Cato Op-Eds

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

Last month it was reported that land-use regulations were crushing a new entrepreneurial venture in Oregon: goat yoga. If you aren’t already a yoga devotee and familiar with the pastime, goat yoga involves rolling out your yoga mat at a family farm and then letting baby goats jump on your back while in “downward dog” or “plank” position. And before you start to worry, the practice is allegedly good for both baby goats and humans.

Unfortunately, Oregon’s land-use regulations wouldn’t allow the country’s goat yoga pioneer, Ms. Lainey Morse, to practice activities on agricultural land that didn’t promote the “sale of a [farm] commodity.” In other words, since you don’t buy the baby goats when you’re done with class, local zoning means Ms. Morse and her clients are out of luck.

Although goat yoga may not be high on every Oregonian’s to-do list, land-use regulations do impact citizen lives in more pernicious and less-funny ways.

One of the more ubiquitous ways land-use regulations harm non-yogis is by inflating housing costs. My studies indicate that the relationship between land-use regulations and home prices is highly statistically significant, or unlikely to occur based on random chance alone. In 44 states, new land-use regulation is correlated with increasing home prices.

Existing research supports this view. For example, Harvard Economist Edward Glaeser finds “zoning and other land-use controls play the dominant role in making housing expensive” and a study by Salim Furth found residents of high-cost coastal areas would pay 20 percent less in homeownership costs if they adopted regulation typical of the rest of the country.

But increasing home prices is just one of many unsavory impacts of regulation. Academic evidence indicates that when restrictive regulation is present, racial and economic segregation increase significantly and geographic mobility and economic growth decline. Another issue is that heavy land-use regulations infringe on basic freedom and individual liberty: land-use regulations hamper individual property owner’s ability to use their property in useful ways that don’t impact other property owner’s ability to do the same.

In spite of the relationship between land-use regulations and undesirable outcomes like segregation and housing shortages, the quantity of zoning and land-use regulations continues to grow. In fact, the quantity of annual land-use regulations more than doubled in the United States between 1980 and 2010 alone, as measured by related appellate court cases. Oregon, a state famous for its conservation-minded land-use regulation, added more land-use regulations (adjusted per capita) between the years of 2000 and 2010 than 43 other states.

This helps to explain why Portland’s Mayor Ted Wheeler recently filed an ordinance to extend the “Housing State of Emergency” declared by Portland’s City Council for an additional 18 months. Thanks to Portland’s heavy land-use regulations, like its urban growth boundary, the Portland housing market was under-built by approximately 23,000 units of housing between 2006 and 2015. 

Because current Oregon law requires each city establish urban growth boundaries of their own, housing supply shortages are magnified throughout the state. Not surprisingly, home prices in Oregon continue rising. Zillow forecasts Oregon home prices are likely to climb another 3.7 percent over the coming year.

And although Oregon has made past efforts to scale back development regulation, the total burden of land-use regulation is still heavy and restrictive. As long as it is, regulation will continue to negatively impact Oregonians’ ability to innovate, work, and live affordably—and even to practice goat yoga.

Talk to a Brazilian lately and there is not much reason for him or her to be cheerful—other than the good shape of their national football team. The country is still reeling from the worst economic crisis in a century. On top of that, the entire political class is mired in what has been called “one of the most symbolic corruption cases in history.” The popularity of president Michel Temer, who is personally implicated in the corruption scandal, is in the low single digits.

Yet Brazilians should be proud of the way their legal system is fighting corruption. In fact, the constitutional and policy reforms that Brazil has implemented in the last two decades affecting its judicial system and prosecutorial bodies are an example to other countries, particularly in Latin America, as Geanluca Lorenzon explains in a Cato Policy Analysis published today. Among these reforms is the introduction of plea-bargaining, which has proven crucial in unearthing a vast web of corruption in the Lava Jato scandal. Other changes include giving more autonomy to the federal police and prosecutors, as well as implementing a merit-based selection system to choose judges and prosecutors, allowing individuals with no political connections to reach these positions.

Indeed, if you talk about corruption and abuse of power to people from most Latin American countries, it is very likely that they will express admiration—and a high degree of envy—about the sight of powerful politicians and business people being brought to justice in Brazil.

This is not to say that Brazil is out of the woods. On two occasions, the lower house of Congress voted against sending Temer to trial in the Supreme Court on corruption charges. In another case, the Supreme Court relented on its power to remove a lawmaker implicated in the Lava Jato scandal from office (senator and former presidential candidate Aecio Neves), basically granting Congress the power to shield its member from prosecution. The political class is fighting hard for its privileges.

However, just as institutions have changed in Brazil, attitudes have changed as well. Brazilians show less tolerance towards corruption and abuse of power. The media is more assertive in exposing powerful politicians and business people. And judges and prosecutors are actively prosecuting and sentencing the corrupt. This bodes well for Brazil in the long run. 

Priya Krishna reports at Atlas Obscura on one business struggling with the implications of the Obama-era ban on trans fats that goes into effect next year:

The Berger Cookie has become a fixture of Baltimore culture—a point of pride for residents, and an essential item on lists of top city activities….But here’s the rub: One of the most essential ingredients in the Berger Cookie is trans fats. Trans fats are what make the chocolate super creamy, prevent the fat and the water in the dough from separating (which would yield an overly crumbly cookie), and keep the cookie stable in both very warm and very cold settings.

Cookie producer Charlie DeBaufre, interviewed for the article, “refers to the past year as ‘frustrating and scary,’ as so many of his trans fat-free experiments have been failures. ‘I have spent $10,000 trying to get this worked out. I am not a big business. I don’t have an R&D Department. I have to shut down production for a few hours, still pay people for labor, and then most of the product gets trashed. It’s tough.’”

When I wrote about the ban two years ago in this space, changing popular preferences had already cut trans fat consumption by 85 percent. But while applications like deep-frying have had relatively straightforward substitutes, trans fats are tricky to replace across a variety of more specialized food applications, especially while accommodating individual dietary restrictions. Leading replacements like palm oil may themselves not be particularly healthy and may bring other problems of their own.  

A 2013 Reason-RUPE poll found that by a margin of 71 to 24 percent, consumers favor freedom of choice. Time to get the message to the paternalists in Washington, D.C.: don’t let this be the way the cookie crumbles.

Criminal defense is personal business. A criminal defendant may never face a more momentous occasion than his trial, nor one where his decisions have greater personal consequence. For this reason, the Constitution not only mandates rights for the accused but also secures a defendant’s autonomy in the exercise of those rights: “The Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense.” Faretta v. California, 422 U.S. 806, 819 (1975).

Robert McCoy sought to exercise his autonomy on one of the most fundamental decisions a defendant can possibly make—whether to admit or deny his own guilt before a jury. On trial for his life, McCoy made an informed, intelligent, and timely decision to maintain his innocence and put the state to its burden. But that decision was not respected. Over McCoy’s express objection, the trial court permitted his attorney, Larry English, to tell the jury that McCoy was guilty of murder. With the court’s approval, English even purported to relieve the state of its burden to prove McCoy guilty of murder beyond a reasonable doubt. Following this brazen violation of McCoy’s autonomy, the jury returned a unanimous verdict for first degree murder and sentenced McCoy to death.

The Louisiana Supreme Court upheld McCoy’s conviction, and effectively treated his insistence on deciding for himself whether to admit or deny guilt as a claim for ineffective assistance of counsel. But that framing elides the fundamental interest at issue here. In a capital case with overwhelming evidence, it may be tactically advantageous to admit guilt, with the hope of avoiding the death penalty at the sentencing phase. But the issue is not whether such a strategy is reasonable; it is whether a mentally competent defendant, fully informed of his situation, may decide for himself whether to maintain innocence and demand the state prove his guilt beyond a reasonable doubt.

Once a defendant has chosen to be represented by counsel, his attorney has the power to make many binding decisions of trial strategy. But admitting guilt over a client’s express objection is much more than a mere strategic decision; it strikes at the very purpose of a jury trial—the adjudication of guilt—and eviscerates the defendant’s prerogative to decide upon the objectives of representation by counsel. A criminal justice system built upon the presumption of innocence, with ample procedural protections for the accused to put the state to its burden, becomes a process in which an admission of guilt is forced upon a presumptively innocent defendant without his consent.

Beyond the defendant’s personal interest, failure to respect defendant autonomy damages the criminal justice system as a whole. McCoy’s trial reflected the gross spectacle of a divided defense—where the defendant must interrupt and object to his own lawyer’s presentation, and is then impeached by his own counsel under cross-examination. Such a presentation to the jury threatens the adversarial system itself, and undermines public confidence in the fair administration of justice. Adopting the government’s position would also put defense counsel in impossible ethical dilemmas and encourage more defendants to proceed pro se, even if they otherwise would have welcomed the assistance of counsel. The defendant, his lawyer, and the system as a whole will all be best served by a clear decision protecting the defendant’s autonomy.

The United States is poised to significantly expand its ballistic missile defense (BMD) capabilities in the coming years thanks to the 2018 National Defense Authorization Act (NDAA). A compromise version of the bill passed Congress on November 16th gives the green light to the Department of Defense to develop new BMD capabilities and expand existing systems. Congress still needs to appropriate funding and the Trump administration will set BMD policy in the months to come, but the NDAA provides valuable insight into the future of U.S. capabilities.

An eye-popping funding increase for the Missile Defense Agency authorized in the NDAA indicates both Congress and the Trump administration’s intention to beef up the nation’s BMD capabilities. The NDAA authorizes $12.3 billion for the agency, a staggering $4.4 billion more than its initial budget request of $7.9 billion. The lion’s share of the increase stems from a last-minute request made by the White House that argued more BMD spending is necessary to respond to the growing North Korea threat. There is no guarantee that Congress will appropriate all of the money that it authorizes in the NDAA, but both Congress and the Trump administration seem intent on throwing more money at BMD.

Most of the BMD programs authorized by the NDAA are supposed to protect the continental United States from a North Korean intercontinental ballistic missile (ICBM). Such systems are very expensive and have a poor testing record, but the threat posed by Pyongyang’s ICBMs provides political cover for policymakers to make big investments in homeland BMD.

The homeland BMD improvements in the NDAA fit into two broad categories. The first category includes existing capabilities that will expand and be tested more frequently. For example, the NDAA authorizes up to twenty additional interceptors for the Ground-Based Midcourse Defense system and gives the Department of Defense a green light to expand the capacity of the system’s missile fields in Fort Greely, Alaska. The NDAA also requires the Missile Defense Agency to test the SM-3 Block IIA interceptor, which started conducting intercept tests earlier this year, against an ICBM-range target no later than December 31, 2020.

The second category of BMD systems in the NDAA include more exotic capabilities that are in very early stages of development. Examples of these capabilities include space-based sensors and interceptors, and systems capable of destroying ballistic missiles in the boost phase of flight. The sections of the NDAA that deal with these capabilities come with the caveat that their development is tied to the ongoing BMD review. If the review recommends developing such systems, the Department of Defense will pursue the capability. Many of the exotic capabilities in the NDAA will be very expensive to develop and deploy, and they probably won’t work as intended.

North Korea is the proximate cause of the BMD expansion teed up by the NDAA, but the strategic impact of these systems go beyond the peninsula. An expanded and improved U.S. BMD architecture could damage strategic stability with other nuclear powers. Building a better shield against missile attack seems entirely defensive to policymakers in Washington, but to states engaged in security competition with the United States this “shield” could encourage U.S. aggression by reducing the targeted state’s ability to retaliate against a U.S. attack.

From a purely technical perspective, the shortcomings of America’s BMD capabilities should reassure other nuclear powers that their arsenals still pose a viable deterrent to a U.S. attack. Indeed, U.S. policy statements on BMD consistently mention that the systems are intended to defend against limited missile attacks by relatively unsophisticated adversaries such as Iran or North Korea. However, America’s relentless pursuit of more numerous and advanced BMD capabilities coupled with the development of increasingly accurate nuclear and conventional strike capabilities foster the perception that the United States wants to break out of nuclear vulnerability.

If nuclear powers locked in broader competition with the United States (e.g. Russia and China) make nuclear posture decisions based on worst-case perceptions, a future crisis with the United States could have very dangerous escalation risks. Strategic stability is mentioned briefly in the NDAA, but the bulk of the bill and the overall outlook of both the Congress and the Trump administration toward BMD capabilities suggest minimal concern about the impact these systems could have on strategic stability. Before Congress authorizes even more BMD capabilities, it would be wise to consider the reaction of other nuclear powers besides North Korea. 

A Trump friend wants a subsidy from the Department of Energy (DOE) to complete a nuclear power plant in Alabama, reports The Daily Caller. Frank Haney wants a DOE loan guarantee to open the Bellefonte nuclear plant, which used to be owned by the TVA. Alabama congressman Mo Brooks is supportive saying, “They seek the same treatment recently given the Vogtle plants in Georgia.”

Rep. Brooks is right that the Vogtle nuclear plant in Georgia is receiving federal subsidies, but that project is a $25 billion boondoggle. It has been plagued by cost overruns and bankruptcy.

As a representative of the people, Brooks should be concerned that Alabama power customers will get hit with bloated nuclear costs, as Georgia power customers will be. As for Haney, if he wants to swim against the tide of natural gas generation, he should swim with his own money.

Why is DOE Secretary Rick Perry handing out $3.7 billion in loan guarantees to Vogtle? He is turning Vogtle from an Obama scandal into a Trump scandal. Sadly, it was clear during Perry’s confirmation hearing that he had already capitulated to big government.

As for Bellefonte, we should withhold the subsidies and encourage Frank Haney to reuse the cooling towers he owns in a creative way. Maybe a climbing park with ziplines? A modern art museum? Affordable housing? Maybe a vertical car storage facility?

The federal government spends about $900 million a year on civilian nuclear activities. But why? After six decades of subsidies, the nuclear industry should stand on its own two cooling towers.

I discuss energy subsidies further in this study and TVA in this study.

Data from a new Government Accountability Office (GAO) report shows that interior checkpoints manned by Border Patrol agents are a poor use of resources, at least from an enforcement perspective. Border Patrol checkpoints would have to have apprehended about 100,000 to 120,000 more illegal immigrants from FY2013-2016 than they actually did to justify the man-hours spent occupying them by agents. Even those who support expanding immigration enforcement along the border should recognize that checkpoints are a waste of scarce border security resources. 

Border Patrol agents man checkpoints within 100 miles of the U.S. border where they can stop motorists, inquire about immigration status, and enforce other laws. Checkpoints are a significant risk to civil liberties and are expensive to run. Supporters argue that checkpoints are effective at enforcing federal laws against illegal immigration and drugs, although Border Patrol officials state that they are more concerned about the former. However, the number of illegal immigrant apprehensions, drug seizures by weight, and the deployment of Border Patrol man-hours to checkpoints show that they are not a good use of resources if the goal is to enforce immigration and drug laws.

Figure 1 comes from data reported by the GAO for FY2013-2016. About 9.4 percent of all man-hours worked by Border Patrol were at checkpoints but they only apprehended 3.1 percent of all illegal immigrants apprehended and 5.4 percent of all marijuana seized by weight, at best. At worst, Border Patrol apprehended only 1.9 percent of all illegal immigrants at checkpoints (this same number estimate is not reported for marijuana seizures). This means that Border Patrol agents would have to have apprehended 101,219 to 120,978 more illegal immigrants from FY2013-2016 at checkpoints than they actually did in order for their expenditure of man-hours to be proportional to their apprehensions. 

Border Patrol would have had to seize about 410,952 more pounds of marijuana at checkpoints from FY2013-2016 for their man-hours expenditure there to be proportional to the amount of the drug that they seized. Each unit of time that a Border Patrol agent spends at checkpoints results in fewer apprehensions and marijuana seizures than the same unit of time does spend enforcing those laws outside of checkpoints.

Figure 1

Border Patrol Man-Hours, Marijuana Seized by Weight, and Immigrant Apprehensions by Location, FY2013-2016


Source: Author’s Calculations from GAO.

The allocation of Border Patrol man-hours and the percent of illegal immigrant apprehensions by location comes from pages 29 and 41, respectively, of the GAO report. The marijuana seizures by weight come from page 81, where I multiplied the number of seizures by the maximum possible weight in each category, standardizing for ounces. For the category of marijuana seizures that weighed 250 pounds or more, I assumed that the average seizure was 500 pounds. Marijuana seizures by Border Patrol that weighed 250 pounds or more were only about 1.8 percent of seizures and only 3.7 percent of them occurred at checkpoints so any error from my over-or-underestimation of 500 pounds doesn’t much change the result. 

Defenders of checkpoints could argue that they deter illegal immigration, so the best measurement of their effectiveness is not necessarily the number that they do actually apprehend at checkpoints. By occupying checkpoints, Border Patrol agents could divert illegal immigrants and drugs into the hands of Border Patrol agents occupying other non-checkpoint locations. Thus, checkpoints wouldn’t get the apprehension or seizure credit even though they would deserve much of it. Those are defensible theoretical arguments but they lack evidentiary support. Border Patrol should provide that support to justify its seemingly wasteful deployment of agents to checkpoints.

A simple comparative static analysis of man-hours spent on Border Patrol checkpoints shows that they result in apprehending far fewer illegal immigrants and seize less marijuana, per man-hour, than Border Patrol manpower deployed elsewhere. The government needs to make a reasonable case for why this seemingly inefficient allocation of Border Patrol resources to checkpoints is wise. If they cannot do that then they should shut down the checkpoints and stop harassing motorists

In today’s Friday afternoon “news dump”—a tactic to either bury bad news or, as here, to get reporters scrambling to cover an important story despite weekend plans—President Trump added the following people to his list of potential Supreme Court nominees: Seventh Circuit Judge Amy Coney Barrett, Georgia Supreme Court Justice Britt Grant, D.C. Circuit Judge Brett Kavanaugh, Eleventh Circuit Judge Kevin Newsom, and Oklahoma Supreme Court Justice Patrick Wyrick.

These are stellar additions to the existing list of Supreme Court potentials. They show that the administration’s judicial-nominations team continues to be serious about picking people who are widely respected for their intellectual rigor and commitment to the rule of law. The inclusion of two more state justices—and only one from Washington (or anywhere in the Acela corridor)—also shows the national scope of the search for legal talent. Not everyone will agree with everything these jurists have written, but nobody can doubt that they are eminently qualified to join the highest court in the land. 

I’ll have more to say in coming days and weeks about the significance of this larger list and the role it plays in the context of President Trump’s judicial nominations more broadly. 

The City of Calhoun, Georgia, adopted a scheme by which bail was set to a pre-determined amount, resulting in Maurice Walker being held in jail for nearly 2 weeks on misdemeanor public drunkenness charges. Walker challenged detention on behalf of himself and those similarly situated, including persons held on traffic offenses. 

The federal district court got it right and enjoined the city from enforcing its scheme: when setting bail for criminal defendants, basic due-process principles require a judge to take into account the defendant’s income and set an individually payable amount. That rule exists to ensure against a manifest injustice, converting pre-trial liberty from a right into a privilege of the wealthy. But Calhoun is pursuing an appeal, now making its second appearance before the U.S. Court of Appeals for the Eleventh Circuit. As Cato points out in our amicus brief supporting Walker (essentially the same one we filed at an earlier stage of litigation), the due-process rule that the city violated is quite literally as old as the common law.

That right to individualized bail has existed at law for nearly a millennium. Following the Norman Conquest of England in 1066, England developed a robust bail system which ensured the right to pre-trial liberty. The 1215 Magna Carta enshrined that right: “No free man shall be arrested or imprisoned … or victimized in any other way … except by the lawful judgment of his peers or by the law of the land.” When the Stuart Kings of England attempted to impose further absolute monarchy, they chose to attack the right to pretrial liberty and aggrandize royal detention powers. In 1627, Charles I arrested five knights for unnamed offenses. Counsel for the knights challenged their detention on the ground of the Magna Carta’s liberty guarantee. The royalist King’s Bench denied that defense—contravening 400 years of law—but the House of Commons overruled the case in 1628 by passing the Petition of Right: “no freeman in any such manner as is before mentioned, be imprisoned or detained.”

Charles I was eventually beheaded in 1649 by rebel forces under parliamentary command for his constant usurpation of English constitutional rights. When his son Charles II was restored to the throne, he also attempted to impose absolutist policies, particularly regarding the power to detain. His abuse of jurisdictional loopholes led to the 1679 Habeas Corpus Act. Charles II was also (in)famous for setting very high bails, an issue Parliament addressed in 1689.

The same right to individualized bail is protected in the U.S. Constitution’s due process clauses—the Supreme Court has said as much in United States v. Salerno (1987) and Stack v. Boyle (1951)—as well as the Eighth Amendment’s prohibition on excessive bail. Constitutional history could not be clearer about bail and pretrial liberty: it must be available and affordable to all but the most dangerous defendants.

The City of Calhoun now stands with the Stuart Kings among the tyrants of history who usurp ancient rights—and on appeal is trying to defend that title. The city’s best course would still be to abandon its defense and comply with basic due-process requirements that preserve the freedom of the poor. That would save its taxpayers some legal fees to boot. But it has refused to do so, so this winter the Eleventh Circuit will again be hearing Walker v. City of Calhoun.

Yesterday HUD Secretary Ben Carson tweeted that “The Low-Income Housing Tax Credit [LIHTC] is one of the most effective tools we have to create affordable housing.” And Secretary Carson’s presidential advisor published an op-ed yesterday which lauded LIHTC as a prime example of “the most effective and efficient use of the government’s resources.”

That is high praise for a program known for expense, complexity, lack of oversight, and abuse. LIHTC is arguably one of the most inefficient housing subsidy programs that the federal government administers.

Chris Edwards and I detail some of LIHTC’s failings in our report published earlier this week. One of LIHTC’s problems is that it doesn’t successfully accomplish its own objectives to redistribute to low-income tenants and create new housing.

First, most of the LIHTC subsidy goes to developers, lawyers, accountants, and financiers rather than low-income tenants. A 2011 study found that low-income tenants capture one-third of the subsidy. That leaves two-thirds of the benefit for corporations, banks, accountants, and lawyers involved in the process.

Second, LIHTC displaces similar market-rate housing. A recent study estimated that “nearly 100 percent of LIHTC development is offset by a reduction in the number of newly built unsubsidized rental units.” That means LIHTC requires taxpayers fund housing that would be built on the private market.

Another problem is that LIHTC is relatively expensive even compared to other housing and other government housing programs. Michael Eriksen’s work suggests LIHTC units cost 20% more per square foot than medium-quality market-rate housing, and the Government Accountability Office (GAO) found LIHTC units cost 19-44% more than housing voucher units over their lifetime.

Not to mention, LIHTC has a history of fraud and abuse. NPR ran a documentary that outlined some of the recent cases earlier this year.

This problem is likely due to the federal government’s “minimal” oversight of the program. The IRS oversees LIHTC but has only audited 13 percent of state administrators during the program’s entire existence. As a GAO auditor put it earlier this year, the “IRS and no one else in the federal government really has an idea of what’s going on.”

This is just a sampling of LIHTC’s problems; additional issues are noted in the report. If LIHTC is HUD’s version of an “effective” and “efficient” government program then that explains a lot.

See our report for more details on the Low-Income Housing Tax Credit.

President Trump’s travel ban Proclamation that bans immigration and travel from seven countries (and limits it from an eighth) is based on authority in immigration law that other presidents have used. But all but one of these bans were quite different from President Trump’s. They banned at most a few thousand—almost always specifically named—individuals based on their personal conduct, not their nationality. In the one exception, not all nationals were banned, and the requirements to end the ban were very clear. Neither of which can be said for the Trump ban.

Different in Scale

No president has attempted to ban as many foreigners with a single stroke of his pen as President Trump did this September. If fully implemented, his ban would impact the ability of 183.6 million people to apply for a visa to travel to the United States—that’s the sum total of the population in the seven banned countries, but there are millions of their nationals who live outside their borders. This compares to the 10.2 million Cubans that President Reagan partially banned in 1986. All of the other 42 bans combined barred only roughly 30,000 (see explanation at the end).

Figure 1
Number of Banned Persons (in Millions) by Order

Sources: Author’s calculation based on the Office of Foreign Assets Control, World Bank, Congressional Research Service (listing the bans)

Here’s another important point: A majority of all of those banned under the 42 orders likely would be inadmissible under existing law anyway. About a third, for example, are terrorism suspects sanctioned under a Bush administration executive order and barred from entry by President Obama. But current law already bans those people from entering. For this reason, and because very few of these people had any intention to travel to the United States anyway, hardly any visa applicants have been denied due to a presidential proclamation. From 1991 to 2016, consular officers initially determined that a presidential proclamation could apply to 5,762 visa applicants. Of them, less than half—2,626—were ultimately denied a visa. As Figure 3 highlights, several years have seen no denials at all.

Figure 2
Number of Visa Applicants Denied Due to a Presidential Proclamation, FY 1991 to 2016

Sources: U.S. Department of State, “Table XX Immigrant and Nonimmigrant Visa Ineligibilities (by Grounds for Refusal Under the Immigration and Nationality Act),” FY 1991 to FY 2016

The Supreme Court allowed the second iteration of President Trump’s travel ban to go into partial effect from June to September, allowing him to ban those without any family or connections to U.S. businesses. Unfortunately, the State Department probably will not release data on visa denials until sometime next year. But it has revealed that it was approving roughly half as many visa applications in 2017 as it did in 2016 for the banned countries. We know that 693,827 people from banned countries received a visa from 2002 to 2016, including 73,503 in 2016. If even 4 percent of this total were denied a visa due to the latest travel ban, then more visa applicants will be denied a visa under this travel ban than all bans since 1991.

Different in Methodology

Unlike President Trump’s travel ban, 98 percent of prior president’s proclamations banned individuals based on their personal conduct, and almost always—93 percent of the time—they required that the targeted person be specifically identified and named by the Department of State. Only 2 percent of the time—one case—was nationality alone the requirement for the ban, and in no case was every visa applicant with that nationality subject to the ban. Under the Trump ban, all visa applicants from Syria and North Korea are subject to the ban based on their nationality alone, and most applicants are banned from Iran, Chad, Somalia, and Yemen.

Figure 3
Pre-Trump Executive Actions to Bar Visas by Methodology for Identifying Targets, 1980-2016

Sources: Author’s calculation based on the World Bank, Congressional Research Service (listing the bans)

The personal conduct included selling military equipment in Libya, purchasing certain materials from North Korea, attacking United Nations mission, or being a member of the North Korean regime. To avoid these types of bans, the targeted persons could simply stop engaging this type of activity. (Table 1 at the end of this post lists each proclamation or executive order as well as who the ban targeted.)

Different in Application

Roughly half of all pre-Trump bans did attempt to coerce governments indirectly by targeting their officials due to actions that the government was taking. Yet in virtually all of these cases, the government’s offense is clearly stated. In 1996, for example, President Clinton faulted “the current regime in Burma” for continuing “to detain significant numbers of duly elected members of parliament, National League for Democracy activists, and other persons.” In 1988, President Reagan imposed a ban on certain Nicaraguan officials for the “unjustified expulsion from Nicaragua of the United States Ambassador and seven other United States diplomats.”

The only other case in which individuals were banned based solely on the conduct of their government—and not due to their personal participation in that conduct as government officials—was President Reagan’s ban on Cuban immigration in 1986. But this ban exempted the largest category of Cuban immigrants—immediate family members of U.S. citizens. It also had a very clearly stated objective to get the Cuban government to accept the repatriation of 2,746 Cubans, and it achieved its objective the following year in 1987.

By contrast, President Trump’s travel ban—while seeming to lay out a series of very specific criteria—does not actually ban any country based on this criteria. As I’ve detailed before, the president fails to apply the criteria to countries off his travel ban list and applies stricter criteria to make sure his chosen countries stay on the list. This inconsistency means that no country actually knows why it is banned. Moreover, since the order doesn’t apply its stated criteria, countries that currently fail them, whether they are on the list or off it, have little incentive to change their behavior. This is a very different situation than the one in 1986. Cuba knew exactly why it was on the list and what it needed to do to get off of it.  

President Trump’s travel ban will impact more people than any other, and it operates in a way different from all others. It is truly unprecedented.


Table 1: Presidential Proclamations to Exclude Certain Classes of Aliens

  Order Year Targeted Area/Govt Acts of Alien Identified Aliens Nationality Alone All Nationals Number*   P 9645


7 Countries NO NO YES YES 184 million


EO 13726


Libya YES YES NO NO 10


EO 13722


North Korea YES YES NO NO 61


EO 13712


Burundi YES YES NO NO 29


EO 13694


Unspecified YES YES NO NO 39


EO 13692


Venezuela YES YES NO NO 7


EO 13687


North Korea YES YES NO NO 97


EO 13685


Ukraine YES YES NO NO 19


EO 13667


C. African R. YES YES NO NO 89


EO 13664


S. Sudan YES YES NO NO 40


EO 13662


Russia & Crimea YES YES NO NO 278


EO 13661


Russia & Crimea YES YES NO NO 60


EO 13660


Ukraine YES YES NO NO 218


EO 13645




EO 13628


Iran YES YES NO NO 117


EO 13619


Burma YES YES NO NO 482


EO 13608


Iran & Syria YES YES NO NO 9


EO 13606


Iran & Syria YES YES NO NO 21


P 8697


Unspecified YES YES NO NO ?


P 8693


Unspecified & Various YES YES NO NO 22,383


P 8342


~17 Nations YES YES NO NO ?


P 8158


Lebanon & Iran YES YES NO NO 15


P 8015


Belarus YES YES NO NO 195


P 7750


Unspecified YES YES NO NO ?


P 7524


Zimbabwe YES YES NO NO 87


P 7452


Balkans YES YES NO NO 374


P 7359


Sierre Leone YES YES NO NO ?


P 7249


Serbia YES YES NO NO 2,184


P 7062


Sierre Leone YES YES NO NO ?


P 7060


Angola YES YES NO NO ?


P 6958


Sudan YES YES NO NO 283


P 6925


Burma YES YES NO NO 482


P 6749


Bosnia YES YES NO NO 334


P 6730


Liberia YES YES NO NO 556


P 6685


Haiti YES YES NO NO 1194


P 6636


Nigeria YES YES NO NO ?


P 6574




P 6569




EO 12807


High Seas YES NO NO NO ?


P 5887


Nicaragua YES YES NO NO ?


P 5829


Panama YES YES NO NO ?


P 5517


Cuba NO NO YES NO 10 million


P 5377


Cuba YES YES NO NO 665


P 4865


High Seas YES NO NO NO ?   Pre-2017 Share of Yes






Sources: Author’s calculation based on the Office of Foreign Assets Control, World Bank, Congressional Research Service (listing the bans)
*Other than the Trump ban and the Cuba ban, the number is based on the number of designations under the Office of Foreign Assets Control. This number also includes “entities” such as organizations, agencies, and businesses, so the total number is probably somewhat larger for this reason as well as the fact that the bans often included the immediate family of the targeted person. Italicized numbers indicate that the number is based on the current sanctions impacting that country.


Table 2: Presidential Proclamations to Exclude Certain Classes of Aliens


Target and Purpose

1 2016, Apr. 21 – Obama
Executive Order 13726, 81 Fed.
Reg. 23559 Aliens who “contributed to the situation in Libya” in enumerated ways (e.g., threatening the peace of Libya by supplying arms, impeding the political transition to a Governor of National Accord, threatening Libyan state financial institutions or Libyan National Oil Company, attacking Libyan state facilities, attacking civilians, or illegally selling Libyan oil 2 2016, Mar. 18 – Obama
Executive Order 13722, 81 Fed.
Reg. 14943
Aliens who engaged in certain transactions involving North Korea (e.g., selling or purchasing metal, graphite, coal, or software directly or indirectly to or from North Korea, or to persons acting for or on behalf of the North Korean government or the Workers’ Party of Korea) 3 2015, Nov. 25 – Obama
Executive Order 13712, 80 Fed.
Reg. 73633
Aliens who “contributed to the situation in Burundi” in enumerated ways (e.g., threatening the peace of Burundi by undermining the democratic processes of Burundi, targeting women, children, or civilians through acts of violence, assaulting freedom of expression, recruiting children to the armed forces, obstructing humanitarian assistance, or attacking United Nations missions. Suspension is justified due to “violence against civilians… and significant political repression.”) 4 2015, Apr. 2 – Obama
Executive Order 13694, 80 Fed. Reg. 18077 Aliens who engaged in “significant malicious cyber-enabled activities” (e.g., harming or significantly compromising the provision of services by a computer or computer network that supports an entity in a critical infrastructure sector) 5 2015, Mar. 11 – Obama
Executive Order 13692, 80 Fed.
Reg. 12747
Aliens who “contributed to the situation in Venezuela” in enumerated ways (e.g., undermining Democratic processes in Venezuela by conducting acts of violence against persons involved in antigovernment protests in Venezuela in or since February 2014, limiting freedom of expression or assembly, engaging in corruption by senior officials within the Government of Venezuela, or being officials of the Government of Venezuela) 6 2015, Jan. 6 – Obama
Executive Order 13687, 80 Fed.
Reg. 819
Aliens with enumerated connections to North Korea (e.g., officials of the North Korean government or the Workers’ Party of Korea) due to North Korea’s “destructive, coercive cyber-related actions during November and December 2014” 7 2014, Dec. 24 – Obama
Executive Order 13685, 79 Fed.
Reg. 77357
Aliens who engaged in certain transactions involving the Crimea region of Ukraine (e.g., materially assisting, sponsoring, or providing financial, material, or technological support for, or goods or services to or in support of, persons whose property or interests are blocked pursuant to the order, such as leaders of entities operating in the Crimea region of Ukraine, investors in the Crimea region of the Ukraine, and importers of goods from Crimea, or exporters of goods to Crimea) due to “the Russian occupation of the Crimea region of Ukraine” 8 2014, May 15 – Obama
Executive Order 13667, 79 Fed.
Reg. 28387
Aliens who contributed to the conflict in the Central African Republic in enumerated ways (e.g., threatening the peace of C.A.R. by obstructing transitional agreements in the political transition, targeting women, children, or civilians in acts of violence, recruiting children to armed groups, obstructing the delivery of humanitarian assistance, or attacking U.N. missions) 9 2014, Apr. 7 – Obama
Executive Order 13664, 79 Fed.
Reg. 19283
Aliens who engaged in certain conduct as to South Sudan (e.g., actions or policies that “have the purpose or effect of expanding or extending the conflict,” obstructing reconciliation or peace talks or processes, targeting civilians through acts of violence, recruiting child soldiers, or attacking against U.N. missions) 10 2014, Mar. 24 – Obama
Executive Order 13662, 79 Fed.
Reg. 16169
Aliens who contributed to the situation in Ukraine in enumerated ways (e.g., operating in the financial services, energy, metals and mining, engineering, or defense and related materiel sectors of the Russian Federation economy due to Russia’s “purported annexation of Crimea and its use of force in Ukraine”) 11 2014, Mar. 19 – Obama
Executive Order 13661, 79 Fed.
Reg. 15535
Aliens determined to have contributed to the situation in Ukraine in enumerated ways (e.g., officials of the government of the Russian Federation, or persons who operate in the arms or related materiel sector due to the “deployment of Russian Federation military forces in the Crimea region of Ukraine”) 12 2014, Mar. 10 – Obama
Executive Order 13660, 79 Fed. Reg. 13493 Aliens determined to have contributed to the situation in Ukraine in enumerated ways (e.g., engagement in or responsibility for misappropriation of state assets of Ukraine or of economically significant entities in that country) 13 2013, June 5 – Obama
Executive Order 13645, 78 Fed.
Reg. 33945
Aliens who have engaged in certain conduct related to Iran (e.g., materially assisting, sponsoring, or providing support for, or goods or services to or in support of, any Iranian person included on the list of Specially Designated Nationals and Blocked Persons) 14 2012, Oct. 12 – Obama
Executive Order 13628, 77 Fed.
Reg. 62139
Aliens who engaged in certain actions involving Iran (e.g., knowingly transferring or facilitating the transfer of goods or technologies to Iran, to entities organized under Iranian law or subject to Iranian jurisdiction, or to Iranian nationals, that are likely to be used by the Iranian government to commit serious human rights abuses against the Iranian people) 15 2012, July 13 – Obama
Executive Order 13619, 77 Fed.
Reg. 41243
Aliens who are determined to threaten the peace, security, or stability of Burma in enumerated ways (e.g., participation in the commission of human rights abuses, or importing or exporting arms or related materiel to or from North Korea) 16 2012, May 3 – Obama
Executive Order 13608, 77 Fed.
Reg. 26409
Aliens who engaged in certain conduct as to Iran and Syria (e.g., facilitating deceptive transactions for or on behalf of any person subject to U.S. sanctions concerning Iran and Syria) 17 2012, Apr. 24 – Obama
Executive Order 13606, 77 Fed.
Reg. 24571
Aliens determined to have engaged in enumerated conduct involving “grave human rights abuses by the governments of Iran and Syria via information technology” (e.g., operating or directing the operation of communications technology that facilitates computer or network disruption, monitoring, or tracking that could
assist or enable serious human rights abuses by or on behalf of these governments) 18 2011, Aug. 9 – Obama
Proclamation 8697, 76 Fed. Reg. 49277 Aliens who participate in serious human rights and humanitarian law violations and other abuses (e.g., planning, ordering, assisting, aiding and abetting, committing, or otherwise participating in “widespread or systemic violence against any civilian population” based, in whole or in part, on race, color, descent, sex, disability, language, religion, ethnicity, birth, political opinion, national origin, membership in a particular social group, membership in an indigenous group, or sexual orientation or gender identity) 19 2011, July 27 – Obama
Proclamation 8693, 76 Fed. Reg. 44751 Aliens subject to U.N. Security Council travel bans and International Emergency Economic Powers Act sanctions based on a list of 29 Executive Orders and 12 U.N. resolutions. 20 2009, Jan. 16 – Bush
Proclamation 8342, 74 Fed. Reg. 4093 Heads of ministries or agencies and officials occupying positions within the two bureaucratic levels below those top positions of foreign governments ranked more than once as Tier 3 countries in the Department of States’ annual Trafficking in Persons Report. 21 2007, July 3 – Bush
Proclamation 8158, 72 Fed. Reg. 36587 Persons that threaten Lebanon’s sovereignty and democracy (e.g., current or former Lebanese government officials and private persons who “contribute to the breakdown in the rule of law in Lebanon, including through the sponsorship of terrorism, politically motivated violence or intimidation, or the reassertion of Syrian control in Lebanon”) and Syrian officials who are directing Syria’s military presence in Lebanon or directing Syria’s support for Hamas, Hizballah, Palestinian Islamic Jihad, the Popular Front for the Liberation of Palestine, the Popular Front for the Liberation of Palestine-General Command, and any other foreign terrorist organizations. 22 2006, May 16 – Bush
Proclamation 8015, 71 Fed. Reg. 28541 Persons that threaten the transition to democracy in Belarus (e.g., Members of the government of Alyaksandr Lukashenka and other persons involved in policies or actions that “undermine or injure democratic institutions or impede the transition to democracy in Belarus” due to “the fraud perpetrated by the Belarus government during the recent Belarusian presidential campaign and election, the detention of peaceful protesters in Belarus, [and] the persistent acts of corruption by Belarusian government officials in the performance of public functions” 23 2004, Jan. 14 – Bush
Proclamation 7750, 69 Fed. Reg. 2287 Persons who have engaged in or benefitted from corruption in enumerated ways (e.g., current or former public officials whose solicitation or acceptance of articles of monetary value or other benefits has or had “serious adverse effects on the national interests of the United States”) 24 2002, Feb. 26 – Bush
Proclamation 7524, 67 Fed. Reg. 8857 Persons that threaten Zimbabwe’s democratic institutions and transition to a multi-party democracy (e.g., Senior members of the government of Robert Mugabe, persons who through their business dealings with Zimbabwe government officials derive significant financial benefit from policies that undermine or injure Zimbabwe’s democratic institutions due to the “crisis in Zimbabwe and the continued failure of President Robert Mugabe, Zimbabwean government officials, and others to support the rule of law”) 25 2001, June 29 – Bush
Proclamation 7452, 66 Fed. Reg. 34775 Persons who threaten international stabilization efforts in the Western Balkans or commit wartime atrocities in that region preventing “full implementation of the Dayton Peace Accords in Bosnia and United Nations Security Council Resolution 1244 in Kosovo” 26 2000, Oct. 13 – Clinton
Proclamation 7359, 65 Fed. Reg. 60831 Aliens who plan, engage in, or benefit from activities that support the Revolutionary United Front or otherwise impede the peace process in Sierra Leone 27 1999, Nov. 17 – Clinton
Proclamation 7249, 64 Fed. Reg. 62561 Aliens repressing the civilian population in Kosovo or policies that obstruct democracy in the Federal Republic of Yugoslavia (FRY) or otherwise lend support to the government of the FRY and the Republic of Serbia due to actions “against elements of the civilian population of Kosovo” and “to obstruct democracy and to suppress an independent media and freedom of the press in the FRY, Serbia, Montenegro, and Kosovo” 28 1998, Jan. 16 – Clinton
Proclamation 7062, 63 Fed. Reg. 2871 Members of the military junta in Sierra Leone and their family for “to permit the return to power of the democratically elected government of that country” 29 1997, Dec. 16 – Clinton
Proclamation 7060, 62 Fed. Reg. 65987 Senior officials of the National Union for the Total Independence of Angola (UNITA) and adult members of their immediate families for failure to “comply with its obligations under the Accordos de Paz” 30 1996, Nov. 26 – Clinton
Proclamation 6958, 61 Fed. Reg. 60007 Members of the government of Sudan, officials of that country, and members of the Sudanese armed forces for failing to “comply with United Nations Security Council Resolution 1044 of January 31, 1996” (failing to “extradite to Ethiopia for prosecution the three suspects sheltering in the Sudan and wanted in connection with the assassination attempt” on the Egyptian President and “assisting, supporting and facilitating terrorist activities and from giving shelter and sanctuaries to terrorist elements”) 31 1996, Oct. 7 – Clinton
Proclamation 6925, 61 Fed. Reg. 52233 Persons who “formulate, implement, or benefit from policies that impede Burma’s transition to democracy” and their immediate family members because “the current regime in Burma’s continues to detain significant numbers of duly elected members of parliament, National League for Democracy activists, and other persons attempting to promote democratic change in Burma” and “has failed to enter into serious dialogue with the democratic opposition and representatives of the country’s ethnic minorities, has failed to move toward achieving national reconciliation, and has failed to meet internationally recognized standards of human rights.” 32 1994, Oct. 27 – Clinton
Proclamation 6749, 59 Fed. Reg. 54117 Aliens described in U.N. Security Council Resolution 942 (e.g., officers of the Bosnian Serb military and paramilitary forces and those acting on their behalf, or persons found to have provided financial, material, logistical, military, or other tangible support to Bosnian Serb forces in violation of relevant U.S. Security Council resolutions) due to “the Bosnian Serb forces’ refusal to accept the proposed territorial settlement of the conflict in the Republic of Bosnia and Herzegovina, and of United Nations Security Council Resolution 942 of September 23, 1994” 33 1994, Oct. 5 – Clinton
Proclamation 6730, 59 Fed. Reg. 50683 Aliens who formulate, implement, or benefit from policies that impede Liberia’s transition to democracy and their immediate family due to “political and humanitarian crisis in Liberia” during the Liberian civil war. 34 1994, May 10 – Clinton
Proclamation 6685, 59 Fed. Reg. 24337 Aliens described in U.N. Security Council Resolution 917 (e.g., officers of the Haitian military, including the police, and their immediate families; major participants in the 1991 Haitian coup d’etat) due to “the expulsion from Haiti of President Aristide and the constitutional government.” 35 1993, Dec. 14 – Clinton
Proclamation 6636, 58 Fed. Reg. 65525 Aliens who formulate, implement, or benefit from policies that impede Nigeria’s transition to democracy and their immediate family due to the “the political crisis in Nigeria” (not stated in the Proclamation, but this followed the military’s decision to annul the presidential election results) 36 1993, June 23 – Clinton
Proclamation 6574, 58 Fed. Reg. 34209 Persons who formulate or benefit from policies that impede Zaire’s transition to democracy and their immediate family due to “the political and economic crisis in Zaire” (not stated in the Proclamation but this followed the dictator Mobutu’s refusal to step down from power) 37 1993, June 7 – Clinton
Proclamation 6569, 58 Fed. Reg. 31897 Persons who formulate, implement, or benefit from policies that impede the progress of negotiations to restore a constitutional government to Haiti and their immediate family due to “the expulsion from Haiti of President Aristide and the constitutional government” 38 1992, June 1 – Bush
Executive Order 12807, 57 Fed.
Reg. 23133
Making provisions to enforce the suspension of the entry of undocumented aliens by sea and the interdiction of any covered vessel carrying such aliens due to “a serious problem of persons attempting to come to the United States by sea without necessary documentation and otherwise illegally” 39 1988, Oct. 26 – Reagan
Proclamation 5887, 53 Fed. Reg. 43184 “Officers and employees of the Government of Nicaragua” and the Sandinista National Liberation Front due to the refusal to “allow the entry of United States diplomats to ensure the continued functioning of the U.S. embassy” and cease “suppression of free expression and press and support of subversive activities throughout Central America” 40 1988, June 14 – Reagan
Proclamation 5829, 53 Fed. Reg. 22289 Panamanian nationals who formulate or implement the policies Manuel Antonio Noriega and Manuel Solis Palma, and their immediate families for “preventing the legitimate government of President Eric Arturo Delvalle from restoring order and democracy to that country.” 41 1986, Aug. 26 – Reagan
Proclamation 5517, 51 Fed. Reg. 30470 Cuban nationals as immigrants with certain enumerated exceptions (e.g., Cuban nationals applying for admission as immediate relatives under INA § 201(b)) due to the failure to execute of the December 14, 1984 immigration agreement between the United States and Cuba (repatriation of 2,746 Cubans) 42 1985, Oct. 10 – Reagan
Proclamation 5377, 50 Fed. Reg. 41329 “Officers or employees of the Government of Cuba or the Communist Party of Cuba” due to the failure to execute of the December 14, 1984 immigration agreement between the United States and Cuba (repatriation of 2,746 Cubans) 43 1981, Oct. 1 – Reagan Proclamation 4865, 46 Fed. Reg. 48107 Undocumented aliens from the high seas, and directing the interdiction of certain vessels carrying such aliens because the “ongoing migration of persons to the United States in violation of our laws is a serious national problem detrimental to the interests of the United States.”

Class actions allow a single plaintiff, or group of plaintiffs, to represent the interest of a larger “class” of people with the same or similar legal claims. In practice, such cases are driven not by the actual plaintiffs, however, but by lawyers who conceive and control the lawsuit—and too often reap an outsized portion of the rewards. Allowing lawyers to negotiate on behalf of people who don’t even know they’re being represented creates opportunities for self-dealing, where the lawyers sell off the legal rights of absent class members in exchange for hefty attorney fees. Because of these potential conflicts of interest, courts are called upon to police class actions to a far greater extent than they are in the course of other litigation.

Amy Yang is one of these exploited absent class members. She objects to the settlement of a set of antitrust actions against various airlines serving routes between the U.S. and Asia, alleging a price-fixing conspiracy. The problem is that the certified class includes members who have no real chance of recovery at trial: those who purchased their tickets through a third party (think Expedia or Orbitz) and those whose flights originated abroad. Under the antitrust laws, only those who directly purchased tickets from airlines for flights originating in the United States are eligible for recovery, yet those sure losers are included in the class on an equal basis with as valid claims. Indeed, most of the class is probably ineligible for recovery, since most people buy tickets through third-party websites these days rather than directly from the airline.

But a larger class means a larger fee, and so the plaintiff’s lawyers—known as “class counsel”—weighed the class down with bogus claims to inflate their own payday. This is great for the lawyers, but it comes at the expense of class members with legitimate claims, who see their recovery diluted to make up the difference. Yang, represented by the Competitive Enterprise Institute’s Center for Class Action Fairness, has asked the Supreme Court to put a stop to this skullduggery. Cato filed a brief urging the Court to take the case. Our brief focuses on the constitutional imperative that courts effectively police the class-action system to ensure that all citizens are afforded constitutional due process. To do otherwise would place all our legal rights in the hands of the plaintiffs’ bar, to be auctioned off so they can buy beach houses and sports cars.

The main argument against President Trump’s plan to hire more Border Patrol agents is that the Southern border does not need them.  Even border hawks can’t argue with the evidence that Border Patrol agents are a lot less busy than they used to be.  In 1986, Border Patrol agents along the Southern border apprehended an average of 42 illegal immigrants every month.  That number fell to 2 a month by 2016 – one apprehension for every couple of weeks on the job (Figure 1).  The last month that apprehensions for all Border Patrol were above three per agent was in April 2010 and the number has steadily declined since then.  From January through September 2017, all Border Patrol agents have apprehended an average of 1.1 illegal crossers per month.  Even if you believe that the hiring spree of Border Patrol agents in recent decades stopped unlawful immigration (probably not), there is no good reason to hire more unionized government law enforcement officers to patrol a secure border.


Figure 1

Apprehensions Per Border Patrol Agent

Source: Customs and Border Protection.

Another good reason not to expand an expensive federal law enforcement agency that already has too little to do is that there are serious personnel and, likely, corruption issues in Border Patrol that need to be addressed first.  My recent Cato Institute Policy Analysis delved into the opaque world of corruption data in Customs and Border Protection (CBP) and found lots of poorly reported and contradictory information.  Fortunately, the Office of Personnel Management (OPM) does report the number of terminations by reason per occupation per agency.  Although OPM doesn’t specifically identify corruption, a termination for discipline or performance includes those terminated for corruption – as well as other issues.  The results were worse than I suspected: Border Patrol agents were the most likely to be terminated for poor discipline and bad performance than law enforcement officers in any other large federal law enforcement agency (Figure 2).  The second most likely to be terminated were Customs Officers.  Immigration and Customs Enforcement (ICE) agents were the fourth most likely. 


Figure 2

Termination Rate for Law Enforcement Officers by Federal Agency, 2006-2016


Sources: Office of Personnel Management, “FedScope Separations Cube, Fiscal 2006-2016”; and Office of Personnel Management, “FedScope Employment Cube, Fiscal Years 2006-2016.” Published in “Border Patrol Termination Rates: Discipline and Performance Problems Signal Need for Reform,” Cato Institute Policy Analysis, November 2, 2017.

Note: BOP = Bureau of Prisons; BP = Border Patrol; CBP-OFO = Customs and Border Protection Office of Field Operations; DEA = Drug Enforcement Administration; FBI = Federal Bureau of Investigation; ICE = Immigration and Customs Enforcement.

All in all, Border Patrol agents were twice as likely to be terminated for disciplinary infractions or poor performance as ICE agents and 49 percent more likely than CBP officers who work in the Office of Field Operations, from 2006 through 2016. Border Patrol agents were 54 percent more likely than guards at the Bureau of Prisons to be terminated for disciplinary infractions or poor performance, 6 times as likely as Federal Bureau of Investigation agents, 7.1 times as likely as Drug Enforcement Administration agents, and 12.9 times as likely as Secret Service agents. 

The lack of effective internal affairs at Border Patrol and CBP is a major reason for these problems.  There is some positive movement on Capitol Hill to address the lack of sufficient internal affairs at Border Patrol and CBP, but it is unfortunately tied to a massive and unnecessary expansion of the force itself.  Severe discipline and performance problems combined with a historic slowdown in the number of illegal immigrant border crossers are two excellent reasons not to hire 5,000 additional Border Patrol agents.

Washington Metro should raise bus fares and cut service as a part of a plan to restore its rail system to its former greatness, recommends a report by former Secretary of Transportation Ray LaHood. The report hasn’t been released yet–in fact, it has apparently been sitting on the Virginia governor’s desk for several weeks–but the Washington Post obtained a copy just in time for the report to have no influence on Virginia’s recent election.

Parts of the report are predictable, such as a recommendation that Metro obtain a source of “dedicated funds,” meaning a tax dedicated to it so it won’t have to be responsive to local politicians. However, LaHood’s mandate was to come up with a specific funding source acceptable to regional political interests, and he failed to do so.

What was not predicted was a finding that Metro “offers more [vehicle-hours of] service per rider than other large transit agencies.” Based on this finding, LaHood recommended cutting back service. The report notes that service levels were “average when compared to peers” until the opening of the Silver Line led to increased service hours coinciding with a decline in ridership.

So as the Silver Line has not only hurt the rail system, LaHood now recommends that Metro fix the problem by cutting back on service. But he does not recommend cutting back on Silver Line service. Instead, LaHood wants Metro to cut back on bus service (which he says is also above average) and raise bus fares. Ironically, this echoes my recent commentary noting that transit agencies often pay for the high cost of rail by cutting bus service.

Another of LaHood’s findings is that Metro’s costs are “average” compared with its peers. But, as former Indianapolis mayor Stephen Goldsmith once noted, you can’t find out whether a public agency’s costs are reasonable by comparing it with other public agencies; you need to compare it with private operators. For example, Denver’s RTD contracts out half its buses to private operators that consistently charge RTD about 52 to 53 percent of the amount RTD spends running its own buses.

LaHood could have recommended that Metro contract out its bus service. In 2016, it spent $15 per vehicle-revenue mile operating its buses. Denver’s RTD spent $11 per vehicle-revenue mile on its buses, but paid private contractors less than $6 per vehicle-revenue mile on the buses they operated. Based on this, Metro’s costs may be “average” but are not reasonable.

Rather than save money by contracting out service, LaHood wants bus riders, who are disproportionately black, to pay more for less service in order to make up for Metro’s incompetence in managing its rail system. Meanwhile, he did not propose to raise fares for rail riders, who are disproportionately white.

In short, LaHood’s long-awaited report not only does not come up with a magic formula for a sales tax or another tax to help pay for rehabilitating Metro rail, the proposals he makes would actually do more harm than good for Metro’s transit-dependent population. Raising bus fares and cutting service is likely to accelerate declining ridership, which is exactly the opposite of what Metro wants to do.

Meanwhile, LaHood’s proposals to change Metro’s board could be considered a way of tinkering with the deck chairs as the ship is sinking–except that it is in line with Metro’s larger objective of becoming less dependent on and less responsive to local elected officials. Metro wants to be its own taxing district with its own board that will do whatever Metro’s staff tells it. Yet there is no evidence that this model works particularly well in other regions; instead, it merely takes the agency one more step away from the users it is supposed to serve.

LaHood apparently never considered asking Metro riders to actually pay for the service they use. But if users can’t be expected to cover the costs, maybe we don’t really need to provide the service. Unfortunately, if anyone in the DC area was looking for creative solutions to Metro’s problems, LaHood was the wrong person to ask.

What is the best way to help low-income people – a group that disproportionately includes blacks and Latinos – get access to jobs? That question is certainly not answered by a report from left-wing think tank Demos. The report is aptly titled To Move Is to Thrive, but its subtitle, “Public Transit and Economic Opportunity for People of Color,” gives away its real agenda: more subsidies to the transit industry.

Written by Algernon Austin, the author of America Is Not Post-Racial, the report observes that “people of color” are less likely to own cars and more likely to be transit-dependent than white people. But Austin ignores the obvious and best solution, which is to give low-income people (regardless of color) access to cars. Instead, his report promotes “transit-focused infrastructure projects” in minority neighborhoods.

Since 1970, this nation has spent hundreds of billions of dollars on transit infrastructure projects. These projects have been disproportionately directed towards middle-class neighborhoods because middle-class people are the ones who pay for them through their taxes and the ones whose political support is needed to build them.

At the same time, the high cost of these projects has often forced transit agencies to cut bus service to low-income neighborhoods. This has happened in Atlanta, Los Angeles, the San Francisco Bay Area, and numerous other places, often resulting in overall declines in transit ridership.

The NAACP successfully sued Los Angeles Metro for cutting bus service to minority neighborhoods to pay for new rail construction to middle-class neighborhoods. The court ordered Metro to restore and maintain bus service to minority neighborhoods for ten years. That order expired in 2006. Since 2007, Metro expanded its light-rail system from 109 to 171 miles, increasing light-rail vehicle-miles of service by 58 percent. But to do so, it cut bus service by nearly 20 percent and lost 25 percent of its bus riders. By 2016, it had gained close to 21 million light-rail trips per year, but it lost more than 101 million bus trips.

What makes Austin think that more spending on transit infrastructure will have different results when the wealthy will continue to use their political power to make sure that government spending benefits themselves, not low-income minorities?

Or take Washington, DC, whose subway system (according to historian Zachary Schrag) was specifically designed to avoid low-income neighborhoods because planners assumed that low-income workers would not be able to afford to ride the trains. Under pressure from the black community, planners made a late addition of the Green Line to Anacostia/Navy Yard, a predominately black neighborhood south of the Capitol. Once the line was built, much of the area  quickly gentrified with government office buildings and tax-increment financing, pushing black residents into Prince Georges County, which has little rail service.

Again, why would Austin think more transit infrastructure would have different results, especially when rail transit is sold to local officials for its supposed ability to “rehabilitate neighborhoods” (i.e., slum clearance or gentrification)?

If Austin really wanted to help low-income people using transit, he would advocate a halt to new transit infrastructure construction, for that construction almost invariably harms transit-dependent low-income workers. But if Austin really wanted to help low-income families in general, he would advocate giving low-income people better access to automobiles, which offer people speedier trips to more potential jobs than any transit improvements.

One recent study found that low-income people with cars have access to 30 times as many jobs as low-income people dependent on transit. Not only do transit speeds average just 15 mph (see p. 9), while average auto speeds in most cities are twice that, autos allow users to go where and when they want to go, while transit riders must go where and when the transit goes, which often means less direct routes than they could drive.

An alternative to spending billions on new transit infrastructure would be to give some of the subsidies now being spent on transit to low-income people in the form of vouchers they could use on any form of transportation. Some might continue to ride transit; others might buy a used car; still others might use Lyft or other ride-sharing services.

The Ways to Work program offers low-income people low-interest loans to buy a used car or repair a car so they can more easily get to work. Loan repayment rates are high, so the program ends up costing taxpayers very little money. While the link goes to a program in Wisconsin, many other states have similar programs.

This is not only more effective than transit infrastructure, it is more sustainable because once people have a job, they will pay their own transportation costs. By comparison, transit requires heavy and continuing subsidies that are something like 40 times greater, per passenger mile, than highway subsidies. In many cases, transit subsidies to commuters are so great that it would be less expensive to simply give those commuters new cars. But the Ways to Work program doesn’t give anyone anything; it merely loans them money so they can become self-sufficient. Thus, Ways to Work can reach far more people for far less money than building new transit infrastructure.

During a debate over this issue, the general manager of one of the nation’s largest transit agencies responded to my proposals by saying, “We can’t give poor people cars; it would create too much congestion!” In other words, he was counting on both poverty and congestion to justify his job and the subsidies to his agency. 

Demos claims to be “working for an America where we all have an equal say in our democracy and an equal chance in our economy.” I certainly support that goal. But we aren’t going to reach it with a two-tiered society in which whites enjoy the mobility offered by cars while minorities are limited to destinations they can reach on mass transit, which is what Austin seems to be advocating.

Austin is right about one thing: to move is to thrive. But he failed to realize that autos allow people to move faster, cheaper, and more conveniently than transit. Demos’ goals would be better achieved by jettisoning slow, expensive mass transit systems and instead making sure everyone has equal access to urban transportation that is fast, affordable, and reaches the most jobs.

The standard explanation for the opioid epidemic blames pharmaceutical companies and doctors for overstating the benefits and understating the risks of prescription opioids.  See this essay by Robert Verbruggen, the deputy managing editor of National Review.

An alternative explanation is that opioids – like many substances – are dangerous mainly when heavily restricted or outlawed; thus, increased prescribing over the past several decades has generated overdoses by forcing more people into the black market, where they consume heroin of unknown purity that is sometimes laced with fentanyl.  See my comment on Verbruggen’s essay (or this essay by Cato scholar Jeffrey Singer).

Resolving this debate is crucial: under the standard view, policy should restrict opioid prescribing further; under the alternate view, policy should liberalize prescribing or better yet allow unrestricted legal acces to all opioids, prescription or otherwise. 

So far policymakers have been increasing restrictions, and the opioid death rate has kept climbing. I’ll let you do the math.

After a year of contentious negotiations between Illinois Governor Bruce Rauner and the American Federation of State, County, and Municipal Employees, Council 31 (“AFSCME”), the parties reached a bargaining impasse in early 2016. As a result, the governor attempted to institute reforms over AFSCME’s objections, with the union then suing to thwart implementation. Caught in the middle of this power struggle was Mark Janus, a state employee who was compelled to subsidize the union’s efforts despite his personal opposition to its position (and non-membership). These forced exactions, known as “agency fees,” essentially provide workers in the 25 states that allow them with a Hobson’s choice: Either sacrifice your First Amendment rights by funding political advocacy you may not like, or find another job.

The Supreme Court precedent allowing this unjust scenario, Abood v. Detroit Board of Education (1977), has become quite controversial. Twice in the past five years, the Court has explicitly questioned its central holding that mandatory agency fees are constitutional, and two terms ago the Court split 4-4 on the issue of whether to overturn Abood outright. Mr. Janus’s case finally provides the Court with a golden opportunity to restore the First Amendment liberties of the country’s public-sector workers. One of the union’s central arguments is that stare decisis should keep Abood in place. Stare decisis is a legal doctrine whereby courts are bound by their own precedents because of the reliance interests that have built up around them; sometimes it’s more disruptive to society to get a ruling right than to allow a possibly erroneous ruling to stand.

Because only constitutional amendments can check the Supreme Court’s constitutional rulings, however, and given that it’s increasingly hard to enact constitutional amendments, stare decisis is at its weakest when constitutional rights are being violated. In fact, when judges find that certain prudential factors weigh in favor of overturning precedent, judges have a duty to correct those past constitutional mistakes.

Abood is mistaken for several reasons. First, it improperly used the concept of “labor peace” to justify the infringement on public employees’ First Amendment rights. Before Abood, labor peace was completely unrelated to the First Amendment, instead being used to analyze whether Congress had power under the Commerce Clause to regulate labor disputes. But just because the Constitution gives Congress such authority, it doesn’t necessarily follow that Congress’s particular exercise of that power respects fundamental constitutional rights.

Moreover, Abood represents an anomaly in First Amendment jurisprudence. Abood’s confusion of powers and rights marked a significant departure from the Court’s prior jurisprudence, while subsequent decisions have rendered it no more than a remnant of an abandoned doctrine. There are also no reliance interests worthy of stare decisis protection, as employees certainly don’t rely on being deprived of their freedom of speech and association and unions’ desire to keep the money flowing isn’t a constitutionally cognizable interest.

Finally, when courts have attempted to apply the Abood standard, it has proven to be simply unworkable. Due to the inherently political nature of public-sector unions, their collective bargaining efforts and political actions are practically indistinguishable. Even if one could make such a distinction, it would be meaningless in practice because money is fungible.

With a focus on stare decisis in general and the flawed labor-peace rationale specifically, Cato—joined by the National Federation of Independent Business and Center of the American Experiment—has filed an amicus brief seeking to finally end the extensive and pernicious infringements on core constitutional principles. After the Supreme Court hears Janus v. AFSCME in the new year, it should overrule Abood and restore workers’ First Amendment rights.


Uwe Reinhardt, a beloved health economist at Princeton University, died Monday at the age of 80. Uwe was a giant in his profession. His combination of insightful economic analysis and wit knew no equal. I always, always looked forward to hearing what Uwe had to say. We are proud to have hosted him at the Cato Institute, to have debated him, and to have called him a friend. The Cato Institute offers its condolences to the Reinhardt family, for whom Uwe made no secret of his love, and to all those in the health policy and economics professions who will miss him dearly.

A fleet of driverless cars designed by Waymo, a project of Google’s parent company, Alphabet, is on the roads of Phoenix, Arizona. Last week, Waymo CEO John Krafcik announced that in the coming months the driverless cars will be part of the world’s first autonomous ride-hailing service. The recent news is a milestone in driverless car technology history, and it’s no exaggeration to claim that the technology behind these new cars has the potential to save hundreds of thousands – if not millions – of lives in the coming decades. Sadly, drones, another life-saving technology, have had a tougher time getting off the ground.

Waymo’s cars are not suddenly arriving on the scene. Google has been working on getting a driverless car on the road since 2009, and Waymo has been offering some lucky passengers in the Phoenix area rides since April. However, these cars had a driver at the wheel, just in case. The fleet now driving in Phoenix does not include safety drivers. 

This may prompt unease among some Phoenix residents. A clear majority of Americans are uncomfortable about getting into driverless cars. Yet human drivers are deadly. More than 90 percent of car crashes can be attributed to human error, and motor vehicle accidents killed an estimated 40,200 people on American roads last year.

Fortunately, the life-saving potential of driverless cars seems to have been a persuasive selling point to lawmakers and regulators. This is in part because of their massive unrealized benefits, but also because auto-safety regulators tend to allow car manufacturers to get their product on the market after certifying that they’re in compliance with safety standards, relying on recalls if and when safety standards are violated, as Ars Technica technology reporter Timothy Lee explained:

Another important factor is that auto-safety regulators have a tradition of being relatively deferential to car companies. Agencies like the Food and Drug Administration require companies to seek pre-market approval for their products. By contrast, the approach of the National Highway Traffic Safety Administration is to set out general guidelines requiring features like airbags and antilock brakes and then ask automakers to self-certify their compliance. NHTSA then relies on after-market recalls to deal with vehicles that turn out to be defective.

This approach creates a somewhat greater risk of defective products reaching the marketplace. But it also enables automakers to get potentially lifesaving innovations into the marketplace more quickly. And carmakers are large, bureaucratic organizations that have strong incentives to color inside the lines, so there’s not much reason to worry about small, fly-by-night manufacturers sneaking defective products into the marketplace.

We shouldn’t forget that the technology will improve lives as well as save them. For the elderly and the disabled, driverless technology offers the chance to vastly improve mobility. In fact, last year Google’s driverless car drove a blind man, Steve Mahan, in Austin. According to Mahan, “This is a hope of independence. These cars will change the life prospects of people such as myself. I want very much to become a member of the driving public again.” Parents with children busy with after-school activities will also undoubtedly benefit from the kind of driverless ride-hailing service Waymo plans to offer.

Driverless cars are not the only emerging technology that could save and improve lives. Sadly, however, these other products are governed by a tougher regulatory framework than that overseeing Waymo’s cars.   

Amazon’s experience with drones has been off to a difficult regulatory start. The Internet giant, which is interested in developing delivery drones, went to England to conduct its first drone-delivery test last year. This was despite the fact that Amazon CEO Jeff Bezos announced drone delivery plans as far back as 2013 and applied for permission from the Federal Aviation Administration (FAA) to test drones in 2014. That same year, the AP noted that other countries were outpacing the United States when it came to drone regulation:

The Federal Aviation Administration bars all commercial use of drones except for 13 companies that have been granted permits for limited operations. Permits for four of those companies were announced Wednesday, an hour before a hearing of the House Transportation and Infrastructure Committee’s aviation subcommittee. The four companies plan to use drones for aerial surveillance, construction site monitoring and oil rig flare stack inspections. The agency has received 167 requests for exemptions from commercial operators.  

Several European countries have granted commercial permits to more than a 1,000 drone operators for safety inspections of infrastructure, such as railroad tracks, or to support commercial agriculture, Gerald Dillingham of the Government Accountability Office testified. Australia has issued more than 180 permits to businesses engaged in aerial surveying, photography and other work, but limits the permits to drones weighing less than 5 pounds. And small, unmanned helicopters have been used to monitor and spray crops in Japan for more than a decade.

By the time the FAA approved Amazon’s drone it was already obsolete and out of date, with Amazon testing a more advanced drone. Amazon’s vice president of global public policy told the Senate Subcommittee on Aviation Operations, Safety, and Security in 2015, “Nowhere outside of the United States have we been required to wait more than one or two months to begin testing.”

Like driverless cars, drones are potentially life saving, with firefighters, emergency medical technicians, and building inspectors—among many others—standing to benefit from their use. Zipline, a California-based company that makes medical delivery drones, was founded in 2014. And yet, Zipline co-founder and chief executive Keller Rinaudo noted in August that, despite being based in California, Zipline had not flown any flights in the United States.

By September of this year, Zipline had flown “1,400 flights and delivered 2,600 units of blood” in rain and high winds in Rwanda.

Amazon Prime Air, by comparison, is much more restricted:

We are currently permitted to operate during daylight hours when there are low winds and good visibility, but not in rain, snow or icy conditions. Once we’ve gathered data to improve the safety and reliability of our systems and operations, we will expand the envelope. 

Fortunately, the Trump administration has taken steps to allow for a more innovative drone environment, last month launching a drone program that will allow local governments and companies to experiment with drones in a more relaxed regulatory environment.

Regulatory agencies should take an approach that allows companies to ask for forgiveness rather than permission, an approach laid out by Mercatus’ Adam Thierer in his book Permissionless Innovation. When it comes to the FAA and the Food and Drug Administration (FDA), for instance, the approach is the reverse. Almost four years ago, the FDA shut down the personal genome testing company 23andMe after it marketed its saliva collection kit “without marketing clearance or approval.” In its letter to 23andMe, the FDA did not cite any 23andMe customers who had complained about 23andMe’s product. 

It would be naive to think that there won’t be bumps in the road as more driverless cars take to the streets. For example, driverless cars could prompt regulatory fights between states and the federal government, although House and Senate driverless car legislation contain identical provisions that seek to address preemption concerns. There are also issues related to cybersecurity and insurance, but we shouldn’t forget that profit-maximizing firms have incentives to not kill or injure their customers.

Regulatory reform concerning new and emerging technology is long overdue. 3D printing, the “Internet of Things,” drones, driverless cars, and robotics, are only some of the exciting new technologies and fields that hold the potential to enrich and save lives. These benefits will be sooner realized if regulators set innovators free. The ubiquity of driverless cars won’t make the world perfect, but it will make the world better.

We often hear arguments that the World Trade Organization cannot handle an economy like China’s, with its heavy state intervention. Trade rules are just not up to this task, some people say. Here’s a recent example from a Wall Street Journal article entitled “How China Swallowed the WTO”:

Rather than fulfilling its mission of steering the Communist behemoth toward longstanding Western trading norms, the WTO instead stands accused of enabling Beijing’s state-directed mercantilism, in turn allowing China to flood the world with cheap exports while limiting foreign access to its own market.

“The WTO’s abject failure to address emerging problems caused by unfair practices from countries like China has put the U.S. at a great disadvantage,” Peter Navarro, a trade adviser to President Donald Trump, said in an interview.

China has a wide range of policies that make up its industrial policy, and we can’t address them all in a short blog post. However, we will describe one recent example, and explore briefly whether WTO rules can help. This is also from the WSJ:

Batteries have emerged as a critical front in China’s campaign to be the global leader in electric vehicles, but foreign auto makers and experts say it is rigging the market to favor domestic suppliers.

Tianjin Lishen Battery Co. here in eastern China recently agreed to sell its battery packs to Kia Motors for the EVs the South Korean company makes in China and is now in talks to supply General Motors, Mercedes-Benz and Volkswagen, a supervisor for the Chinese company said.

But that is largely because Tianjin Lishen has little foreign competition.

Foreign batteries aren’t banned in China, but auto makers must use ones from a government-approved list to qualify for generous EV subsidies. The Ministry of Industry and Information Technology’s list includes 57 manufacturers, all of them Chinese.

Foreign battery companies declined to discuss their absence. But analyst Mark Newman of Sanford C. Bernstein said the government has cited reasons such as paperwork errors to exclude foreign suppliers.

“They want to give their companies two to three years” without foreign competition to secure customers, achieve scale, and improve their technology, Mr. Newman said.

The ministry didn’t respond to questions.

So, if we accept the conventional wisdom, nothing can be done about this battery policy, right? There’s no way to prove that the policy is protectionist, so we just have to give up on the WTO as a solution here, right?

We disagree. In fact, the WTO has rules to deal with this exact kind of subtle, disguised protectionism. The WTO’s Agreement on Subsidies and Countervailing Measures prohibits subsidies that are contingent on the use of domestic goods, even where the contingency is not specified in law. If a complainant can show that the connection between the subsidies and the use of domestic goods exists on a de facto basis, the measure will be found in violation. Whether a challenge succeeds will depend on the specific facts of the case. In the electric vehicles example described above, the complainant could look for, inter alia, evidence that the electric vehicle companies which have received subsidies only use batteries on the government list, or that they switched to using the batteries on the lists after the lists were published. 

Of course, proving a case here is not going to be easy. A single WSJ article is not enough. The complainant will need to go gather some evidence and build its case. But that’s how litigation always works, and does not suggest any great flaw in the WTO.

The key point here is that what China is doing is not some novel approach to industrial policy that no one has ever seen before. Rather, it is classic protectionism that WTO litigation has handled for years. Governments do this sort of thing all the time, and many WTO cases deal with this exact kind of disguised protectionism. (As an example, in a 1999 decision examining whether certain Canadian subsidies to the aircraft industry were contingent on export, the WTO courts took into account “sixteen different factual elements” before concluding that the subsidies at issue violated the prohibition on export subsidies.) Thus, governments who are concerned with China’s policies should try to work within the WTO system to address their complaints.