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In a Cato study last year, I argued that the U.S. policy of maintaining hundreds of permanent forward-deployed military bases around the world is not only unnecessary, but also actually counterproductive in some ways. Advocates of forward-deployment claim it pacifies the international system by deterring adversaries and reassuring allies, thus ameliorating conflict spirals and staving off interstate wars.

I argued instead that today’s lower rates of interstate conflict are a result of many factors – including defense dominance, economic interdependence, changing norms, etc. – other than forward basing and the security guarantees that underlie them. I further claimed that forward bases can actually undermine peace and stability by incentivizing “reckless driving” by allies and counterbalancing by adversaries. This is a view deeply at odds with the prevailing opinion in the Washington, DC foreign policy establishment.

Yet a new study from the RAND Corporation bears some of my analysis out. RAND researchers developed a statistical model to see how U.S. overseas bases correlated with interstate conflict. Though they find that “on average, U.S. troop presence was associated with…a lower likelihood of interstate war,” they concede their model can’t determine causation and can’t account for the impact that other factors (mentioned above) have had on the reduction of interstate conflict in the post-WWII period.

And while the study suggests there is good evidence for the restraining effect that U.S. bases have on allies (see here for a study suggesting otherwise), it also finds that stationing U.S. troops and bases overseas is “associated with a higher likelihood of low-intensity interstate conflict” and that “a large nearby U.S. troop presence was associated with potential U.S. adversaries initiating more low- and high-intensity conflicts.”

“Adversary states,” according to RAND, “are more likely to initiate a high-intensity MID [militarized interstate dispute] against a target state when the United States maintains a large troop presence in that target state. This suggests that adversaries may be threatened by U.S. forward presence abroad, leading to an increased risk of militarized behavior.”

For example, the authors of the study argue that U.S. basing in the Baltic states may deter Russia from initiating major war against them, “but also may lead to the initiation of more disputes and provocations [short of all-out war] by Russia against the Baltic states.” Similarly, U.S. military presence in and near the South China Sea may play a role in deterring China from outright attacking neighboring states with competing maritime and territorial claims, but also “may lead to the intensification of Chinese militarized activities and provocations toward the partner states that host U.S. forces.” Another example is the Korean Peninsula. “U.S. troop presence has likely deterred North Korean aggression against South Korea,” the RAND study concludes, “but it has potentially done so at the cost of numerous militarized activities and provocations by North Korea during many decades.”

This should not be construed to mean that, in the absence of U.S. bases or security guarantees, Russia would conquer the Baltic states, or China would attack the Philippines, or North Korea would initiate war with South Korea. Each of these adversaries has good reasons - other than the threat of a U.S. response - not to take such action.

Here is the real kicker. Another argument in my own Cato study was that having all these bases and troops permanently stationed abroad has the effect of expanding the scope of perceived U.S. interests, thus increasing U.S. military interventionism abroad. The RAND study concurs:

Some analysts contend that U.S. involvement abroad actually leads to an expansion of U.S. security concerns and issues over which it is willing to use force. Frequent diplomatic interactions can lead to socialization, where the U.S. leaders adopt partners’ local security concerns. Moreover, once the United States makes a commitment to a partner, U.S. policymakers may also begin to see U.S. credibility at stake in any of the partner’s disputes. The United States may, in turn, be more likely to initiate or become involved in militarized conflicts to protect these interests. U.S. forward troop presence may contribute to the expansion of these concerns. U.S. military presence in partner states creates more opportunities for socialization, described above, and further ties U.S. reputation to its partners’ security. Moreover, forward presence may make the United States more sensitive to the capabilities and intentions of nearby states that could pose a physical threat to local U.S. personnel or infrastructure. The need to defend forward deployments and support regional partners may expand the domain of issues in which the United States is willing to use force, thereby increasing the risk that the United States initiates conflict abroad.

That’s an important finding. U.S. military activism has indeed spiked in the post-Cold War era, though we’re not better off for it. If forward-deployment pushes the United States to use military force with greater frequency and in more locations for what would otherwise be peripheral interests, that should be deeply concerning to Americans.

A new federal paid leave idea has been produced, promoted, and endorsed by individuals on the right. And now Republican legislators like Marco Rubio, Joni Ernst, and Mike Lee are getting behind it.

Advocates propose using Social Security as a benefit bank for paid leave – the idea is that parents could withdraw Social Security benefits today if they defer collecting benefits later. Of course, if advocates want to provide paid leave, a better idea is cutting Social Security benefits and payroll taxes so new parents don’t have to ask the government for their money back.

Still, it’s a clever idea and maybe the least-bad proposal for federal paid leave. But that does not mean the Social Security paid family leave (SS PFL) proposal is a good idea on its own merit. As described in The Hill yesterday, government-provided paid leave has harmful consequences and is not politically supported. 

Setting that aside, Social Security is a program with an assortment of problems, and allowing beneficiaries to borrow against future benefits does not improve the current model. Given how integral Social Security is to the current proposal, it’s worth a reminder just how deep those issues run.

First, Social Security will shortly be insolvent. Due to Social Security’s structure and demographic trends which include an increase in life expectancy, a decrease in fertility rates, and slowing wage growth, the value of Social Security’s obligations is estimated to exceed the value of its taxes in present value by $8.6 trillion over the next 75 years. (And no, providing paid parental leave and other parental benefits won’t change fertility trends meaningfully.)

In short, there are increasingly more retirees collecting benefits for every worker paying for them. To illustrate, in 1950 there were 12 people older than 65 for every 100 people of working age. By 2050, there are expected to be 35 people older than 65 for every 100 people of working age.

This makes Social Security unsupportable in its current form. The program is already running a cashflow deficit and in trouble financially. Indeed, the Social Security Administration (SSA) projects the present-value of Social Security’s unfunded financial obligation is equal to $32.1 trillion through the infinite time horizon. 

How will adding SS PFL change that? AEI’s Andrew Biggs says that in the long-run the SS PFL proposal is budget neutral. But in the short-run, the proposal increases Social Security’s financial obligations, thereby hastening Social Security’s decline toward insolvency. It would be one thing if Social Security was based on personal savings accounts and the proposal allowed people access to their savings more flexibly. But Social Security has no pool of savings, so the proposal means going deeper into debt to provide parental benefits. 

The most generous argument is that the SS PFL proposal does everyone a favor, because it forces lawmakers to grapple with Social Security’s problems sooner than they would otherwise. What will that reform look like? If historical precedent is any indication, it will involve increasing taxes and perhaps reducing benefits.

Social Security taxes have already grown substantially over Social Security’s lifetime: from a payroll tax of 2 percent at its inception in 1937 to a tax of 12.4 percent today. Indeed, during Social Security’s most recent reform in 1983, taxes were raised in a variety of ways. Recent proposals for reforming Social Security have also suggested expanding taxes to pay for the program.

Of course, benefits have also been reduced in past reforms. But with more obligations to more interest groups (parents, the sick, etc.) under a new version of the program, it will be increasingly difficult to reduce benefits because more groups will be impacted by cuts. 

It seems that an underlying premise of the SS PFL proposal is that nothing major can be done to reform Social Security in the short-term anyway, so let’s enjoy the ride down. Another underlying premise is that Democrats will eventually get their way on paid leave, so let’s preempt it and give them what they want.

Unfortunately for advocates, the current proposal is not what Democrats want, and it’s unlikely they’ll be satisfied. The SS PFL proposal conveniently leaves the door wide open to provision of more generous benefits in the future.

In the meantime, Republicans will have conceded substantial ground, hastened Social Security’s decline, and legitimized the provision of paid parental leave at the federal level.  If history is any indication, more taxes will be part of the solution.


President Trump wants to cut legal immigration by more than 40 percent, complaining that the system focuses on family reunification rather than skills. In defending the plan, Attorney General Jeff Sessions generalized today’s immigrants as largely “illiterate”, with “no skills”, and argued that America “should be like Canada” on immigration, evaluating them on their skills. Yet, recent U.S. immigrants are better educated the U.S.-born, and differ little from recent Canadian immigrants.

Figure 1 provides the educational attainment distribution for U.S.-born working-age adults (25-64) compared to recent U.S. working-age immigrants (arrival from 2012 to 2016). As it shows, nearly half of all recent working-age immigrants had a college degree or higher, compared to just 32 percent of the U.S.-born working-age population. Recent immigrant workers to America are 50 percent more likely to have graduated college than U.S.-born workers. Moreover, among college graduates they are much more likely to have advanced degrees.

Figure 1: U.S.-Born Citizens and Recent Immigrants to the United States by Education, Ages 25-64*

Sources: American Community Survey, 2016 5-Year Sample *Including all adults over 25 reduces recent immigrant share of bachelor’s degrees to 47 percent and U.S.-born share to 30 percent

Figure 2 provides the educational attainment distribution for recent working-age immigrants to the United States compared to recent working-age immigrants to Canada (arrival from 2012 to 2016). As it shows, recent working-age Canadian and U.S. immigrants have very similar educational profiles, with an almost equal ratio of college graduates to non-graduates. U.S. recent immigrants with a college degree are a bit more likely to have an advanced degree.

Figure 2: Recent Immigrants to the United States and Canada by Education, Ages 25-64

Sources: American Community Survey, 2016 5-Year Sample; Statistics Canada

Canada’s overall immigrant population is slightly better educated than the United States’. Figure 3 provides the educational attainment distribution for all working-age immigrants to the United States compared to all working-age immigrants to Canada. Even looking at the entire population, however, the U.S. immigrant population ends up looking very similar to the U.S.-born population, with only minor differences in educational attainment.  

Figure 3: Recent Immigrants to the United States and Canada by Education, Ages 25-64

Sources: American Community Survey, 2016 5-Year Sample; Statistics Canada

These figures modestly understate the degree to which the U.S. legal system results in the immigration of educated workers because nearly a quarter of all U.S. immigrants are illegal, and illegal immigrants are less educated than other immigrants. Canada has relatively fewer illegal immigrants.

More important than the shares of the flow is the absolute quantity of the flow to each country. While Canada has a similar share of less educated immigrants, it allows far more of them to immigrate, relative to its population, because its immigration rate is so much higher than the U.S. rate. In other words, the United States is far less welcoming overall to less educated immigrants than our northern neighbor.

The claim that U.S. legal immigration policy is highly skewed toward “illiterates” who lack skills to succeed in America has no validity. In fact, even family-sponsored immigrants and diversity lottery winners are better educated than the U.S.-born. In any case, less educated immigrants bring skills and contribute in important ways to the United States, and they are successful on all standard measures. But ultimately, reforming immigration policies should start with the facts about the immigrants that we already have, not myths and conjecture.

Historian Harold James of Princeton University, known for his scholarly writings on the gold exchange standard and on the euro, has turned his attention to Bitcoin in a recent Project Syndicate commentary on “The Bitcoin Threat.” His commentary labors under a surprising number of misconceptions about Bitcoin and the history of privately issued currency. If even a reputable academic historian falls prey to these misconceptions, they are likely to be widespread. Scrutinizing them may then be of wider interest.

After noting some of the optimistic claims made on behalf of cryptocurrencies and the blockchain technology underlying them, James cautions us:

But others are rightly suspicious that this new technology might be manipulated or abused. Money is part of the social fabric. For most of the history of human civilization, it has provided a basis for trust between people and governments, and between individuals through exchange. It has almost always been an expression of sovereignty as well, and private currencies have been very rare.

To say that government-issued currencies have “provided a basis for trust,” and to imply private currencies have not, is a curious summary of centuries of monetary history. Anyone familiar with the long history of debasements by ancient and medieval government mints, or with the history of fiat money inflations by modern government central banks, knows that governments have often been untrustworthy issuers. Sovereigns have frequently abused rather than rewarded trust in their currencies. (To his credit, James does later observe that “bad states produce bad money.”) Indeed a key service that attracted medieval merchants to private bankers was their more trustworthy payment alternative to the variously debased government-issued coins, namely a ledger-based system where transferable account balances were denominated in units of unchanging silver content. Historians later called these stable private accounting units “ghost monies” because they were not embodied in any of the debased contemporary coins.

James’ statement that “private currencies have been very rare” is simply untrue. It is a surprising misconception for a financial historian to hold. Private silver and gold coins were historically rare, it is true, because governments have legally suppressed private mints to give their own mints monopoly privileges. But during the 18th and 19th centuries, redeemable paper currency became more popular than coins in modern economies, and the majority of paper currency in circulation in most countries consisted of privately issued banknotes. Kurt Schuler and Will McBride report that more than sixty countries have had periods of competitive private note-issue, so it was hardly a “very rare” experience.

Banknotes are a banking product, and banking is normally a private business, so it should not be surprising that the very first known banknotes were introduced by businesses and not by a government. Schuler and McBride write that “the first true circulating notes were issued” around the year 995 “by private bankers in the city of Chengdu” in China. Similarly, “In Europe, the first true circulating notes were issued in 1661 by Stockholms Banco, a private bank chartered by the crown.”

In the United States before the Civil War, the vast majority of paper currency was issued by private state-chartered banks. The only governmental or quasi-governmental notes were those issued by the short-lived first and second Banks of the United States (whose shares were 80% in private hands) and by state-government-owned commercial banks in a few frontier states. After the Civil War, private banks with federal charters (the “National Banks”) continued to issue notes into the 1930s. In the United Kingdom, all banknote issuers including the Bank of England were private before the First World War. Even if we were to consider the BOE “non-private” after it gained special privileges in the Bank Charter Act of 1844, other private banking companies issued 43 percent of the notes in circulation in 1851, to pick a mid-century year. Canada’s banknotes were entirely private before the provinces (later The Dominion) began issuing small notes in 1866, and there private banknotes continued in circulation until the 1940s.

When it comes to the operations of Bitcoin, James exhibits additional misconceptions. He comments that “Bitcoin looks like a twenty-first-century version of gold, and its creators have even embraced that analogy.” I discussed here recently what the Bitcoin system has in common with a gold standard, and how it differs in important ways. James’ statement that Bitcoin’s “creators have even embraced that analogy” seems to refer to the term “mining” being used metaphorically to refer to the operation of Bitcoin validation nodes. But in writing that Bitcoin “is produced — or ‘mined’ — through effort,” James appears to have been misled by the term. Bitcoin “mining” validates payments. Unlike gold mining, growth in the number of computers “mining” bitcoin does not increase the rate at which the total stock of bitcoin grows. It only adds more competition to be the mining node that receives the reward in new coins for processing the next transaction block (by being first to solve a mathematical guessing problem, the difficulty of which is endogenously adjusted to keep the expected solution time at ten minutes). New coins are awarded at a rate that is predetermined by the source code. Thus, a new miner who adds a computer to the system “produces” expected new bitcoins for himself, but not for the system as a whole.

The most dramatic of James’ ill-founded claims come in the commentary’s penultimate paragraph — which is hard to read as anything but rather wild fear-mongering:

And yet we have already reached the point where a Bitcoin crash could have serious global implications. Financial institutions’ current exposure to the cryptocurrency is unclear, and probably would not be fully revealed until after a financial disaster. It is eerily reminiscent of 2007 and 2008, when no one really knew where the exposure to subprime-mortgage debt ultimately lay. Until the crash, it was anyone’s guess which institutions might be insolvent.

James cites no evidence of financial institutions’ exposure to cryptocurrencies. Unlike mortgages in 2007, known commercial and investment bank balance sheets indicate no significant holdings of cryptocurrency assets by the institutions. Asked about cryptocurrencies, European Central Bank chief Mario Draghi commented on 5 February 2018 that bank exposure was not evident: “Let me first say that we are not observing a systemically relevant holding of digital currencies by supervised institutions — by banks, in other words.” As he went on to add, banks do not hold them precisely because cryptocurrencies are indeed very risky investments. A Forbes blogger in December, imagining bank losses from cryptos, was to his credit willing to acknowledge: “Of course, this is a doomsday scenario and there’s no evidence that big banks have garnered large positions in Bitcoin or other currencies — yet.”

The only apparent (albeit minuscule) exposure of banks, one mentioned in recent news reports, is via credit-card customers who charge such large cryptocurrency purchases to their cards that a plunge in crypto prices might make them personally bankrupt and force them to default on card payments. No problems from credit-card losses of this kind have yet been reported, however, and the card-issuing banks are fully able to price or quantitatively limit such a risk. Coindesk reports that JPMorgan Chase, Bank of America, Citi, and Capital One are now in fact disallowing cryptocurrency purchases by their credit-card customers. Of course the banks already cap the size of their customers’ credit lines to limit default risk, and charge additional fees when they allow customers to take (limited) cash advances.

A bank that allows its customers to use a debit card or other form of deposit transfer to buy cryptocurrencies, it should be noted, is not extending credit to those customers and is not exposing the bank to any risk of credit losses from crypto price volatility.

In 2007, by contrast, regulators looking at audited balance sheets knew which banks were holding how many billions of dollars in mortgages and mortgage-backed securities (MBS). (Granted, the regulators were unaware ex ante of how risky the mortgages and MBS were.) Total MBS outstanding in 2007 and 2008 were over $9 trillion, by the way. The total volume of cryptocurrencies outstanding today is under $400 billion, less than 1/20th of $9 trillion, and cryptocurrency purchases on outstanding bank card balances must be a very tiny fraction of that. Again, there’s no evidence of banks or investment banks holding crypto positions. So today’s situation is hardly “eerily reminiscent” of 2007-08.

James’ phrase “financial institutions” covers more than banks, of course. And there are a small number of speculative financial institutions buying cryptocurrencies for their customers, namely specialized hedge funds and proprietary trading firms. Pantera Capital offers a leading cryptocurrency investment fund. The CEO of Pantera notes that the crypto market is remarkable for the nearly complete absence of institutional investors: “It’s a half-a-trillion-dollar asset class that nobody owns. … And bitcoin is still so underowned by institutional investors that it trades at its own beat.” At the mid-December BTC price peak, the firm reportedly had about $2 billion under management. Half of that value has been lost, but without any apparent spillover effects. Hedge fund shareholders are high-net-worth individuals who can afford speculative losses to parts of their portfolios. Contrary to James’ fear that “a Bitcoin crash could have serious global implications,” the halving of Bitcoin’s value over the last two months shows no worrisome spillovers to the financial system more generally. It provides no rationale for restricting the public’s right to buy or hold or use cryptocurrencies.

[Cross-posted from]

Imagine that it’s your first day at a new job. As you endure the tedious onboarding process, an interesting tidbit catches your attention; among the perks of your new position, you will be issued a company car and cell phone. “Sweet!” you exclaim, now more confident than ever of having made the right career move. But your enthusiasm drops precipitously as you learn that GPS devices have been installed on both the car and phone, allowing the company to continuously track your location. And your shock turns to horror when you are informed that the (mandatory) use of these items requires that you consent to the police having unfettered access to the resulting information, thus waiving your Fourth Amendment rights. While commenting on what a huge mistake accepting the position was on your way out the door, HR drops perhaps the biggest bombshell of all: “Sorry you feel that way, but it’s the city’s rule, not ours, and every other company in the field has the exact same rules… so good luck finding another job!”

Incredibly, such a dystopian scenario could become commonplace if the City of Chicago has its way.

LMP Services is a company owned by Laura Pekarik, who has operated the “Cupcakes for Courage” food truck since 2011. About a year after starting her business, Chicago passed ordinances requiring food trucks to install GPS trackers and to refrain from operating within 200 feet of established restaurants. LMP then sued to prevent enforcement of these laws—and is capably represented by our friends at the Institute for Justice.

While this case ostensibly involves food trucks in Chicago, if the Fourth Amendment fails to protect against laws like these, then there is very little to prevent cities and states across the country from extending similar regulations to virtually any other disfavored economic activity. In erroneously ruling that these requirements don’t involve an unreasonable search and don’t intrude on any liberty interests, the Illinois Appellate Court employed two lines of reasoning.

First, the court found that there was no Fourth Amendment “search” because there was no physical intrusion by the government. But this ignores the well-established rule that compelling a private party to carry out the equivalent of a search rather than conducting the search itself does not allow the government to avoid constitutional scrutiny. That’s precisely the situation here, as Chicago tried to shirk constitutional limitations by forcing food-truck owners to install the tracking devices and then having the information sent to a private company rather than to the government itself.

Second, the court found that there was no search because being allowed to operate a food truck is subject to a revocable license. Because the government isn’t required to issue such licenses, it’s supposedly free to condition issuance on the vendor’s consent to the placement of the GPS device. But under this rationale, what’s to prevent a state from conditioning (for example) a commercial driver’s license on drivers’ consenting to random police searches? While anyone with even a passing familiarity with the Fourth Amendment would find this absurd, there is no principled basis for preventing such measures under the court’s reasoning.

One might logically ask why on earth Chicago would have enacted these restrictions in the first place. The most plausible answer comes when examining the other ordinance at issue—the “200-foot rule” that prevents food trucks from operating close to other businesses that prepare and sell food to the public. As even the city’s representatives have admitted, this is a purely protectionist measure designed to shield brick-and-mortar restaurants from competition. The Appellate Court didn’t merely turn a blind eye toward such favoritism; it specifically endorsed it by finding that favoring one class of merchants over another was justified by the city’s need to “strike a balance” between higher-tax-paying restaurants and lower-tax-paying food trucks. Needless to say, conditioning a party’s rights on the amount of taxes it pays is a dangerous precedent indeed.

Finally, these protectionist measures have achieved predictable results, with the already-low total of 120-130 licensed food trucks in 2012 dropping to only 70 as of last year. That’s not exactly a win for hungry consumers who want reasonably priced snacks!

Because these measures are detrimental to Chicago’s consumers and entrepreneurs—and indeed all residents’ constitutional rights—Cato has joined the Illinois Food Truck Owners Association and National Food Truck Association on an amicus brief supporting LMP Services’ appeal of the Appellate Court’s erroneous judgment. The Illinois Supreme Court should hear this case and rule that overtly advantaging market competitors and forcing merchants to forego Fourth Amendment protections cannot be countenanced as just another cost of doing business. Instead, this is a disgraceful abuse of power that’s repugnant to a free and open society.

Perhaps most importantly, when you think of all the great culinary delicacies that Chicago is known for – regardless whether deep-dish pizza is pizza, it’s delicious – it would be a crying shame to deprive the city of food trucks.

The Trump administration’s 2019 budget would eliminate funding for the Manufacturing Extension Partnership (MEP) run by the Department of Commerce. The Wall Street Journal reported on the proposal the other day, although the article read more like an oped by program supporters.

The MEP shells out $140 million a year of taxpayer money to more than 50 offices around the country that aid local businesses. Tad DeHaven and I discuss some of problems with the MEP here.

One problem is that such corporate welfare necessarily favors some businesses over others. Companies receiving MEP aid are given an unfair edge over competitors. The MEP’s annual report does not actually say which particular companies have been aided. Instead, it is full of dynamic-sounding language such as “technology acceleration,” “learning organization,” “high-performance system,” “technology-centric operations,” “cultivate enduring collaborations,” and “actionable items for implementation.”

The MEP suffers from the usual waste and abuse of federal subsidy programs. In one classic case, the MEP charged taxpayers $1.1 million for a big party (I mean “conference”) at a resort in Orlando, with free food, booze, live music, and a trip to Disney World.

In another taxpayer rip off, the South Carolina director of an MEP-funded group (p. 29) submitted fraudulent documentation for $336,000 of expenses, including “contracts and payments to shell corporations that were controlled by friends, family members, and him/herself for work that was not completed.” She was sentenced to 27 months in jail, and then was charged with trying to cover up a further $1 million in dubious MEP charges.

My assistant, Dave Kemp says, “What do you expect, it’s the government?” True, but the fact that such handout programs are routinely abused is a good reason to terminate them.

If we eliminated the MEP’s handouts, we could also eliminate the MEP bureaucracy. The agency has about 100 employees making an average $160,000 a year in wages and benefits, according to the federal budget.

To its credit, the Trump administration has proposed various cuts to corporate welfare, and it has reduced tax and regulatory burdens on businesses. Unfortunately, the administration’s protectionist trade actions are a form of corporate welfare that undermine the benefits of its pro-growth policies.

The MEP’s 2016 annual report leads off with a paean to Alexander Hamilton’s 1791 Report on Manufacturers, which was a call for economic central planning. Fortunately, the Jeffersonian free-enterprise view mainly held sway in subsequent decades, and American industry rose to greatness not because of Hamilton/MEP-style subsidies, but because of the sacrifices and struggles of generations of bold entrepreneurs.

After a third consecutive day of attacks, the Syrian government has killed over 250 people in Eastern Ghouta, a region near Damascus. The Syrian Observatory for Human Rights stated that the death toll included 58 children and 42 women, and will most likely rise as the attacks continue.

The Assad regime, backed by Russia, claims that the attacks, which include air strikes and barrel bombs, are necessary to rid Eastern Ghouta of terrorists. Eastern Ghouta is the last rebel stronghold and home to both Jaysh al-Islam, a Syrian opposition militia that routinely attacks the Assad regime, Islamic State, and selective Kurdish forces, and the al Qaeda affiliate Hay’at Tahrir al-Sham, which aims to overthrown the Assad regime and replace it with the Islamic Emirate of Syria. Meanwhile, Turkish forces attacked a pro-Syrian government force yesterday in the Afrin district, another contested zone in northern Syria, in order to halt reinforcements to the Kurdish YPG militia.

The Syrian civil war has entered a new, more violent and dangerous phase. Who will come out on top when/if the violence ebbs? It will most likely be the Assad regime because: 1) the regime has strong sponsors in the form of Russia and Iran, and 2) the international community has no coherent practical response to the ongoing violence.

Russia intervened in the Syrian civil war early on in an attempt to protect its key naval base at the Tartus Port in Syria. Last year, Russia signed into law an agreement it made with the Syrian government that would allow nuclear-powered Russian warships to dock at the port. In order to accommodate these large ships, Russia has expanded its port activities and brought in weapons, ammunition, and other materials to secure its activities without any regulation or oversight by the Syrian government.

Iran has vested interests in the Assad regime and has provided weapons and ammunition, arms, oil transfers, lines of credit, and military advisors (and ground forces—though Iran denies this). Iran’s relationship with the Assad regime is connected to their joint sponsorship of Hezbollah, a terrorist group that now functions as a political party in Lebanon—and which Israel considers a grave threat. Iran’s alleged goals for regional primacy, therefore, are somewhat dependent on the Assad regime’s stability.

Over the course of the Syrian civil war, other stakeholders have emerged that include the Gulf states, the United States, and Turkey. While the Gulf States (mostly Saudi Arabia) are primarily concerned with what they view as Iran’s quest for regional dominance, the United States has been more concerned with the spread of ISIS. U.S. forces have been successful in preventing the further spread of ISIS into Syria with the help of Kurdish militia groups. As these groups continue to receive U.S. support, U.S.–Turkey relations are experiencing a low point as Turkey defends its campaign against the Kurds.  

This hodgepodge of strategic interests and short-term goals has paralyzed the international community. Each attack on Syrian civilians results in empty rhetoric from leaders unwilling or unable to do anything to improve their lot. On occasion, diplomacy has been used to reduce violence. For example, Eastern Ghouta is technically a part of the “de-escalation zones” that were established under a diplomatic ceasefire initiative between Russia, Iran, and Turkey. But because of Hay’at Tahrir al-Sham’s presence (which is minor at best), whose affiliation with al Qaeda did not make it part of the diplomatic deal, Eastern Ghouta has become fair game for Syrian government attacks again.

The ongoing Ghouta attacks indicate that the Assad regime remains strong. The international community’s inability to halt chemical attacks, ensure availability and access to humanitarian aid to those injured on the ground, and convince the Assad regime and its allies to seek a political settlement over a pure military victory all point to how the world has failed the Syrian people. As the Syrian civil war spirals out of control, each stakeholder is more concerned with safeguarding its own strategic interests rather than finding a feasible solution to end the violence. In the meantime, Syrian civilians will continue to pay the price of this war.

In sports—including the current Winter Olympics in South Korea—the concept of the “home field advantage” is pervasive. But in government, separating powers among three branches is supposed to protect individual liberties when the government pursues someone for an alleged legal infraction.

Well, Raymond Lucia felt that the Securities and Exchange Commission had such an advantage when he was fined $300,000 and barred from working as an investment adviser after an SEC administrator determined that he had misled prospective clients in a quasi-judicial proceeding that the SEC investigated, prosecuted, and adjudicated without any appreciable oversight.

Lucia fought the SEC, because the agency’s administrative law judges (ALJs) are, in fact, “officers” of the SEC and not mere employees, meaning that under the Constitution’s Appointments Clause, they should have been appointed by and be accountable to the president or a department head. As the Supreme Court held in a similar challenge to the Public Company Accounting Oversight Board in 2010, “if any power whatsoever is in its nature executive, it is the power of appointing, overseeing, and controlling those who execute the laws.” The president has a duty to ensure the law is faithfully executed, and to do so he must be able to remove those officers who fail to uphold their duties.

The U.S. Court of Appeals for the D.C. Circuit deadlocked over the issue of whether ALJs are executive officers and thus subject to the removal power. As it stands, they’re protected from control by the electorate because the president currently lacks the ability to remove ALJs who abuse their powers or otherwise act badly. Cato supported Lucia’s successful petition for Supreme Court review. Now we file on the merits, ahead of oral argument.

The duties of an ALJ are similar to other positions the Court has previously held to be officers, including “special trial judges” and court clerks. If anything, ALJs have more power and discretion than STJs or clerks, and thus it’s critical that they be able to be held accountable.

Both Congress and the SEC have recognized that ALJs are officers. That conclusion borders on the obvious considering how much more closely the ALJ position aligns with historical and legal definitions of an “officer,” despite the fact that the name of the position was changed to include the word “judge.” Indeed, the fact that ALJs play a quasi-judicial role does not change the fact that they aren’t judges in the constitutional sense. After all, the Supreme Court established 90 years ago that presidential accountability still applies to officers with a quasi-judicial function.

The Framers knew how to create an independent judiciary; they successfully did so in Article III of our Constitution. This independence, however, can’t constitutionally be extended to officers in the executive branch, no matter what they call themselves. The ALJ corps is not a junior-varsity team of Article III judges. They are executive officers, period. To effectively extend Article III independence to an Article II officer, regardless of the title attached to the particular positions, would be to create a fourth branch of government (or fifth, or sixth, depending on how one counts various parts of the existing bureaucracy).

The Supreme Court should find ALJs to be “officers of the United States” and thus make them subject to presidential appointment and removal. Oral argument in of Lucia v. SEC hasn’t yet been scheduled, but is expected this April, which would mean a decision by the end of June.

I’ve got the story at Overlawyered

The Equal Employment Opportunity Commission has announced that Mission Hospital in Asheville, N.C. will pay $89,000 for failing to accommodate employees “who declined flu vaccinations based on their religious beliefs.” [EEOC press release] Mission had in fact agreed to exempt employees from the flu shot based on religious objections, but required that they declare their intention ahead of time. And that turned out to be not accommodating enough, since not requiring that extent of advance notice would not in the EEOC’s view have posed an undue hardship on the employer — hence the expensive lesson….

Under the elastic “undue hardship” standard, employers may face much uncertainty as to how much disruption of their business they must put up with in the name of accommodation. The flu-shot example suggests that risks to co-workers, customers, and the general public might sometimes enter the calculus as well — an expensive guessing game at best.

More about obligations of religious accommodation under federal law, including the elastic way they tend to shrink or expand these days based on the ideological uses to which they are put, at the link. Here, however, I’d like to make a different point. Libertarians take a lot of flak because some of our number criticize mandatory government vaccination as an infringement of principles of voluntary association (though many other self-described libertarians do not in fact take this view). But in the case of Mission Hospital – a private, not-for-profit institution – principles of voluntary association lead directly to the view that the hospital should be free to require such measures of its workforce, whether to avoid risks of direct contagion, to set a good example when urging patients to vaccinate, or from other rationales. Yet here the federal government deploys its full force to prevent private and voluntary social mechanisms from being brought to bear to get a potentially high-risk group to undergo vaccination. 

Flu season is not over and this year’s strain has proved particularly deadly, by the way, so please consider protecting your family and loved ones if you have not already. Details here and here

Here’s the great thing about driverless cars: They will need no new infrastructure because the people designing them are making them work with existing infrastructure. All they ask is for cities and states to fill the potholes and do other basic maintenance.

Here’s another great thing about driverless cars: Most congestion results from slow human reflexes, and simulations show that congestion will significantly decline if as few as 5 percent of vehicles on the road are driverless. So, even if you don’t have a driverless car, you will benefit from others being driverless.

So why is Bexar County (San Antonio) Commissioner Kevin Wolff proposing to use federal infrastructure dollars to build new interstate highway lanes open only to driverless cars? On one hand, they don’t need special lanes. On the other hand, separating them from other traffic eliminates the congestion relief benefits they can provide.

Kevin Wolff is the son of Nelson Wolff, San Antonio’s leading streetcar supporter and a long-time proponent of pork barrel in general (among other things, he has a stadium named after him). Kevin opposed the streetcar, but he supported another even more foolish rail-transit proposal.

The state of Texas is planning to add four lanes to relieve congestion on Interstate 35 in San Antonio. All four would be “managed,” meaning tolled to make sure they never get congested. Wolff’s idea is to dedicate two of those lanes to driverless cars, which means two fewer lanes for other people to use.

Kevin says he floated his driverless-lane idea to the Trump Administration, which has proposed to spend $20 billion on “innovative” infrastructure projects. “They told me, ‘This is just the kind of proposal we want to fund,’” he said.

Actually, it is just the kind of proposal they should not fund. It isn’t necessary. It doesn’t relieve congestion and will probably make it worse than having four managed lanes. It doesn’t help restore crumbling infrastructure. It merely adds more infrastructure that won’t have a source of funds to maintain it.

It can be hard to track exactly what is going on with trade negotiations, and when the news reports are actually a big deal. Each round of negotiations generates headlines, but often leads to nothing except for another round of negotiations. But yesterday the 11 governments negotiating the Trans-Pacific Partnership released a revised version of the text of the agreement, which is kind of a big deal, because you never know for sure how much progress governments are making until they show you the final document. Releasing the text indicates that this agreement is definitely going forward, with signing and ratification coming soon. And of most relevance for Americans, it is going forward without the United States, as President Trump withdrew from the agreement soon after he took office.

What’s in this deal? New Zealand has provided a good summary of what it thinks it is getting from the agreement in terms of lower tariffs and other items (and which U.S. businesses won’t be benefitting from). Here are just a few examples:

  • Japan will reduce its 38.5% tariff on beef to 9% over 16 years.
  • Japan’s tariffs on offal and processed meats will be eliminated over 11–13 years with a 50% reduction at entry into force. 
  • Tariffs on most cheese types will be eliminated in Japan over 16 years.
  • Malaysia will eliminate liquid milk tariffs over 16 years. 
  • All tariffs on apples would be eliminated within 11 years.

That’s all very good news for the countries who are part of the agreement. But as the United States is no longer part of the agreement, there are no direct benefits to Americans. It’s also worth noting that the revisions to the TPP which occurred after the United States withdrew, and which provided the basis for the other countries to go ahead, were suspensions of provisions that the United States had wanted in there.

Of course, the United States could negotiate its own trade agreements with these same countries. But that hasn’t happened. Back in November, I asked: “We are now nine months into the Trump administration, and it’s reasonable to ask: where are all the new trade deals that were promised?” Now we are more than a year into the Trump administration, and the falling behind on trade just keeps falling further.

Last week Robert S. Mueller III, the special counsel, indicted 13 Russians for intervening in the 2016 United States election. Two of the charges  - buying political advertisements and mandatory disclosure - bear on free speech.

Much of the indictment documents activities during the election that would be both normal and protected by the Constitution if undertaken by American citizens. The defendants bought political advertisements, staged political rallies, and even “posted derogatory information about a number of candidates,” Hillary Clinton in particular. Lacking all scruples, they are said to have “solicited and compensated real U.S. persons to promote or disparage candidates” which means paying an actress to impersonate Hillary Clinton in jail. The defendants tried to create “political intensity through supporting radical groups, users dissatisfied with [the] social and economic situation and oppositional social movements.” Overall the Russians hoped “to sow discord in the U.S. political system.”

As it happens, all this activity may be illegal because the Russian government supported these activities. The Federal Election Commission concisely explains regulation 110.20: , “The Federal Election Campaign Act (FECA) prohibits any foreign national from contributing, donating or spending funds in connection with any federal, state, or local election in the United States, either directly or indirectly.”  The Commission notes that this ban “was first enacted in 1966 as part of the amendments to the Foreign Agents Registration Act (FARA), an “internal security” statute.  The goal of the FARA was to minimize foreign intervention in U.S. elections by establishing a series of limitations on foreign nationals.” FARA also required agents of foreign principals to register with the federal government presumably, as the indictment says, so “the people of the United States are informed of the source of information and the identity of persons attempting to influence U.S. public opinion, policy, and law.” (It should also be noted that the defendants are charged with several counts of fraud and identity theft).

These two parts of the law establish different rules for different audiences. Voters in an election are prohibited from hearing speech funded by a foreign power. Arguably, they are prevented from hearing any speech by an employee of a foreign government; such speech would  involve indirect spending on an election. Other listeners, unnamed in the law, need not be prevented from hearing speech of foreigners “attempting to influence U.S. public opinion, policy, and law.” The public, apart from electoral appeals, and public officials, including above all members of Congress, may hear foreign speech assuming disclosure of its source. Voters, however, should be, and are protected from such speech.

The law seems informed by the following assumptions. Public officials need to hear foreign views, especially about international affairs. They have the ability to sort out the false from the true if they know who is behind the arguments. In contrast, voters might be moved by foreign speech to the detriment of the nation. Hence, voters must be prevented from hearing such speech even if its source is disclosed. To put it mildly, this distinction between officialdom and voters is contrary to the foundations of freedom of speech. If voters lack this basic capacity of citizenship, why protect speech through the First Amendment? The distinction seems paternalistic.

There’s little evidence that the Russian efforts had much effect on the voters in 2016. The New York Times indicates that the Russians may have persuaded a few people to show up at a small anti-Muslim rally in Texas. Speculation about others effects does abound, as the Times article shows. However, as Brendan Nyham indicates, political science research shows how hard it is to change votes even with significant spending. The Russian effort was a miniscule portion of overall spending in 2016.

The law is the law, and the indictment made a good enough case against the defendants that at least 12 grand jury members endorsed the charges. But the indictment comes at a difficult time for free speech. Facebook and other tech giants have been put on the defensive in DC. For some, only foreign malevolence could propel a man like Donald Trump to the White House. Fears about national security can foster public actions that otherwise would be rejected.  This might be one of those moments when something must be done and the “something” that is selected does real harm to freedom of speech. That outcome could easily be worse than whatever threat the Russians pose to American democracy.  

New York Attorney General Eric Schneiderman demands out-of-state charities disclose all donors for his inspection. He does not demand this of all charities, only those he decides warrant his special scrutiny. Schneiderman garnered national attention for his campaign to use the powers of his office to harass companies and organizations who do not endorse his preferred policies regarding climate change. Now, it seems he seeks to do the same to right-of-center organizations that might displease him. Our colleague Walter Olson has cataloged Schneiderman’s many misbehaviors.

He’s currently set his sights on Citizens United, a Virginia non-profit that produces conservative documentaries. While Citizens United has solicited donations in New York for decades without any problem, Schneiderman now demands that they name names, telling him who has chosen to support the group. Citizens United challenged this demand in court, arguing that to disclose this information would risk subjecting their supporters to harassment and intimidation.

These fears are not mere hyperbole. If the name Citizens United rings a bell, it’s because the organization, and the Supreme Court case of the same name, has become the Emmanuel Goldstein of the American left, complete with Democratic senators leading a ritualistic two minutes hate on the Senate floor. In 2010, the Supreme Court upheld its right to distribute Hillary: The Movie, and ever since “Citizens United” has been a synecdoche for what Democrats consider to be the corporate control of America. Is it unwarranted to think that their donors might be subjected to the sort of targeted harassment suffered by lawful gun owners, or that Schneiderman might “accidentally” release the full donor list to the public, as Obama’s IRS did with the confidential filings of gay marriage opponents?

The Supreme Court has long recognized the dangers inherent in applying the power of the state against the right of private association. The cornerstone here is 1958’s NAACP v Alabama. For reasons that hardly need be pointed out, the NAACP did not trust the state of Alabama, in the 1950s, to be good stewards of its membership lists. “Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs,” wrote Justice John Marshall Harlan II, who went as far as to compare such demands to a “requirement that adherents of particular religious faiths or political parties wear identifying arm-bands.” More recently, Justice Alito pointed out in a similar context that while there are undoubted purposes served by reasonable, limited disclosure requirements, the First Amendment requires that “speakers must be able to obtain an as-applied exemption without clearing a high evidentiary hurdle” regarding the potential harms of disclosure.

But the Second Circuit Court of Appeals has decided it knows better than the Supremes. On Thursday, it ruled that Citizen United’s challenge should be thrown out without even an opportunity to prove their case. In the process, it effectively turned NAACP into a “Jim Crow” exception to a general rule of unlimited government prerogative to panoptic intrusion into citizen’s political associations. While there can be no doubt that the struggle for civil rights presented a unique danger for its supporters, this should not mean that only such perils warrant First Amendment protection.

The marketplace of ideas is often fraught with contention, and those who support controversial causes must shoulder some risk. As the late Justice Scalia argued, that “running a democracy takes a certain amount of civic courage.” But anonymity in such pursuits serves important purposes, and the premise that concealment of one’s identity is a sign of ill-will would have surprised James Madison, who published numerous defenses of the new constitution, convincing his fellow citizens of the virtue of the endeavor; he signed them “Publius.”

In our schismatic political climate, many people could suffer if their political views were made widely known. This could include everything from adverse employment actions to outright violence. Some groups, such as those in the “antifa,” have openly advocated violence against political opponents. It’s odd that some on the modern left find themselves on the same side as the state of Alabama in 1958: arguing that those who support some political views should be disclosed to the state, even if violence might result. Although an appeal has not yet been filed, the Supreme Court should take the case and reverse the Second Circuit, making it clear that a compelling government interest is required before the government can force the disclosure of people’s political affiliations.   

The Maryland Transit Administration suddenly shut down the Baltimore Metro last week, forcing commuters and other riders to find alternatives with less than 24 hours’ notice. The state said an inspection had found unexpectedly excessive wear on the rails that could have caused a derailment, and it plans to keep the line closed for a month while it fixes the problem – and then to close it again this summer for further work.

The coincidence that the shut-down took place the same day the White House announced its infrastructure plan led the Washington Post to call the metro the latest poster child for the need for more infrastructure spending. In fact, it is a poster child for less infrastructure spending, as it should never have been built in the first place.

 Productivity of United States Metro Systems

Thousands of Trips Per Year

  Trips/mile Trips/station Subsidy/Trip New York Subway 3,211 5,699 $1.64 NY-NJ Path 2,049 6,794 1.60 Boston 1,615 3,231 2.66 Los Angeles 1,349 2,875 7.82 Philadelphia-SEPTA 1,020 1,358 16.05 Washington 852 2,738 1.96 Chicago 900 1,645 4.56 Atlanta 693 1,893 6.08 Oakland 510 3,105 3.48 Miami 368 933 5.18 Baltimore 359 872 6.92 San Juan 322 513 9.17 Staten Island 271 391 2.34 Philadelphia-PATCO 277 819 3.23 Cleveland 168 356 3.11

“Subsidies” equal operations & maintenance divided by fares. Source: 2016 National Transit Database.

As the above table shows, Baltimore’s metro is one of the least-productive and most subsidized heavy-rail lines in the country. It’s even worse when stacked up against metro’s worldwide. Of 158 metros for which data is available, Baltimore’s ranked 150th in trips per station and 152nd in trips per mile.

A 1990 US DOT report found that the first 7.6-mile segment was supposed to cost $800 million to build but actually cost $1.3 billion (about $1.5 and $2.4 billion in today’s dollars). It was supposed to carry 103,000 riders per weekday, but in its early years it only carried about 43,000. Maryland has since extended the line to 17 miles, yet weekday ridership in 2016 was less than 41,000, effectively meaning the extensions attracted no new riders.

To make matters worse, Baltimore bus ridership declined from 106.1 million trips the year the Metro opened to 75.6 million trips in 2016. Since Baltimore light-rail and Metro lines together carried less than 20 million trips in 2016, transit ridership would have done better if the state had put a much smaller amount of money into bus improvements.

Baltimore Metro cars have 76 seats yet carry an average of just 11.5 riders over the course of a day, which is fewer than the 13.5 passengers carried by Maryland Transit buses. Buses also cost less to operate: in 2016, MTA spent $15.73 per vehicle-revenue mile on operations and maintenance for its buses but $17.60 per mile for its Metro railcars.

In other words, buses could have performed the job of the metro for a lot less money. Now that the line is more than 30 years old and worn out, it should be replaced with buses. Instead, they are going to spend millions of dollars making token fixes and let passengers suffer increasing reliability problems.

Naturally, Maryland Governor Larry Hogan blames previous administrations for underfunding maintenance. Yet he has been in office now for more than three years, so he can’t really blame the problems on previous administrations. Why didn’t the transit authority detect the track wear sooner? Why weren’t they able to fix the problem when they were recently single-tracking the line for maintenance work?

One answer is that Hogan and his Department of Transportation have been focused on new projects rather than maintaining old ones. He was the one who decided to build the Purple Line, which will cost more than $2 billion and make congestion worse. He is also pushing for a ridiculously expensive mag-lev line from Baltimore to Washington.

This is what politicians, even supposedly fiscally conservative ones like Hogan, do: go for the glory rather than the mundane. That’s why Trump’s infrastructure plan should, but doesn’t, dedicate funds to maintenance rather than new construction. That’s why infrastructure should be funded out of user fees rather than taxes. Unfortunately, for too many the only lesson of the Baltimore Metro line is that someone else ought to pay more money to keep it running.

Many Puerto Ricans are still without power after Hurricanes Irma and Maria knocked out the island’s electric grid in the Fall. The federal government has poured in resources, but there are still hundreds of thousands of people without power. The sad episode has highlighted the gross failings of Puerto Rico’s government-owned electricity infrastructure. 

Even before the hurricanes, the power grid in Puerto Rico was in bad shape. A 2016 audit of the state-owned Puerto Rico Electric Power Authority (PREPA), found that “transmission and distribution systems are falling apart quite literally: they are cracking, corroding, and collapsing.” The audit found very old and dilapidated assets, and also that the utility has inexperienced staff, terrible record keeping, and a vastly bloated bureaucracy. PREPA has had a poor environmental record, and its power systems have constantly broken down, causing costly forced outages.

Before his resignation in November, the head of PREPA indicated that a “transformation plan” was in progress. But the bankrupt government company has no way to pay for modernization since it is heavily indebted and its finances are a shambles.

The good news is that Puerto Rico’s Governor, Ricardo Rossello, has unveiled a plan to privatize PREPA. Calling the company “a heavy burden on our people, who are now hostage to its poor service and high cost.” PREPA, he said, “does not work and cannot continue to operate like this.”

Rossello’s plan should be good news for Puerto Ricans, who are sick and tired of high-cost and unreliable power. Vast experience around the world since the 1980s shows that privatizing infrastructure, including electric utilities, increases operational efficiencies, improves capital investment, and enhances customer service. Moving PREPA’s assets to the private sector, within an appropriate regulatory framework, should reduce costs and lead to efficient new investment in Puerto Rico’s electric system.

Puerto Rico’s electric utility is not the only one that should be privatized. President Trump’s new budget proposes privatizing the Tennessee Valley Authority and the federal Power Marketing Administrations. Those reforms are long overdue, as privatization of state-owned businesses has swept the world outside of the United States since the Thatcher reforms of the 1980s.

Read more about privatizing the TVA and PMAs here and here, and more about the general benefits of privatization here.

Cato intern Johnathan Postglione helped assemble this post.

A recent New York Times article discusses an exemption for heavy-duty diesel truck emissions standards. First enacted by the Clinton administration, the standards include a provision that exempts truck engines built before 1999. Some entrepreneurs are taking advantage of this provision to circumvent the regulations by installing rebuilt pre-1999 engines in new truck bodies. According to the article, the rebuilt trucks sell for at least 10 percent less than compliant new trucks and also cost less to operate.

The focus of the article is the lobbying directed towards maintaining the exemption, but I want to focus on the real underlying problem: the exemption of existing sources from more stringent emission standards, also called grandfathering. If emissions and degraded ambient air quality have negative effects on morbidity and mortality, then those effects occur regardless of whether the emissions come from “existing” or “new” sources. So there is no public health or scientific rationale for grandfathering. Emissions are emissions regardless of their origin.

Instead, grandfathering eliminates the expense of retrofitting or scrapping existing durable equipment and imposes the cost of compliance gradually. This reduces the explicit cost of compliance and thus limits political opposition to emission control.

The downside of grandfathering is that it incentivizes the retention and operation of old equipment. In the cover story of the spring 2006 issue of Regulation, Shi-Ling Hsu describes the thirty-year struggle over the imposition of emission controls on coal-fired electricity power plants. When the Clean Air Act was amended by Congress in 1977, existing plants were exempted from the pollution control measures that were required of new power plants. Ever since, much ink has been spilled, and large legal fees and campaign and lobbying expenditures have been spent in the struggle over whether emission controls would ever be imposed on such plants because the right to emit without controls is very valuable.

The emissions loophole for trucks is similarly valuable, and old trucks are also exempt from excise taxes on new trucks and other regulations increasing the value of the exemption. 

What should be done about grandfathering? One possibility is emission taxes rather than regulation, but that works only if the politics of tax exemption differ from the politics of regulatory exemption. A second possibility is to set a certain end date to the grandfathering exemption. But that requires the legislature to resist the temptation for a grandfathering extension in return for political support, the subject of the Times article. Experience suggests this temptation is large.

Assuming that limiting emissions is a worthy goal, emission standards or taxes should be applied equally to all sources of emissions. So good public policy would not grandfather, but instead would require Congress to impose explicit costs on all existing emitters or explicit taxes on the rest of us to pay for emission reduction. And that appears to be as difficult as it sounds.

Written with research assistance from David Kemp.

Ballotpedia asked five redistricting buffs to comment on how the Supreme Court might rule on the two gerrymandering cases it is considering, Gill v. Whitford from Wisconsin and Benisek v. Lamone from Maryland. My response

One clue is timing. Rather than fast-track consideration of Benisek v. Lamone, the Court instead set an oral argument date of March 28. That leisurely pace ensures that any decision will come late enough in the term to wreak havoc on this year’s [election] cycle if it announces the imposition at once of a new constitutional standard. Few if any Justices wish to wreak such havoc avoidably. From which I deduce that the Court either 1.) does not expect to announce a new standard, or 2.) expects to do so only in a staged or prospective way that allows states time for compliance or kicks in with the next Census cycle.

While I believe Justice Kennedy remains open to the development of some constitutional standard in this area, I also think he is looking for a fix that is objective and mechanical enough that 1.) it yields the same results from state to state and from Republican-appointed as from Democratic-appointed lower court judges, and 2.) the clarity of what it calls for and how to comply cuts off a need for continual massive litigation and judicial supervision (compare here the success of the one-person, one-vote revolution). Kennedy’s having joined with the conservatives to stay the Gill ruling leaves me thinking that as of then he wasn’t convinced that the “efficiency gap” standard fit that demanding bill.

I’m also pleased to note that my essay on gerrymandering from a libertarian/classical liberal perspective, which appeared originally in Cato Unbound, is featured in the latest Cato Policy Report. You can read it here

Terrible mass shootings like the one at a Parkland, Florida high school are so shocking that it is easy to get the impression that mass shootings are increasingly common.  The number of deaths from mass shootings has been unusually high since 2007, because of five horrific incidents – Las Vegas (58), the Orlando nightclub (49), Virginia Tech (32), Sandy Hook (27), and the Texas First Baptist Church (26).  Statisticians would never try to fabricate a trend from such a small sample, even though the untrained eye may want to.

Last November, however, a Wall Street Journal essay by Ari Schulman claimed,

It isn’t your imagination: Mass shootings are getting deadlier and more frequent. A recent FBI report on “active shooters” from 2000 to 2015 found that the number of incidents more than doubled from the first to the second half of the period. Four of the five deadliest shootings in American history happened in the past five years, and 2017 already far exceeds any previous year for the number of casualties.

That FBI report “identified 160 active shooter incidents that occurred in the United States between 2000 and 2013,” with 486 people killed. The authors literally drew a straight line between just one incident in 2000 (after many in 1999) and 13 incidents in 2013, and called that a “rising trend.”

It is interesting, however, that schools have been the second-highest risk location. The FBI data show that the largest number of active shooting incidents from 2000 to 20016 were in workplaces and other commercial buildings (43%), followed by education facilities (22%), then open spaces (13%), government buildings (11%), residences (5%), health care facilities (3%) and houses of worship (4%).

The cited FBI data from 2000 to 2015 omit the two biggest mass shootings after 2015 and others before 2000.  In addition to Columbine, there were four other mass shootings in 1999, bringing yearly fatalities to 42 fatalities. We can’t be sure which mass shootings were “the worst in American history,” because (1) history didn’t begin with 2000, and (2) Congress didn’t define mass shootings as 3 killed until 2013, and (3) systematic data about such incidents were not collected until 2012.  

Schulman mentioned a longer time series from Mother Jones, but not any data from it, so I created the graph below from the Mother Jones data. This project began in 2012 and attempted to recreate earlier years from news records going back to 1982. Early years report at most one or two incidents per year, which may indicate “headline bias” – finding only those incidents that were sufficiently sensational to attract national news coverage.  

Importantly, the Mother Jones figures define mass shootings as public attacks in which the shooter and victims were generally unknown to each other, and four or more people were killed.  Unlike the FBI’s “active shooting incidents,” where gangs and drugs are frequently involved, Mother Jones excludes all multiple murders related to drugs, gangs or domestic violence. They do include mass shootings by jihadist terrorists, however, which accounted for only 4 of their 98 incidents by my count.

The Mother Jones writers claim that “A recent analysis of this [Mother Jones] database by researchers at Harvard University, further corroborated by a recent FBI study, determined that mass shootings have been on the rise.”  We already questioned the FBI trend.  What about those “researchers at Harvard University”?   Unlike the FBI, who compared the number of incidents between 2000 and 2013 to suggest such a rise, the trio of Harvard and Northeastern University researchers settled for only three years.  

Rather than counting annual changes in a small number of mass shootings as the FBI did, the Harvard-Northeastern team instead counted the average period of time between incidents, and found them more frequent from 2011 to 2013 than the average from 1982 to 2010 (although the journalists’ count before 2012 is doubtful). 

“The rate of mass shootings in the United States has tripled since 2011, according to an [October 15, 2014] analysis [of Mother Jones’ data] by researchers from Harvard School of Public Health and Northeastern University.”  That press release was not from the Department of Criminology, but from a subsection of the School of Public Health, which specializes in thinly-veiled advocacy of tough gun control laws.  “Since 2008,” they note, “we have received funding from the Joyce Foundation to write dozens of scientific articles on firearms issues, to disseminate findings through press releases, and Bulletins.” 

It seems more transparent to simply examine annual estimates from the graph. Adding a preliminary estimate of 17 deaths from Parkland to the Mother Jones list brings the total number of deaths up to 816 from 98 mass shootings between 1982 and early 2018 – or just 23 deaths per year.  That makes this sort of random mass shooting one of the rarest mortality risks imaginable. Falling or the flu are far more dangerous. Even when it comes to guns, 23 deaths a year pales next to the number of homicides by firearms in 2014 alone, which was 11,208 (69% of all homicides)  and the number of suicides by firearms, which was 21,386 (50% of all suicides).

Every time one of these random mass shootings occurs, journalists and legislators invariably seize on the tragedy to lecture about the need for artfully unspecific changes in federal gun control laws. Of all the risks posed by guns or knives, however, random mass shootings are among the least likely.

The Senate is currently debating many competing proposals that would legalize some Dreamers, enhance border security, and reform legal immigration.  This morning, the Department of Homeland Security (DHS) issued a press release criticizing the bipartisan Rounds-Collins proposal that has more support in the Senate than any other amendment.  This DHS press release was accompanied by a veto threat from President Trump.  Most of DHS’ talking points against Rounds-Collins are either hyperbolic, half-truths, or just inaccurate.  Below, I will respond to the three most egregious sections of the DHS press release.


By halting immigration enforcement for all aliens who will arrive before June 2018, it ignores the lessons of 9/11 and significantly increases the risk of crime and terrorism.


There have been nine terrorists who entered the United States illegally since 1975 who went on to plan or commit an attack on U.S. soil.  One of them, Glen Cusford Francis, managed to kill one person in an assassination on U.S. soil.  That’s one successful murder in a terrorist attack over 43 years, committed by one of the roughly 49 million illegal immigrants who entered during that period (most left the United States).  The annual chance of being murdered by an immigrant who entered illegally was about 1 in 11.6 billion per year during that time.

The Rounds-Collins amendment does not increase the threat from immigrant criminals.  Immigrants are already less likely to be criminals relative to native-born Americans.  Furthermore, Rounds-Collins does not limit the ability of law enforcement to track down immigrant criminals or to deport those convicted of a crime.  In fact, it focuses interior immigration enforcement resources on actual criminal and national security threats rather than dissipating them on raids.  Thus, the new enforcement priorities of Rounds-Collins are more likely to reduce the already low threat posed by illegal immigrant criminals and national security threats.         


It eviscerates the authority of DHS to arrest, detain, and remove the vast majority of aliens illegally in the country by attempting to limit DHS enforcement by codifying a “priorities” scheme that ensures that DHS can only remove criminal aliens, national security threats and those who arrive AFTER June 30, 2018 creating a massive surge at the border for the next four months.


This is simply untrue.  The enforcement priority section of Rounds-Collins just forces DHS to prioritize the removal of illegal immigrants who have committed crimes, as well as national security threats, over immigrants whose only offense was violating immigration law – unless they entered after June 30, 2018.  Furthermore, the relevant section of the bill does not prevent DHS from enforcing immigration laws against non-priorities, but it does remove the open-ended discretion.

New priorities for interior enforcement won’t much affect illegal entries across the border.  Southwest border apprehensions are at very low historical levels and a prioritization of interior immigration enforcement toward what the Obama Administration had in place in his second term certainly doesn’t open the border to illegal entries.  Amnesties have not historically increased the flow of illegal immigrants but appear to actually reduce them, for a time at least.  However, more border enforcement tends to lock illegal immigrants inside of the United States who would otherwise have left, boosting the stock but not the flow. 


Note: After publishing this, I learned that the Senate pulled this back to January 2018.  That change weakens DHS’ argument further.


By keeping chain migration intact, the amendment would expand the total legalized population to potentially ten million new legal aliens – simultaneously leading to undercutting the wages of American workers, threatening public safety and undermining national security.


DHS provides no estimate of how this legalization would expand “the total legalized population to potentially ten million.”  Legalized Dreamers wouldn’t be able to legalize their parents under this bill, which is essentially a restatement of current law.  Given the current long backlogs in the family-sponsored immigrant system and that most of the Dreamers legalized come from countries afflicted by those, there’s really no way that 10 million additional legal immigrants would be able to enter through this.  The best recent evidence is that each new immigrant eventually sponsored about 3.5 new immigrants through family reunification.  Because Dreamers’ ability to sponsor family members is limited and the wait times for many of the green card categories are so long, the number will certainly be lower for the legalized Dreamers.  It’s also unclear why that would be an argument against the Rounds-Collins amendment from the perspective of the agency tasked with enforcing it. 

The effect of immigrants on the wages of American workers is small and, if it is negative, is entirely concentrated on high school dropouts.  There are far better ways to help them than reducing economic and wage gains for the 90 percent of the workforce in educational categories positively impacted.  Furthermore, the effect of immigration on the wages of blue-collar workers is slightly positive.  There is not a good economic argument for reducing legal immigration.  It’s unclear why DHS would even be making this argument, since they aren’t supposed to be economic central planners but enforcers of immigration law. 

Legal immigrants entering on green cards from 1975 through 2017 have murdered 16 people in terrorist attacks on U.S. soil.  Assuming all of those green cards were issued in the family reunification categories or through the diveristy visa lottery, the chance of being murdered in a terrorist attack committed by a chain immigrant or a diversity visa recipient was about 1 in 723 million per year.  Even if that annual rate of deaths in terror attacks were to increase 10-fold, it would still not be a serious threat to national security. 

DHS’ open lobbying against Rounds-Collins via press release is extraordinary.  Past secretaries of DHS have certainly testified in favor of other immigration bills, but press releases by administrative agencies taking a clear side in a current debate in the Senate is a new expression of the power of administrative agencies.  DHS is openly lobbying for more resources that would enhance its power and respect.  That’s not a surprise according to what we know about how bureaucracies behave, but it is rare to see it expressed to nakedly in press releases during a Senate debate.

DHS should either not comment on these issues through press releases while the debate is occurring or only do so to make points about the feasibility of enforcement.  At a very minimum, the bureaucracy should not use policy-based talking points that are hyperbolic, half-truths, or inaccurate.   

George Hodgin’s mission seemed simple: manufacture uncontaminated, chemically consistent cannabis for use in scientific research on marijuana’s medical effects, all while complying with federal regulations surrounding the production of a drug still classified by the Drug Enforcement Administration (DEA) as highly dangerous. Despite new rules the DEA promulgated eighteen months ago, with the stated goal of allowing expanded cultivation of marijuana for scientific research, George Hodgin is still in administrative limbo. 

Hodgin, a former Navy SEAL, approached us recently for advice after encountering numerous regulatory roadblocks.  We have no special knowledge or ability in that direction; but perhaps publicizing his endeavors will nudge public opinion (and regulators) in the right direction. 

Expanding research access to high-quality marijuana is important. The Marijuana Policy Project estimates that roughly 2.5 million patients use medical marijuana – just in states with legal medical marijuana programs. This number is likely an underestimate, as it does not account for individuals obtaining marijuana for medical use through non-medical channels. Marijuana’s illegality at the federal level prevents the collection of much needed data that could help drive future research.

Veterans represent a particularly important category of medical marijuana users. Although Veterans Health Administration physicians are prohibited by federal law from recommending medical marijuana, new guidelines issued in December 2017 revise existing standards to encourage doctors and patients to discuss the use of medical marijuana without fear of recrimination. 

A January 2017 report from the National Academies of Sciences, Engineering, and Medicine acknowledges the difficulty researchers face in acquiring appropriate cannabis products and recommends actions be taken to ameliorate the situation; yet, obstacles remain. 

The major difficulty facing those who want to produce or obtain cannabis products for research purposes is that the DEA currently classifies marijuana as a Schedule I drug, which means the DEA views it as having “no currently accepted medical use.” But thirty states and the District of Columbia have laws permitting the medical use of marijuana. Additionally, the research available suggests potentially widespread medical applications for marijuana. 

Legal restrictions on access have severely hampered medical research into marijuana’s possible effects. One solution would be to reschedule marijuana, yet the DEA has repeatedly denied petitions to do so. In a July 2016 denial, the DEA asserted that marijuana has no currently accepted medical use in the United States because, among other reasons, “the scientific evidence is not widely available.”

This will be true, by definition, so long as the DEA makes it virtually impossible to conduct scientific research. Catch 22.

In August 2016, the DEA changed its rules to allow registered entities to supply researchers with the quality and quantity of marijuana needed for scientific study. Despite the rule change, however, the DEA has yet to approve a single application. In testimony given to the Senate Judiciary Committee last October, Attorney General Jeff Sessions confirmed that 26 applications are outstanding from marijuana suppliers; but the DEA has not approved a single one. 

The DEA’s resistance is part of the long-running, tough on drugs approach it has taken since the 1970s. As recently as 2013, courts upheld the DEA’s monopoly on the production of (federally) legal marijuana. The current administration shows no intention of changing this stance. 

In a recent poll, 91 percent of Americans supported the use of medical marijuana. For years, the DEA’s opposition to legalization or rescheduling has hinged on the argument that no scientific evidence suggests medical benefits. Despite hopes that the August 2016 rule change would usher in a new era of research, the past year and a half has proven that inaction remains the status quo. Until something changes, countless sufferers of pain, PTSD, and other ailments will remain trapped in a legal gray zone. Allowing properly vetted companies to manufacture and distribute research grade marijuana legally is the least the DEA can do.

Research assistant Erin Partin contributed to this blogpost.