions as required under the JCPOA, despite ongoing Iranian compliance with the deal confirmed and certified by the IAEA, the State Department, and members of his own administration.  

This all raises a key question: What comes after May 12th? Assuming the president does refuse to reissue sanctions waivers, the United States will technically be in default of the deal, regardless of whether we formally withdraw or not. And it remains unclear whether the Trump administration has any coherent follow-through plan.

Last fall, John Glaser and I explored this question in a Cato Policy Analysis, “Unforced Error: The Risks of Confrontation with Iran.” We looked past the JCPOA to ask what other policy options—if any—would be an improvement on the deal. Unfortunately, the four options we examined were all problematic: none resolved the nuclear problem, and several were astoundingly costly and dangerous. Nothing has changed to make these options more palatable in the meantime. 

Option #1 is new sanctions, an option that seems even less feasible now than it did last fall. America’s European allies are largely unwilling to join new sanctions, particularly given Donald Trump’s likely role in blowing up the successful nuclear deal.

Option #2 is a regional military effort against Iranian proxies. Is already underway to some extent, as the Trump administration pursues military-focused policies in Syria and elsewhere. It’s risky for US troops and unlikely to be successful. Whether this effort is effective or not, however, it does nothing to curb Iran’s nuclear potential.

Option #3 is regime change “from within,” a favorite of Trump’s new National Security Advisor John Bolton. As we explored in the paper, there are no viable candidates for such support, and again, it does nothing to resolve the nuclear question.

Option #4 is direct military conflict. While the Trump administration doesn’t appear to be considering large-scale military action against Iran, this is still an option, and one with potentially disastrous consequences that should be clear to anyone who has watched the last two decades of American foreign policy.

In the report, we recommend a fifth option: continued engagement and the negotiation of additional agreements to strengthen and support the JCPOA’s existing parameters. This has by far the best likelihood of success. Yet it is this approach that Trump appears likely to discard, and this approach that Netanyahu today begged the President to ditch.

President Trump has only a few weeks left to make one of the most consequential decisions of his presidency. The JCPOA is not perfect. Yet ripping up the deal now based on old grudges will not improve the situation: the alternatives are far worse.

Read our report and see for yourself.

Last week officers with the Sacramento County Sheriff’s Department arrested Joseph James DeAngelo, the suspected Golden State Killer who allegedly committed a dozen murders, at least 50 rapes, and more than 100 burglaries in California between 1976 and 1986. Police made the arrest after uploading DeAngelo’s “discarded DNA” to one of the increasingly popular genealogy websites. Using information from the site, investigators were able to find DeAngelo’s distant relatives, thereby significantly narrowing their list of suspects. This investigatory technique is worth keeping an eye on, not least because millions of people are using DNA-based genealogical sites.

I’m one of them. I’ve signed up to 23andMe as well as MyHeritage, both of which offer DNA analysis. I did this in part because family history is a minor hobby of mine, but also because 23andMe offers interesting medical information. While both companies offer a DNA service, I’ve only used 23andMe’s because MyHeritage allows its users to upload 23andMe data. One of the features of MyHeritage is its “DNA Matching” service, which updates me when a distant relative is found thanks to automated DNA analysis.

This month alone MyHeritage has altered me to the existence of two more 3rd - 5th cousins. This DNA Matching service has identified hundreds of my distant relatives, with varying degrees of confidence. 23andMe has a similar relative-finding feature. MyHeritage and 23andMe, as well as, have all denied working with law enforcement in the Golden State Killer case.

According to The New York Times, investigators sent the suspected Golden State Killer’s DNA to GEDmatch, a free genealogical service. A GEDmatch release stated that it had not been approached by law enforcement and warned customers, “If you are concerned about non-genealogical uses of your DNA, you should not upload your DNA to the database.”

The Times report included this important paragraph:

The detectives in the Golden State Killer case uploaded the suspect’s DNA sample. But they would have had to check a box online certifying that the DNA was their own or belonged to someone for whom they were legal guardians, or that they had “obtained authorization” to upload the sample.

Investigators obviously didn’t have DeAngelo’s authorization. However, it’s unlikely that they were constitutionally required to obtain it. From Technology Review:

[GEDmatch co-creator] Rogers didn’t say whether he thought police had acted legally or not, but he says the rule on his website is that “it’s only with a person’s permission.”

Investigators, of course, didn’t have authorization from DeAngelo to use his DNA. However, it seems likely they would not have needed it. “Under current constitutional law, the government has a tremendous amount of discretion in how to use crime-scene evidence,” says Erin Murphy, a professor of law at New York University. “DNA abandoned by the perpetrator of a crime basically has no legal protection.”

What’s particularly interesting about this case is that it doesn’t involve police identifying a GEDmatch customer as a suspect and then seeking that suspect’s DNA profile as part of an investigation. Rather, investigators used GEDmatch to build a family tree of the suspect based on information GEDmatch customers had volunteered. GEDmatch’s website includes this warning, “DNA and Genealogical research, by its very nature, requires the sharing of information. Because of that, users participating in this site should expect that their information will be shared with other users.”

23andMe and both mention law enforcement in their privacy policies. These policies discuss law enforcement in the context of law enforcement seeking customers’ data. For instance, 23andMe’s policy states (emphasis mine), “Under certain circumstances your information may be subject to disclosure pursuant to judicial or other government subpoenas, warrants, or orders” and’s policy includes the following, “We may share your Personal Information if we believe it is reasonably necessary to […] Comply with valid legal process (e.g., subpoenas, warrants).”

It’s laudable that these private companies have made commitments to protect their customers’ privacy, but the Golden State Killer investigation did not rely on investigators directly accessing GEDmatch customers’ information. Rather, it relied on GEDmatch to do what it’s product is designed to do: find relatives.

Law enforcement use of genealogical sites is a rare investigatory technique. According to a 23andMe spokesperson, the company has only “had a handful of inquiries over the course of 11 years.”’s 2017 transparency report revealed that the company had only received 34 valid law enforcement requests that year, only 19 of which came from American law enforcement agencies. Each one of these 34 requests related to credit card fraud or identity theft.

Although rare, we should prepare for a time when this kind of investigation is widespread. I doubt that any of DeAngelo’s distant relatives will be upset that their genetic information was used to aid an investigation into a serial killer and rapist, but we should consider what law enforcement looks like in a world where “genetic informants” are commonplace. As UC Davis Law Professor Elizabeth Joh told The New Republic, “Do you realize, for example, that when you upload your DNA, you’re potentially becoming a genetic informant on the rest of your family? […] And then if that’s the case, what if you’re the person who didn’t personally upload the DNA, but you discover that your family member has done that?”