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In the 1980s, there was concern regarding the endangered sea otter population in California, so Congress passed a law by which a group of otters would be relocated to an island off the coast where they might flourish. Congress was concerned, however, that the relocated otters might cause problems for the fishermen who made their living in those same waters, and so the legislation mandated that the agency in charge set up a management zone which would prevent the otters from damaging the fisheries. It also gave legal protection to well-meaning fishermen who accidentally caused the death of a sea otter—an accident which would otherwise have grave consequences under the Endangered Species Act.

The otters flourished, the fisheries were protected, and everything worked well enough for the next few decades—until some environmental groups convinced the federal government to remove the fisheries’ protections. Congress had balanced the interests at stake when crafting the legislation, but now the feds considered that balance inconvenient. The agency rescinded the fisheries’ regulation, yet left the otters in their new home. A number of groups that depend on the fisheries were nonplussed by this change, and filed a lawsuit.

Under existing Supreme Court precedent, when agencies interpret the statutes for which they are responsible, courts grant them what is known as Chevron deference. This framework has two steps: first, the court asks whether the language of the statute is ambiguous; if it is, the court then asks whether the agency’s interpretation is anything but “arbitrary and capricious.” In other words, the agency doesn’t have to be right, but it can’t be crazy. But this framework is predicated on a text that the court can examine to judge the clarity or lack thereof. Here the statute says nothing about the circumstances whereby the fisheries protection can be rescinded; it says only that the agency must issue it.

The U.S. Court of Appeals for the Ninth Circuit didn’t care about the legal niceties. It declared that Chevron applies not only to unclear congressional commands, but to congressional silence. If the statute doesn’t say the agency can’t  do something, they court will defer to the agency’ judgement as long as it is a “reasonable policy choice.” The plaintiffs have now filed a petition asking the Supreme Court to take up their case and reject the extension of Chevron from mere ambiguity to silence.

The Cato Institute, joined by the Goldwater Institute and Cause of Action Institute, filed a brief in support of the petition. We argue that Congress alone has authority to authorize federal action. If there is no express grant of authority, then the agency is by definition not empowered to act. Allowing agencies to make up their own rules anytime Congress has neglected to preempt them would run afoul of the principles of “nondelegation,” a constitutional doctrine that holds that it is Congress that legislates, not the executive branch.

We urge the Court to take up California Sea Urchin Commission v. Combs and put a stop to this perfunctory rubber-stamping of the unaccountable administrative state.

A persistent myth surrounding the ongoing Syrian refugee crisis is that the wealthy Gulf States are not sponsoring Syrian refugees.  As I wrote in late 2015, the Gulf States did not host refugees but they were sponsoring almost 1.4 million Syrian emigrants in 2013 – about a million more than they were sponsoring in 2010 before the Syrian civil war began.  The recently released World Bank bilateral migration index for 2017 shows that Gulf Countries are still sponsoring about 1.2 million Syrians, a 12 percent decline relative to 2013 (Table 1).

Table 1: Syrians Living in Gulf States

These Syrians are technically not “refugees” because Saudi Arabia and the other Gulf States are not signatories to the 1951 UNHCR convention that created the modern international refugee system. Statements by government spokesmen in the Gulf States confirm that they have taken in large numbers of “Arab brothers and sisters in distress,” but that they do not abide by international law governing refugees. In many cases, these government extended work and residency permits to Syrians who were already there when the civil war began in 2011, allowed them to bring their families, and then permitted other Syrians to join them.

The total number of Syrians in the Gulf States declined by 12 percent from 2013 to 2017 but their share of all Syrians living outside of their home country more than halved. The number of Syrians living outside of Syria in 2017 increased by 96 percent over 2013, from about 3.9 million to 7.8 million (Table 2). About 82 percent of the global increase in the number of Syrian emigrants from 2013 to 2017 settled in Turkey and Lebanon. A full 88 percent of all Syrians who left Syria from 2010 to 2017 settled in other Middle Eastern countries. Of all Syrian emigrants globally, 85 percent living in the Middle East (Figure 1).

Table 2: Syrians Living in Other Middle Eastern Countries
Copy: Figure 1: Where Syrians Emigrants Are Living

Every additional Syrian emigrant living in the Gulf States is one fewer potential refugee elsewhere. Although the Gulf States have cut the number of Syrians living there since 2013, they are still housing over 1.2 million. The mere fact that the Gulf States have allowed large numbers of Syrians to live in their territory has helped relieve the humanitarian crisis somewhat. As much criticism as we can heap on the Gulf States for other issues, at least they allowed many Syrians to live there during the worst years of the Syrian civil war.

Several media reports citing the U.S. intelligence community and arms control experts indicate that North Korea has upgraded its infrastructure for building nuclear weapons and ballistic missiles in recent months. The revelations counteract Trump’s optimistic tweet that “There is no longer a Nuclear Threat [sic] from North Korea” following his summit with Kim Jong Un last month.

The United States should not be surprised by these developments. The Trump-Kim summit was not the culmination of a long, arduous diplomatic process as most summits are, but a high-profile meeting that had far more symbolic value than nitty-gritty arms control substance. This was the expected outcome given the short period of time to prepare for the summit and the fact that it almost fell apart just a few weeks before it happened. Additionally, Kim made no pledge to halt construction of ballistic missiles, fissile material, or related infrastructure, and it isn’t surprising that he would want to keep expanding these capabilities until it is necessary to give them up.

Concessions made by Washington and Pyongyang have built some trust and momentum for diplomacy, but this is not sufficient to achieve denuclearization. Looking ahead, U.S. negotiators should take these recent revelations seriously and press Pyongyang to reveal more information about its nuclear and missile infrastructure. The United States should also demand that North Korea allow inspectors to keep tabs on nuclear and missile facilities and verify North Korean compliance with promises to dismantle facilities as negotiations progress. Creating a robust inspection and verification regime is a necessary step to ensure that North Korea is living up to its rhetoric and taking steps toward denuclearization.

The recent revelations should also be a sobering reminder for the Trump administration that it has a long road ahead. Denuclearization is possible, but getting there will require years of careful diplomacy that fundamentally transforms the nature of U.S.-North Korea relations. The administration should disabuse itself of the notion that denuclearization will be achieved quickly and easily. The history of U.S.-North Korea relations is replete with diplomatic initiatives that failed and dashed the optimism that accompanied their announcements. Trump and his senior officials should not get ahead of themselves in declaring victory when so much work needs to be done.

While the recent revelations should curb the Trump administration’s enthusiasm, it would be unwise to conclude that diplomatic engagement with North Korea is doomed to fail. There is still value to talking with the North even if they are hiding nuclear enrichment activities and building ballistic missiles. The United States should keep up its nuclear intelligence efforts as it negotiates with Pyongyang to put together a complete picture of the North’s nuclear enterprise and verify if the North is complying with the agreements it makes. Good intelligence is an essential part of effective diplomacy and should be conducted in concert with negotiations.

The Trump administration should take Pyongyang’s efforts to conceal nuclear activity and expand its missile production capacity seriously. The Singapore summit was the start of a long process and problems like this are to be expected, especially in the early stages of talks. The Trump administration needs to set realistic goals and expectations, maintain a watchful eye over Kim’s nuclear facilities, and push for a rigorous inspection regime at the negotiating table. The photo ops are over. Time for the real work to begin.

If government is going to establish public schools, which must be secular, the U.S. Constitution requires that it also provide school choice for religious Americans. So argued Corey DeAngelis and I last week in a Detroit News op-ed, and it’s something you might mull over this 4th of July as you watch over your grilling burgers or, hopefully, even more satisfying smoked brisket or bacon-wrapped hot dogs. (It’s always a good time to raise your outdoor cooking game!) Government must not inculcate religious beliefs, but it also must not elevate non-belief over religion, hence the need for choice.

If you want to seriously grapple with this and have a fair amount time tomorrow between firing up some savory dishes and sparking some dazzling fireworks, read this 2013 Florida Law Review article by Northwestern University law professor Steven Calabresi and attorney Abe Salander. It lays out in great legal detail how equal protection under the law demands equal access to education consistent with one’s values, religious and non-religious alike.

Write Calabresi and Salander, “states discriminate on the basis of religion when they administer secular private schools that are unpalatable to religious individuals and that are funded with taxpayer dollars….religious students are effectively excluded by the character of the public schools, and general atmosphere of public schools.”

If you don’t want to tax yourself—it will be the 4th of July, after all—with too much heavy legal reading, maybe this grilling-relevant analogy will kindle some thoughts. Suppose you love hamburgers (or brisket!) and the government promised neutrality regarding what meat people eat. Then suppose legislators passed a law spending tax dollars to feed everyone, but only on vegetables so as not to favor a meat. What kind of neutrality would that be? The kind that elevates vegetarians over all meat eaters, de facto rendering the latter second-class citizens. Secular public schooling absent school choice does the same, only unlike food, education deals with nothing less than the development of human minds!

None of this, of course, is to say that veggies should have no place on your grill tomorrow. They can be delicious. But favoring them to the exclusion of burgers, brisket, and dogs would be, well, un-American.

As The Wall Street Journal, The New York Times, and several other news outlets reported recently, although it has managed to avoid setting off another taper tantrum like that of 2013, the Fed is having a bad case of unwind jitters, thanks to unanticipated tightening in the market for fed funds.

That tightening has manifested itself in a considerable narrowing, since the Fed began unwinding in late October 2017, of the gap between the Fed’s IOER rate and the “effective federal funds” (EFF) rate — meaning the actual rate banks have had to pay other banks, or GSEs with Fed accounts, for unsecured, overnight funds.

In effect the narrowing IOER-EFF gap means that the Fed’s recent IOER rate hikes have ended up being more potent than was expected. As a step toward addressing the problem, the FOMC at its last meeting decided to redefine its funds rate target range upper limit. Now, instead of being equal to the going IOER rate, the upper limit is defined as the IOER rate plus 5 basis points. By itself the new definition is the sheerest of window dressings. But because the Fed, which had been contemplating raising its IOER rate to 200 basis points, could now raise it to just 195 basis points, whilst still sticking to its original rate move, as defined by the upper and lower bounds of its rate target range, the change marked a slight retreat from the Fed’s original tightening plans.

That the Fed risked over-tightening if it adhered to its original normalization plans is something Heritage’s Norbert Michel and I warned about, in an American Banker op-ed, a little over a year ago. “If the Fed keeps paying banks not to lend at the same time it starts slimming its balance sheet,” we said, “we could be in for very tight money.” That’s because the Fed’s plans called for it to  shrink its balance sheet at a predetermined rate, while also adhering to a schedule of rate hikes aimed at re-establishing a supposedly “normal” effective funds rate sometime in 2019. Last May the Fed anticipated getting the funds rate back to 3 percent; since then it has lowered that goal to 2.8 percent.

That raising the IOER rate tightens money is obvious enough. But why, in a system in which banks hold trillions of dollars in excess reserves, should shrinking the Fed’s balance sheet itself lead to further tightening? The short answer is that, instead of being spread evenly throughout the banking system, excess reserves have mostly piled-up in a small number of very large banks, and especially in a handful of foreign banks with U.S. branches. For various reasons these banks find the return on reserve balances especially attractive compared to what they might earn by parting with those reserves. When the Fed was gobbling-up assets, these banks were gobbling-up reserves, thereby keeping them from contributing to any general increase in lending.

Now that the Fed has begun selling assets in order to buy-back reserves, the same IOER payments that encouraged certain banks to hoard reserves in the first place are discouraging them from parting with them. Instead, banks that held relatively small reserve cushions are choosing to swap reserves for other assets, and to rely more on federal funds to stay liquid. That means competing harder for a relatively small pool of fed funds, now supplied exclusively by GSEs, and driving the fed funds rate up closer to the IOER rate. (That the EFF rate never goes noticeably above the IOER rate is easily explained by the fact that the supply of fed funds becomes highly elastic at rates at or above the IOER rate, for such rates will convince even the most aggressive reserve hoarders to disgorge reserves.)

The question remains whether, and how, the new circumstances will alter the Fed’s future plans. Should money market conditions continue to tighten, Fed officials will face two options. One is to reduce their planned IOER rate increases, either by reducing their announced target range increases or by further increasing the difference between the IOER rate and the range’s upper limit. The other is to renege on their promised balance sheet unwind.

Not surprisingly, Fed officials appear increasingly inclined to take the latter course, and to thereby abandon a large chunk of their long-promised normalization plan. As the NYT reported,

That narrowing gap between the federal funds rate and the interest on excess reserves, or IOER, has stoked a debate over whether the Fed’s reduction of its massive bond holdings, which started in October 2017, has made it more expensive for banks to borrow excess reserves to meet regulatory requirements or fund their daily needs, analysts said.

This outcome was also one I predicted a while ago. In a March working paper version of Floored!, my forthcoming book-length critique of the Fed’s post-crisis operating system, I wrote that

the Fed’s determination to raise its policy rate (or rates) to a preconceived “normal” level, and to do so within a relatively rapid span of time, seems imprudent, and may, if pursued obstinately, ultimately cause it to further delay its planned balance sheet reduction, or even to abandon it altogether.

Of course, the Fed could easily stick to, or even hasten, its balance-sheet unwind, while still providing for a plentiful supply of federal funds, by lowering its IOER rate enough, relative to other market rates, to encourage the handful of banks now holding 90 percent of all excess reserves to part with them. But that would mean abandoning the Fed’s “floor” operating system, and establishing a “corridor” system in its place. Alas, whether its because they subscribe to some dubious Fed economics or for other reasons, most Fed officials seem unwilling to entertain such a switch — despite having once planned on it, and despite the well-established advantages of corridor systems, and their corresponding worldwide popularity.

It may yet be possible to change those officials’ minds. Let’s hope so. For if not, as I warned in a previous post, the day may not be far off when Mr. Powell finds himself transformed into the world’s first Six Trillion Dollar central banker. That is perhaps a burden he’s willing to bear. But it shouldn’t be one we’re willing to assign, to him or to any other mortal.

[Cross-posted from Alt-M.org]

Is an “excessive” fine constitutional if it’s levied against someone other than a human being? According to the Colorado Department of Labor and Employment, yes it is.

Mrs. Soon Pak manages Dami Hospitality, LLC, a company that runs hotels and motels in Colorado. Pak is a Korean immigrant with minimal proficiency in English. She relies on third-party professionals to assist her in maintaining compliance with the myriad of regulations that even native English speakers struggle to understand. Between 2006 and 2014, Dami’s insurance agent failed to renew the company’s worker’s compensation insurance, despite assuring Pak that Dami maintained full coverage.

In 2014, the Labor Department gave notice that Dami’s policy had lapsed, and Pak immediately secured coverage. A few weeks later, the Department imposed a fine of $841,200, including daily penalties the Department had allowed to accumulate for a full eight years before finally giving notice to the company. Put simply, the Department assessed nearly a million-dollar fine against a small corporation—which grosses less than a quarter of the total fine—for a violation that was solved immediately after notice was received, with no actual harm done to anyone. This fine is clearly excessive compared to Dami’s violation. To frame it in the worker’s comp context, if an employee is killed on a job, his dependent receives $250,000. That means the Department considers the results of Dami’s lazy insurance agent to be worse than three workplace fatalities.

We disagree. Unwilling to acquiesce to an attempt to justify excessive fines, Cato and the Independence Institute filed an amicus brief in support of Dami before the Colorado Supreme Court, to which the state had taken the case after the Colorado Court of Appeals set aside the fine as unconstitutionally excessive under the Eighth Amendment.

The Department argues that corporations have no Eighth Amendment protection, but this provision an absolute limit on what the government can do. There is no loophole that empowers a government bureau to impose excessive fines on selected defendants due to their organizational structure.

Regardless of who it is assessed against, no government has the lawful power to impose an excessive fine. By arguing that the Excessive Fines Clause can never apply to corporations, the Department is literally claiming the power to fine corporations excessively. The result would be contrary to our constitutional heritage, which comes from historical experience that governments with the power to impose excessive fines harm both people and the rule of law. Imposing an admittedly excessive fine would be a danger to the rule of law, ratifying the state’s ability to ruin persons who do not deserve to be ruined, by definition. The danger of such excessive power does not vanish because their targets have chosen to associate in a corporation. Any fine that is “excessive” necessarily exceeds the powers the people granted to a government bound by the law.

Any day now, the Trump administration will release a final rule allowing greater consumer protections in so-called “short-term, limited duration insurance,” a category of health insurance Congress exempts from federal health insurance regulations, including ObamaCare regulations. In 2016, the Obama administration arbitrarily prohibited certain consumer protections in these plans. It shortened the maximum duration from 12 months to 3 months; state insurance regulators complained this exposes sick consumers to underwriting and loss of coverage. It likewise prohibited “renewal guarantees” that could protect consumers who develp expensive illnesses from ever facing underwriting or losing their coverage. Last year, President Trump urged the Department of Health and Human Services to allow short-term plans to last 12 months and to allow consumers to bridge together consecutive short-term plans with “renewal guarantees” that protect them from being re-underwritten after they get sick. 

In comments I filed on the proposed version of the Trump administration’s rule and an accompanying Wall Street Journal oped, I explained some of the benefits of allowing these consumer protections. As ObamaCare premiums have been soaring and the consulting firm Avalere finds “substantial increases” in ObamaCare premiums for 2019, I wrote that these consumer protections would mean “consumers could purchase health-insurance protection for 90% less than the cost of the average ObamaCare plan.“ Renewal guarantees could also keep people with expensive conditions out of ObamaCare plans, thereby improving ObamaCare’s pools and reducing the cost of the law. Along the way, it would “increas[e] transparency in government and provid[e] voters and policymakers with better information about the cost of the ACA.” Thirty-five senators sent a letter to the Trump administration citing my regulatory comments and urging the administration to implement both changes.

My comments did not cover all the benefits of these consumer protections, however. What follows is updated and new infomation about the benefits of those changes.

Critics Agree: Expanding Short-Term Plans Would Cover More Americans

The American Action Forum has a roundup of economic projections of the impact of the proposed changes. Every organization that has modeled these changes, including those that oppose these changes, has found they would increase the number of Americans with health insurance.

These projections indicate expanding short-term plans would produce significant social-welfare gains. The Urban Institute, for example, projects 2.2 million consumers would leave ObamaCare plans for short-term plans because they would “prefer STLD to ACA-compliant plans,” which suggests a large increase in consumer welfare. Similar welfare gains would result from as many as 1.7 million previously uninsured Americans enrolling in short-term plans with the proposed consumer protections.

Protecting Conscience Rights

An often-overlooked benefit of allowing these consumer protections in short-term plans is they would free more consumers to avoid coverage they do not want, including coverage that may violate their religious convictions.

As Susan Marquis and colleagues note, “Purchasers derive value from having the range of choices that the individual market offers.” The range of health insurance choices will expand, and consumer welfare will increase, if the Trump administration allows short-term plans to last 12 months and offer renewal guarantees.

The fact that short-term plan premiums are lower than ObamaCare premiums for the vast majority of consumers because they often exclude such coverage captures much of this benefit. But there are additional welfare gains that premium levels do not capture, including those that come from freeing consumers to purchase coverage consistent with their views on contraception.

ObamaCare requires all health insurance plans to cover all FDA-approved forms of birth control. This requirement forces devout Catholics and others to choose between going without health insurance or paying to support a practice they believe is an offense against God. The Trump administration has taken steps that allow protect conscience rights for some employers. But these changes do not protect all employers, much less all consumers.

Short-term plans, however, are exempt from ObamaCare’s contraceptives mandate. Allowing short-term plans to offer 12-month terms and renewal guarantees would give Catholics and others full freedom to purchase secure health insurance without violating their their religious beliefs. A world of wanted coverage would make a world of difference.

Improving ObamaCare’s Risk Pools

Finally, renewal guarantees would improve ObamaCare’s risk pools by keeping potentially millions of patients who develop expensive conditions out of those risk pools.

There is a sizeable if underappreciated literature showing that renewal guarantees provide secure coverage to patients even after they develop expensive medical conditions. In “Guaranteed Renewability in Insurance” (Journal of Risk and Uncertainty, 1995), Mark Pauly, Howard Kunreuther, and Richard Hirth explain how renewal guarantees can provide patients secure insurance protection even after they get sick: 

Insurances of many types typically cover some risk for a limited time period. For instance, health insurance contracts conventionally provide coverage against loss for a year, although longer and shorter terms are possible. Over that time period, the premium is known with certainty. At the beginning of the next period, however, the factors which determine the level of the premium that an insurance purchaser is charged may change…

In the case of individual health insurance, for example, the discovery of an indicator of chronic disease can cause a person’s insurance premiums to jump substantially…

Effectively, [with a renewal guarantee,] the consumers initially prepay enough premiums to cover the excess losses of everyone who becomes a high risk.

In “Incentive-Compatible Guaranteed Renewable Health Insurance Premiums” (Journal of Health Economics, 2006), Bradley Herring and Mark Pauly explain: 

A person initially in good health who develops a chronic illness may expect to have above-average expenses in subsequent years. If the annual insurance premium is set proportional to expected expense in each year, someone who contracts a multi-year condition would face a substantial and unexpected jump in premiums—something public policy finds undesirable and something which a risk-averse person would prefer to avoid. A potential solution to this problem is for the insurance policy purchased when the individual is still in good health to contain a guaranteed renewability (GR) provision which stipulates that no insured’s future premium for the given policy will increase more than any other insured’s premium increases. Thus, people who unexpectedly become high-risk will pay the same premium as those who remain low-risk.

See also John Cochrane, “Time-Consistent Health Insurance” (Journal of Political Economy, 1995).

Researchers have found considerable evidence that, prior to ObamaCare, widespread renewal guarantees in the individual market did indeed provide secure, long-term insurance for those who develop expensive illnesses. In “Pooling Health Insurance Risks” (American Enterprise Institute, 1999), Pauly and Herring found that renewal guarantees make premiums affordable for high-cost patients: 

The overarching message from these data is that nongroup premiums do vary with risk, but not nearly as strongly as would be consistent with vigorous risk rating. Perhaps more important, they do not vary at all with risk as measured by chronic conditions…This is not to deny that some people pay very high premiums for their coverage, and that some of the people who do so are high risks. Apparently, however, many high risks do not pay higher-than-average nongroup premiums.

In “Individual Versus Job-Based Health Insurance: Weighing The Pros And Cons” (Health Affairs, 1999), Mark Pauly, Allison Percy, and Bradley Herring write:

In other words, there was substantial cross-subsidization of high-risk by low-risk persons in the individual insurance market in a period in which there was only minimalstate regulation. Premiums do rise with risk, but the increase in premiums is only about 15 percent of the increase in risk. Premiums for individual insurance vary widely, but that variation is not very strongly related to the level of risk.

From an economic viewpoint, the main problem with risk rating is…that the occurrence of an extended illness may subject buyers to the risk that their premium may jump, potentially by several multiples. While a thousand-dollar jump in one’s annual premium may seem trivial compared with the high medical bills the insurance will cover, risk-averse persons would prefer to avoid it. There is a simple way to do so: Buy insurance when healthy but pay extra for guaranteed renewability or protection from cancellation.

The evidence indicates that even before the Health Insurance Portability and Accountability Act (HIPAA) became effective in 1997, the majority of individual policies contained this feature. The intent of guaranteed renewability can be circumvented (for example, by canceling all policies in a class), but it usually is not, for the obvious reason that sale of this feature requires that it be effective most of the time…In recent years some states have required guaranteed renewability, but it is apparent that this was a common feature of individual (not small-group) policies even before it was required. The presence of guaranteed renewability may account in part for the moderate increase in paid premiums with risk, noted earlier.

In “How Private Health Insurance Pools Risk” (NBER Reporter, 2005), Pauly writes:

Although there have been some anecdotes about insurers slipping out of their policy provision to renew coverage at group average premiums for high risks by canceling the coverage entirely, we conclude that on average guaranteed renewability works in practice as it should in theory and provides a substantial amount of protection against high premiums to those high risk individuals who bought insurance before their risk levels changed. The implication is that, although there are some anecdotes about individual insurers trying to avoid covering people who become high risk (for example, by canceling coverage for a whole class of purchasers), the data on actual premium-risk relationships strongly suggest that such attempts to limit risk pooling are the exception rather than the rule.

Indeed, Pauly concludes, guaranteed renewability does such a good job at protecting the sick from higher premiums, regulations that prohibit charging higher premiums to the sick (i.e., community rating) doesn’t change much:

We find that regulation modestly tempers the (already-small) relationship of premium to risk, and leads to a slight increase in the relative probability that high-risk people will obtain individual coverage. However, we also find that the increase in overall premiums from community rating slightly reduces the total number of people buying insurance. All of the effects of regulation are quite small, though. We conjecture that the reason for the minimal impact is that guaranteed renewability already accomplishes a large part of effective risk averaging (without the regulatory burden), so additional regulation has little left to change.

In “Consumer Decision Making in the Individual Health Insurance Market” (Health Affairs, 2006), Susan Marquis et al. find renewal guarantees made the individual market “a source of long-term coverage for a large share of subscribers.” This occurs because enrollees who purchase coverage and then later become sick “are not placed in a new underwriting class.” The authors attribute this to renewal guarantees: “We also find that there is substantial pooling in the individual market and that it increases over time because people who become sick can continue coverage without new underwriting.” The authors also found that, despite underwriting, “a large number of people with health problems d[id] obtain coverage” in the individual market pre-ObamaCare. The authors conclude:

Our analysis confirms earlier studies’ findings that there is considerable risk pooling in the individual market and that high risks are not charged premiums that fully reflect their higher risk. Moreover, guaranteed renewal and underwriting only at initial enrollment appear to help promote pooling to some extent, and they protect subscribers from financial consequences associated with changes in their health status.

In “Risk Pooling and Regulation: Policy And Reality in Today’s Individual Health Insurance Market” (Health Affairs, 2007), Pauly and Herring found that as a result of renewal guarantees:

Analysis of new data on the relationship between and premiums and coverage in the individual insurance market and health risk shows that actual premiums paid for individual insurance are much less than proportional to risk, and risk levels have a small effect on obtaining coverage. States limiting risk rating in individual insurance display lower premiums for high risks than other states, but such rate regulation leads to an increase in the total number of uninsured people. The effect on risk pooling is small because of the large amount of risk pooling in unregulated [i.e., guaranteed-renewable] individual insurance…

As the MEPS data show, the predicted high risks (above the median) had both high expected expenses (before the fact) and high actual expenses (after the fact); they were roughly four times higher compared with the bottom half. But the premiums that higher-risk people actually paid were only, on average, about 1.6 times those of lower-risk people…At least half of their higher expected expense appears to be pooled, even in the individual market…

Premiums were definitely far from proportional to risk, so there was a substantial amount of risk pooling present…Although in these data people of a given age and sex with chronic health conditions paid higher premiums than people without such conditions, individual insurance, through guaranteed renewability or some other device, pooled 84.5–88.5 percent of the risk…

Yet again in “Incentive-Compatible Guaranteed Renewable Health Insurance Premiums” (Journal of Health Economics, 2006), Herring and Pauly find “evidence that guaranteed renewability provisions appear to be effective in providing protection against reclassification risks in individual health insurance markets.”

Perhaps the strongest evidence that renewal guarantees will keep high-cost patients out of ObamaCare’s risk pools comes from “How Risky Is Individual Health Insurance?” (Health Affairs, 2008), in which Mark Pauly and Robert Lieberthal find that guaranteed-renewable, individual-market insurance often does a better job than employer-sponsored insurance of providing secure coverage to patients with high-cost illnesses. As the below graph shows, high-cost patients with guaranteed-renewable coverage are roughly half as likely to end up uninsured as high-cost patients with small-group coverage.

The more high-cost patients that renewal guarantees can keep from becoming losing their non-ObamaCare plans–including, as I discuss in my regulatory comments and Wall Street Journal oped, those enrolled in employer plans–the more stable and less costly ObamaCare will be.

Conclusion 

Giving consumers the choice of purchasing renewal guarantees, either in conjunction with a short-term plan or as a standalone product protecting enrollees from underwriting in that market, would produce significant benefits well in excess of any costs. It would increase the number of Americans with health insurance, allow Americans to purchase insurance that respects their religious beliefs, and improve ObamaCare’s risk pools.

A fair reading of Food and Drug Administration Commissioner Scott Gottlieb’s “Sunday Tweetorial” on the opioid overdose crisis leaves one simultaneously encouraged and frustrated. 

First the encouraging news. The Commissioner admits that the so-called epidemic of opioid overdoses has “evolved” from one “mostly involving [diverted] prescription drugs to one that’s increasingly fueled by illicit substances being purchased online or off the street.” Most encouraging was this passage:  

Even as lawful prescribing of opioids is declining, we’re seeing large increases in deaths from accidental drug overdoses as people turn to dangerous street drugs like heroin and synthetic opioids like fentanyl. Illegal online pharmacies, drug dealers and other bad actors are increasingly using the Internet to further their illicit distribution of opioids, where their risk of detection and the likelihood of repercussions are seen by criminals as significantly reduced.

As I have written here and here, the overdose crisis has always been primarily caused by non-medical users accessing drugs in a dangerous black market fueled by drug prohibition. As government interventions have made it more expensive and difficult to obtain diverted prescription opioids for non-medical use, the black market responds efficiently by filling the void with heroin, illicit fentanyl (there is a difference) and fentanyl analogs. So policies aimed at curtailing doctors’ prescriptions of opioids to patients only serve to drive up deaths from these more dangerous substitutes, while causing patients to suffer needlessly, sometimes desperately, in pain. Gottlieb validates my argument in his “tweetorial,” providing data from the Centers for Disease Control and Prevention and the Drug Enforcement Administration. 

Now for the frustrating news. Gottlieb next reminds us, “No controlled substances, including opioids, can be lawfully sold or offered to be sold online. There is no gray area here.” He provides evidence of rampant illegal internet marketing of prescription opioids, with 95 percent of internet pharmacy websites selling opioids without a prescription, often conducting transactions with cryptocurrencies, and shipping these orders “virtually anywhere in the US.” This is also the way illicit fentanyl is flooding the market. 

Gottlieb states, 

Senate investigators found hundreds of transactions in more than 40 states, adding up to more than $750 million worth of fentanyl by its street value, from just six online sellers, resulting in several deaths. People are increasingly going online to illegally buy drugs like Vicodin or Percocet, but we believe they are often unknowingly getting pressed fentanyl – sometimes at lethal doses – given the lower cost and greater profitability of fentanyl for drug trafficking organizations 

So, Gottlieb provides more evidence that fighting the war on drugs is worse than a costly exercise in futility—it is the major cause of opioid overdose deaths in the US.  But does he suggest a reassessment of America’s longest war? Does he cite the success Portugal has had in saving lives while reducing substance abuse since it decriminalized all drugs in 2001? Does he propose redirecting opioid policies away from the number of pills doctors prescribe and toward an emphasis on harm reduction

No. Instead the Commissioner announces that the FDA is “increasing enforcement activities to crack down on the illegal sale of opioids, particularly drugs sold online and typically shipped through the mail.”  This week the FDA is convening “internet stakeholders” to help find new ways to crack down on illegally operated internet sites. In other words, more of the same.

Therein lies the frustration. It seems as if Dr. Gottlieb understands what is really behind the overdose crisis and that the present approach is misguided and is exacerbating matters. But he has yet to muster the will to challenge the prevailing narrative reverberating around policymakers. Hopefully, he will take that next step sometime soon. Until he does, don’t expect the death rate to slow.

In a page-one piece in yesterday’s New York Times, Supreme Court reporter Adam Liptak offered up a generally even-handed account, misleadingly headlined “How Conservatives Weaponized the First Amendment,” about how liberals and the left have increasingly abandoned the First Amendment’s protection of free speech. No less than Justice Elena Kagan invoked the weaponizing charge on the Court’s last day last week when she dissented vigorously from the Court’s decision that Illinois could no longer compel a public-sector non-union member to support union activity he opposed. “There is no sugarcoating today’s opinion,” she wrote.

[I]t prevents the American people, acting through their state and local officials, from making important choices about workplace governance. And it does so by weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.

Only the day before, Justice Kagan objected similarly to the Court’s rejection of a California law that required religiously oriented “crisis pregnancy centers” to provide information to women about abortion options.

Like conservatives of old—Robert Bork argued that “constitutional protection should be accorded only to speech that is explicitly political”—many on the left today would allow a wide birth to legislatures to restrict speech, especially where they see it as harmful to interests they support—unions, as here, women (pornography), democracy (corporate campaign contributions), minorities (white supremacist marches), and, more broadly, consumers (commercial speech).

In a piece worth reading, Liptak points to areas where conservative judges have protected speech they abhor: violent video games, lies about military awards, and more. And he nicely captures the rationale for the shift on the left with a quote from Georgetown Law’s Michael Seidman:

When I was younger, I had more of the standard liberal view of civil liberties. I’ve gradually changed my mind about it. What I have come to see is that it’s a mistake to think of free speech as an effective means to accomplish a more just society.

Free speech as a means [toward progressive ends], not as an end in itself. Just which side today would weaponize the First Amendment?

Do arms sales cause war? Or do wars cause arms sales? Critics of arms sales often argue that selling weapons abroad fuels conflict. And indeed, one can point to one or more sides using American weapons in many recent conflicts including Syria, Yemen, and Iraq. Skeptics argue, on the other hand, that weapons don’t start the fire and that conflicts would arise whether or arms exporters like the United States sell weapons abroad.

The debate has important implications for foreign policy. If selling or transferring weapons abroad makes conflict more likely, or intensifies conflicts already in process, then the United States should rethink its long-held policy of selling weapons to pretty much any nation that wants them. If, on the other hand, arms sales have no impact on conflict or make conflict less likely, then the Trump administration’s intention of expanding arms sales should be seen as a positive move. 

As it turns out, several academic studies have looked at this question. The primary conclusion of these works is that although arms sales do not create conflicts out of thin air, they do make conflict more likely when the conditions for conflict are already present.

The basic logic behind this conclusion is fairly straightforward and has been noted in the academic literature for some time. In a 1998 article, “Arms Transfer Dependence and Foreign Policy Conflict,” David Kinsella argues that states that enjoy a steady flow of arms – especially from multiple countries – tend to pursue more aggressive foreign policies. The increase in the recipient’s military capability makes victory in a potential conflict more likely, which in turn raises the likelihood that the state will start disputes, demand concessions from its neighbors in those disputes, and to escalate to conflict if negotiations fail to produce the desired outcome. Using case studies from Israel, Egypt, Syria, Iran, Iraq, India, Pakistan, Ethiopia, and Somalia Kinsella finds that, when a country has more than one weapons supplier, arms sales drastically increase the chances of conflict.

In their 2002 article, “The Arms Trade and the Incidence of Political Violence in Sub-Saharan Africa, 1967-97,” Cassady Craft and Joseph Smaldone identify another mechanism by which arms sales can fuel conflict. They find that autocratic governments importing weapons are more likely to use those weapons to oppress/mistreat/kill their own citizens since they now have a greater coercive capability.

But despite the straightforward logic behind the arms sales/conflict connection, most work on the topic to date has relied on case studies, which are wonderful for highlighting potential causal mechanisms but not much use for establishing whether those mechanisms hold across the time and space. Until recently there had not been any work using statistical methods that would allow scholars to state with confidence which direction the causal mechanism actually flows – that is, do arms sales precede conflict or do impending conflicts lead to increased arms sales? Happily, the most recent article on arms sales by Oliver Pamp and his colleagues in the January 2018 issue of the Journal of Peace Research entitled, “The Build-Up of Coercive Capacities: Arms Imports and the Outbreak of Violent Intrastate Conflict,” uses a simultaneous equations model to overcome this problem. Looking at the relationship between arms sales and the outbreak of civil conflicts, the authors confirm the general thrust of previous research, concluding that:

“…while arms imports are not a genuine cause of intrastate conflicts, they significantly increase the probability of an onset in countries where conditions are notoriously conducive to conflict. In such situations, arms are not an effective deterrent but rather spark conflict escalation.”

This new confidence in the arms sales/conflict connection should compel serious revision to American arms sales policies. Since 2002 the United States has sold over $286 billion dollars of weapons to 167 countries. These exports have gone to numerous countries where the conditions were or remain ripe for conflict. U.S. arms transfers to an unstable Iraq preceded the emergence of the Islamic State, but wound up helping amplify the Islamic State’s military capability when it took vast quantities of American weapons from defeated Iraqi army units. U.S. arms sales over the past decade also helped prepare Saudi Arabia to launch its disastrous intervention in Yemen and enabled the Nigerian government to unleash more effective violence on its own citizens, just to list a few examples.

Academic research often gets a bad rap in policy making circles. In the case of arms sales and arms transfers, however, the scholarly literature has correctly pointed out the serious risks involved. If the United States is serious about preventing conflict and managing regional stability in trouble spots around the globe, it would do well to stop pouring gas on the fire.

This blog post was written with help from Jordan Cohen, a Ph.D. student in political science at the Schar School of Policy and Government at George Mason University.

The abolish ICE movement is spreading among mostly left-wing activists and politicians after the revelation of mass family separations along the U.S. border.  Immigration and Customs Enforcement (ICE) is the federal agency charged with enforcing immigration laws in the interior of the United States, not along the border, but public anger is focusing on them regardless.  Senator Elizabeth Warren (D-MA) said, “The president’s deeply immoral actions have made it obvious we need to rebuild our immigration system from top to bottom starting by replacing ICE with something that reflects our morality and that works.”  Senator Kirsten Gillibrand (D-NY) said, “I believe you should get rid of it, start over, reimagine it and build something that actually works.”

Many are attempting to portray the abolish ICE movement as a shadow campaign for open borders but, as those statements above show, it is largely political grandstanding without much substance yet.  Senator Richard Blumenthal (D-CT) is correct that abolishing ICE without changing policies wouldn’t accomplish much.  ICE was established in 2003 under the Department of Homeland Security (DHS) as part of the government’s post-9/11 reorganization.  The government deported illegal immigrants from the interior of the United States prior to 2003.  There is not much point in abolishing ICE if another government agency then gains the same power.  Furthermore, untangling ICE from the rest of DHS can be tricky without wholesale reform.   

If the goal is to limit interior immigration enforcement to serious criminals and remove the constant fear felt by otherwise law-abiding illegal immigrants, their American families, and businesses in the United States then there are two legal reforms that will functionally abolish ICE without disbanding the agency.  The first is to reform immigration law to change all crimes into civil offenses.  The second is to reorganize Homeland Security Investigations (HSI) by giving it some of the responsibility of Enforcement and Removal Operations (ERO) and then abolishing the latter agency.  Both reforms will substantially weaken interior immigration enforcement for non-criminals and abolish the worst part of ICE without removing its ability to deport serious criminals and national security threats. 

Abolish Immigration Crimes

Most violations of immigration law are civil offenses that are “remedied” through deportation.  Criminal offenses are punished with jail time and fines.  However, there are some immigration crimes like illegal entry that are misdemeanors with potential jail time as punishment.  Previous Congresses did not consider these crimes to be serious as they are only misdemeanors but, nonetheless, the people who violate them are criminals.  Transforming all criminal immigration offenses, or at least as many as possible, into civil violations guts much of the political rationale for cracking down on illegal immigration.  If none of them are criminal violators of immigration law then the arguments for sending ICE into their communities to harass them diminishes greatly.  This reform also will not prevent the deportation of illegal immigrants who commit other serious crimes. 

Abolish ERO and Revamp HSI

HSI investigates and enforces the most serious criminal violations committed by illegal immigrants and others in the United States involving national security and transnational crime.  ERO mostly partners with the Border Patrol and local law enforcement agencies to apprehend illegal immigrants who haven’t committed crimes worthy of the name.  Two-thirds of ERO’s arrests are for non-criminal offenses and victimless crimes while only 15.4 percent are for violent or property criminals and another 18.8 percent are for crimes with possible victims. 

ERO’s responsibility for apprehending and removing the one-third of its arrests who have committed crimes (broadest definition) should be transferred to HSI.  Thus, part of the resources allocated to ERO every year should be transferred to HSI.  Congress should then abolish ERO and claim a major victory against arbitrary and capricious enforcement of immigration laws.

This reorganization will focus immigration enforcement on criminals and national security threats.  Even better, it will give its proponents the cover to say that they have abolished ICE without removing its ability to deport serious criminals and to lift the specter of harsh immigration enforcement on otherwise law-abiding communities.  

Conclusion

Members of DHS have proposed spinning off HSI and ERO into different agencies because of their largely different responsibilities.  Those DHS bureaucrats believe that ERO’s bad reputation is hindering the ability of HSI to fulfill its more important mission.  The reform I propose above would accomplish the overall goal of protecting HSI’s important work, a DHS goal, while also offering up a bureaucratic sacrifice in the form of a disbanded ERO.  Combined with replacing all criminal immigration violations with civil infractions, these two reforms would largely accomplish the goals of the abolish ICE movement without the difficulty of abolishing ICE.  

It’s summertime and across the United States, children are away from school. The custom of long breaks in the school year dates to when most Americans worked in agriculture and often needed their children’s help on the farm. Of course, most children simply didn’t attend school, instead helping with housework and grueling farm labor year-round. In 1820, for example, primary school enrollment in the United States was just over 40 percent. That percentage rapidly shot upward in the coming decades, reaching 100 percent by 1870. But even then, many children didn’t make it past elementary school. In 1870, U.S. mean years of schooling stood at just 4.28. That number has risen steadily ever since. What changed? Technology, for one thing.

In his book Enlightenment Now, Harvard University professor Steven Pinker recounts how technology helped get boys off the farm and into the classroom. He quotes a tractor advertisement from 1921:

“By investing in a Case Tractor and Ground Detour Plow and Harrow outfit now, your boy can get his schooling without interruption, and the Spring work will not suffer by his absence. Keep the boy in school—and let a Case Kerosene Tractor take his place in the field. You’ll never regret either investment.”

As more farms adopted efficiency-enhancing agricultural devices like kerosene tractors, more boys attended school instead of working the fields. For girls, the huge time savings brought on by labor-saving household devices played a similar role. As running water, electricity, washing machines, and other modern conveniences spread, time spent on housework plummeted. Pinker’s book also contains a telling chart documenting the change.

Most of the work replaced by those technologies had traditionally fallen to mothers—and to their daughters. The time freed up by innovation enabled more girls to attend school.

Washing machines and tractors have accomplished more than just cleaning clothes and ploughing fields. They also freed America’s children to receive an education.

Today, there are still children kept from school by household labor requirements. The burden disproportionately falls on girls. According to the United Nations, data from 42 countries show that rural girls are more likely to be out of school than rural boys. In rural Sub-Saharan Africa, the U.N. data also shows that girls often spend more time gathering wood and water than boys—time that could be spent in a classroom instead.

Fortunately, access to running water and electricity is rapidly spreading across the globe. As more households gain access to modern technologies, more children will leave behind backbreaking physical labor for school books and studying.

A couple of recent New York Times articles discuss pregnancy discrimination in the workplace. In its most recent spread, the Times outlines a variety of stories of expectant mothers losing jobs or job responsibilities and cites the growing number of pregnancy-related Equal Employment Opportunity complaints to imply rates of pregnancy discrimination may be increasing.[1]

As a solution, the article’s authors propose pregnant women would be better off with additional government protection, perhaps similar to the protection afforded to Americans with disabilities. The Times should be careful what it wishes for.

While arguing for added protections for pregnant women, the Times forgets to mention that rights to accommodation for people with disabilities didn’t work out as planned. One study finds the Americans with Disabilities Act (ADA) of 1990 reduced “employment of disabled men of all working ages and disabled women under age 40.”

Other evidence finds the ADA reduced employment rates for men with disabilities by 7.2 percentage points and was “associated with lower relative earnings” and “slightly lower labor force participation rates” for people with disabilities.

Indeed, when ADA took effect in 1990, 28.4 percent of people with disabilities were employed (compared with 78.4 percent of non-disabled persons). In 2014, the employment rate for people with disabilities had fallen to 12.9, or less than half of the 1990 figure. The employment rate didn’t changed much for non-disabled persons, so the employment gap between disabled and non-disabled widened considerably during this period.

Figure 1: Employment Rate Through Time for Persons with and Without Disabilities, Ages 21-64

Data Source: Census Bureau’s Current Population Survey   Measuring disability prevalence accurately can be difficult, so some individuals take issue with these results. But other survey data that use different definitions corroborate these trends (e.g. NHIS and SIPP).   Moreover, disability prevalence did not decline in a way that might indicate ADA genuinely helped many persons with disabilities find jobs and left a more difficult-to-employ population behind. The proportion of Americans with a work-limiting disability has grown since ADA implementation.     Figure 2: Disability Prevalence Through Time, Ages 21-64    Data Source: Census Bureau’s Current Population Survey  

The government was trying to help people with disabilities, so why did ADA hurt their employment prospects?  A 2010 study examining the ADA 20 years after its passage concludes

The unclear expectations on what constitutes appropriate accommodations for people with disabilities is likely having a chilling effect on the employment prospects of the disabled population. Fears of costly litigation and administrative grievances are driving some employers to be suspect, if not downright hostile, to hiring workers with a disability. Reflecting an all too common irony in social policy, the ADA might be having the exact opposite effect of the intent of the legislation.

According to the Times, pregnant women should have the same accommodation rights. But if pregnant women knew about the impact of the ADA on disabled population, fewer might be interested in this form of government “protection.”

[1] Note that these figures don’t provide evidence of that per se.

Domestic and international politics surrounding the Trump administration’s planned summit with Moscow are largely overshadowing the tangible U.S. national interests at play. Trump’s frequently expressed esteem for President Putin, along with his apparent admiration for authoritarian strongmen from Kim Jong Un to Rodrigo Duterte, rubs much of Washington and many U.S. allies, particularly in Europe, the wrong way for two reasons. First, it suggests that Trump is abandoning America’s purported role as a global defender of democracy. Second, it suggests that Trump is unwilling to take a tough stance toward Moscow despite the U.S. intelligence community’s assessment that Russia meddled in the 2016 election and constitutes a major, continuing threat to America’s security and geopolitical interests.

But even if Trump is more brazen than his predecessors in his fondness for autocrats, the United States has a long history of showering brutal dictators with rhetorical praise and direct support. And while Trump has been rhetorically easy on Putin in a way that has made NATO allies, and the U.S. foreign policy community, uncomfortable, the nuts and bolts of U.S. policy toward Russia have not changed. The Trump administration has pushed to expand NATO, boosted U.S. troop deployments in the Baltics, conducted provocative military exercises with its alliance partners in various East European locales as well as the Black Sea, and refused to give ground to Russian interests in Ukraine or the Balkans. Indeed, the administration has even engaged in military exercises with Ukrainian forces and approved the sale of “defensive” arms to Kiev.

Proposals for a tougher approach toward Russia essentially amount to imposing more economic sanctions, which have not proven effective in changing Russia’s policies or strategic calculus, and retaliatory covert cyber operations, which would likely escalate tensions to little greater effect.  Moreover, some of the anger toward Moscow among politicians and pundits has generated a worrisome intolerance of those in the policy community who dare advocate a more conciliatory posture. Indeed, at times that shrill criticism is reminiscent of the excesses that Senator Joseph McCarthy and his followers exhibited. That development damages America’s political culture.

Contrary to much of the political commentary, meeting with adversaries, such as Putin and North Korea’s Kim Jong-un, is not tantamount to appeasement. Nor are sensible negotiations and a willingness to compromise. While Russian meddling in the 2016 election was a serious offense, we must avoid letting it drive U.S. policy into determined, unrelenting hostility. The two countries are already perilously close to a second Cold War, and it is imperative to keep the lines of communication and diplomacy open. 

The alleged threat from Russia, including the apparent election meddling, must be kept in perspective. The United States remains the world’s economic and military superpower and is remarkably insulated from external security threats. Meanwhile, Russia’s economy is approximately the size of Spain’s, it has limited conventional power projection capabilities, and it suffers from burdensome domestic problems, including corruption, as well as demographic trends that are likely to sap its power potential in future years.

A Trump-Putin summit is worthwhile, as there are a number of contentious issues that need to be addressed and require diplomacy to resolve. Those volatile disagreements include sharp differences over policy toward Syria, Iran, North Korea, and Ukraine.  Even a candid bilateral dialogue at the highest level may not resolve those differences, at least not quickly. But just as the Trump-Kim summit helped ease tensions and the risk of a dangerous confrontation, the summit meeting between Trump and Putin may help dampen the growing U.S.-Russian animosity. That would be useful, because it will be difficult to make even modest progress toward solving problems such as Syria, Ukraine, and North Korea without substantial Russian input and cooperation.

To achieve a bilateral détente, though, U.S. objectives must remain limited and realistic. It may be possible to induce the Kremlin to dial back its support for separatist rebels in eastern Ukraine or limit the Russian military presence in Syria. It is not an achievable objective to insist that Russia return Crimea to Ukraine. Moscow will no more do that than Israel will return the Golan Heights to Syria or Turkey relinquish occupied northern Cyprus to the Republic of Cyprus.

President Trump has yet to demonstrate the strategic acumen necessary to deftly engage in nuanced diplomacy with adversaries in a way that tangibly advances U.S. interests. The summit with Kim was a mixed bag. The achievement consisted primarily of changing the overall dynamics of the bilateral relationship in a less confrontational direction. Although that meeting did not deserve the knee-jerk negative response from Trump’s political opponents (or, for that matter, the knee-jerk positive response from his supporters), there also were few truly tangible gains.  Moreover, the president seemed more interested in stagecraft, rather than statecraft. He needs to improve that performance in his summit with Vladimir Putin.

President Trump ordered the end of his child separation policy, and a court has ordered the reunification of parents who were separated from their children. The Department of Homeland Security (DHS) has said it will stop referring parents, but many conservatives felt that the family separation was a positive development in the fight against illegal immigration and even required by law, so here is a review of nine of their most common defenses of the policy. 

1. “It’s the law, and that’s what the law states.” -White House Press Secretary Sarah Huckabee Sanders

  • No, it doesn’t, and in many cases, the law prohibits criminal prosecutions.

No law requires immigrant children to be separated from their parents. Under the Trump administration’s “zero tolerance” policy, DHS chose to refer to the Department of Justice (DOJ) twice as many border crossers—and far more parents—for prosecution for “improper entry” under 8 U.S.C. 1325. This law provides that “any alien who… attempts to enter the United States at any time or place other than as designated by immigration officers… shall… be fined… or imprisoned not more than 6 months.” Those who claim that this statute requires separation must defend the view that it 1) requires referring all offenders for prosecution, 2) requires separating children during that referral, 3) requires prosecutors to seek jail time, and 4) allows no exceptions.

None of these four claims are true. 1) The “shall” in this statute doesn’t require prosecution of every single offender, but rather limits the penalties to be imposed (“shall be… not more than”). As DOJ’s own manual affirms, “the prosecutor has wide latitude in determining when, whom, how, and even whether to prosecute… [as] has been recognized on numerous occasions by the courts” (citing a half a dozen cases). The statute, however, specifies the maximum or minimum penalties should the prosecutor decide to prosecute. 2) In any case, nothing in this statute requires that—in the process of DHS’s referral for prosecution—a parent be separated from their child, and 3) the statute explicitly allows prosecutors not to seek jail time. In response to an ACLU lawsuit, DOJ even admitted to the court that the detention and prosecution decisions are entirely “discretionary.”

4) As importantly, 8 U.S.C. 1158 provides that “Any alien who…  arrives in the United States (whether or not at a designated port of arrival…), irrespective of such alien’s status, may apply for asylum…” In other words, it is completely legal for illegal immigrants to apply for asylum not at a designated port of entry. Congress enacted the statute permitting asylum in 1980 after it criminalized improper entry in 1952, indicating that it did not envision asylees being prosecuted. Moreover, the United States is a party to the United Nations 1951 Refugee Convention. Article 31 prohibits, with some exceptions, “penalties, on account of illegal entry or presence” on refugees because “the seeking of asylum can require refugees to breach immigration rules.” The DHS Office of Inspector General has found prosecuting asylum seekers at the border “may violate U.S. treaty obligations” under the Convention.

Congress has certainly never made it mandatory to separate families. In fact, the House Committee on Appropriations in 2005 under Republican control stipulated in its report attached to the annual appropriations bill that it “expects DHS to release families or use alternative to detention such as the Intensive Supervised Appearance Program whenever possible,” and that if detention is temporarily necessary or otherwise unavoidable, it “directs DHS to use appropriate detention space to house them together.”

2. “If you are seeking asylum for your family, there is no reason to break the law and illegally cross between ports of entry.” -DHS Secretary Kirstjen Nielsen

  • False. Secretary Nielsen has admitted DHS is turning back many asylum seekers at ports of entry and that it is still separating many families who are admitted at ports.

In January 2017, the American Immigration Council (AIC) filed a complaint about the DHS’s practice of turning away asylum seekers at ports of entry. Human Rights First documented numerous other cases in May 2017, concluding that the policy “is pushing some asylum seekers to dangerously cross the border between formal entry points.” In July, AIC filed a class action lawsuit challenging the policy. In December 2017, NPR reported that DHS officials at a port in San Diego were telling asylees from Central America “they can’t come in.” In June 2018, the Atlantic published video of asylum seekers being turned back at ports of entry—one man was turned back 20 times in four days. This forced them to sleep homeless under a bridge in Mexico. The same month, the Intercept reported on the officials in Texas rejecting asylum seekers from Central America, producing video of the illegal actions, and the Washington Post reported on a father with a 15-year-old son whom CBP officials had rejected nine times over the course of nine days. Here are many other cases.

In April 2018, Secretary Nielsen herself admitted this was happening and said, “We are metering, which means that if we don’t have the resources to let them in on a particular day, they are going to have to come back.” It is illegal under 8 U.S.C. 1158 to refuse to allow a person to submit an asylum application. It takes minimal resources to process an asylum claim, so the idea that they need to stop processing now is baseless. Moreover, because the practice has forced homeless, hungry, and desperate people to cross between the ports, DHS still has to process the claims, while at the same time, it has chosen to expend resources to arrest them, refer them for criminal prosecution, and house the children in detention facilities—all of which is more expensive than processing the original claim.

Finally, DHS is still separating some families who presented themselves at ports of entry for asylum. Secretary Nielsen has stated that “for those seeking asylum at ports of entry… we only separate if the child is in danger, there is no custodial relationship between ‘family’ members, or if the adult has broken the law.” The ACLU filed a lawsuit on behalf of a woman who DHS separated from her 7-year-old daughter after she turned herself in at a port of entry. DHS eventually returned the child five months later without an apology. In December 2017, DHS separated four fathers from their children, claiming that it couldn’t verify their relationships. Many other cases have been documented by Erika Pinheiro, policy and litigation director at Al Otro Lado. The separation policy is far broader than DHS maintains.

3. “If you as a parent break into a house, you will be incarcerated by police and thereby separated from your family. We’re doing the same thing at the border.” -DHS Secretary Kirstjen Nielsen

  • No, it’s not the same. Burglary is a serious crime and generally a felony. Illegal entry is not.

Ignoring the illegality of prosecuting asylum seekers and setting aside the fact that there is no requirement to prosecute, illegal entry is a misdemeanor offense. Illegal entry is most similar to technical violations of motor vehicle law, such as driving without a license, not breaking and entering, because it amounts to nothing more than movement without a proper permit. Many misdemeanors do not even require police to take a person into custody at all. A variety of traffic offenses—including driving without a license, operating an unregistered vehicle, speeding, and other offenses—are misdemeanors in dozens of states. In general, police simply issue a summons to appear in court (for an example, see the Virginia code here). If a child is in the vehicle, they are not separated from the parent pending the final dispensation of the case.

In the unusual cases in which a parent is brought into custody for such a violation, the children either wait in the police station while the parent is processed or are handed off to a relative. For example, in the case of Gail Atwater v. City of Lago Vista, a local police officer arrested Atwater for a seatbelt violation with children in the car. The officer initially said that the children could come to the police station, but allowed a friend of Atwater to pick them up. In other words, there is a massive difference between the treatment of minor offenses committed by Americans and these parents coming to the border. Moreover, if U.S. parents and children are separated for these types of offenses—as in the Atwater case—it is an outrage, not a justification for further separations.

4. “The separation of parents and their children is because of a court ruling.” –Speaker Paul Ryan

  • No, it only requires the government to treat children humanely.

No court case requires the separation of parents and children. Defenders of the Trump policy point to the Flores settlement agreement and the Ninth Circuit’s 2016 interpretation of it, but neither requires family separation.

In 1985, Border Patrol arrested a 15-year-old Salvadoran girl named Jenny Lisette Flores attempting to cross the border illegally. She was attempting to reunite with her mother who had come to the United States during El Salvador’s long and bloody civil war. She—and all other minors in government custody—were subject to abuse, detained alongside adults, and forced to undergo daily strip searches, which a judge found violated the Constitution in 1988. After more than a decade of litigation over her case, the Clinton administration settled, entering into an agreement that specified standards for facilities for minors and required the government to quickly place minors in “the least restrictive setting appropriate to the minor’s age and special needs.” The Ninth Circuit in 2016 found that it “unambiguously applies both to minors who are accompanied and unaccompanied by their parents.”

Nothing in the Flores settlement or the Ninth Circuit decision mandates that children be separated from their parents—just the opposite: Flores requires that they be reunited with them if they happen into government custody alone. Minors are only to be separated from “unrelated adults.” The Trump administration argues that because Flores mandates the release of children within 20 days, it requires them to separate children from their parents who are still in custody. This is false. Flores does not prohibit the release of parents, which would keep the family unit together as long as their case is pending (argument #5 below shows how this can be workable).

In any case, Flores was not the origin of the family separation policy because it only governs DHS custody determinations. The separation of children and parents started up in earnest this year because DHS decided to transfer to DOJ—and DOJ decided to prosecute—parents who had crossed the border with children.

5. “Adults and children were simply being released in the country [when] we refused to prosecute these adults for illegal entry.” -Attorney General Jeff Sessions

  • Prosecution doesn’t prevent eventual release, and alternatives to detention work and save money.

Prosecutions for illegal entry do not prevent release into the United States. After the 9th Circuit clarified that Flores applied to all minors, the Obama administration did decide to release both parents and children pending determinations on their asylum claims, rather than separate the children from the parents. But prosecutions for illegal entry only delay deportation for those without a credible asylum claim and do not prevent release of asylum seekers by the DHS after DOJ is finished prosecuting them. In fact, the criminal prosecutions often only take a few days to process because defendants are prosecuted in mass, and most plead guilty as quickly as possible (particularly when they are separated from their children). After the prosecution, the parents are sent back to DHS custody—just not with their kids.

While families were released in 2015 and 2016, the Obama administration created alternatives to detention that included bonds, electronic monitoring, and community management. These programs resulted in high levels of compliance among asylum seekers pursuing their claims in immigration court. In 2016, 83 percent of those released on bonds showed up in court. The Intensive Supervision Appearance Program (ISAP) resulted in appearance rates of 99.6 percent. The Family Case Management Program (FCMP) uses caseworkers to help immigrants comply, and 100 percent of the immigrants in the program showed up for their court hearings. Nonetheless, the Trump administration terminated this program in June 2017. The Family Placement Alternatives program which relies on community monitoring achieved a 97 percent appearance rate, at a cost of just $50 per day per family, compared to the estimated detention cost of $798 per family. In other words, there are cheaper alternatives to detention.  

6. “It would be a tough deterrent.” -White House Chief of Staff John Kelly

  • Family separation has failed to deter people from coming, and it is cruel and illegal to deter asylum seekers from seeking safety in the United States.

No evidence has emerged that family separation has done much to deter illegal immigration. DHS experimented with family separation in a single border sector around El Paso from July to November 2017. As Dara Lind at Vox first reported, the number of families coming through that sector actually increased 64 percent during the experiment from 231 to 379. May was the first month that saw the policy applied across the entire border, and the number of families stayed virtually the same from April through the end of May. In general, the number of families has increased from a monthly average of 6,301 in 2017 to 7,389 in 2018, despite increasingly harsh enforcement.

In any case, it is entirely legal to seek asylum at or between ports of entry, and prosecuting asylum seekers in order to deter them from fleeing violence is illegal and cruel. Kelly has said that he wants to deter them because the journey is so dangerous. But the migrants are aware of the risks. A UNICEF report from 2016 highlights stories of Central Americans who are planning to travel or have attempted to travel to the United States, including a boy who lost his leg falling from a train on the way. Still, he predicts that his siblings will eventually make their own attempts to get to the United States. As UNICEF concludes, “Anyone who fled from a gang or other criminal organizations is at high risk of being attacked, raped or killed upon returning home.” Dozens of deported Central Americans, including some children, have already been murdered. The repeated attempts of people who were deported further highlights that they consider the dangerous journey a risk worth taking.

7. “The kids are being used as pawns by the smugglers and the traffickers.” -DHS Sec. Kirstjen Nielsen

  • False. DHS statistics show that 99.8 percent of all families were not alleged smugglers.

DHS alleges that 237 individuals of the 106,724 who entered as a family unit from October 2016 to February 2018 pretended to be the parent of a unrelated child—that is 0.2 percent of all family members. It is important to remember that this is just what DHS alleges, not what it has proven in court. Some of these parents dispute DHS’s findings, claiming that they are the parents of the children, and have now been wrongfully separated from them.

8. “Our issue is strong borders, no crime; their issue is open borders, let MS-13 all over our country.” -President Trump

  • False. Latin American immigrants, including illegal immigrants, are less likely to commit crimes.

In 2016, immigrants from Latin America were about half as likely to end up committing crimes and being incarcerated in the United States as native-born Americans. Even illegal immigrants from Latin America—who can be incarcerated in detention and prisons purely for immigration offenses (as the administration is doing)—are significantly less likely to be incarcerated in the United States than people born in the United States. A substantial body of research now shows that immigration has reduced crime rates in general across the United States.

9. “Such a difference in the media coverage of the same immigration policies between the Obama Administration and ours.” President Trump

  • Obama’s flawed policies don’t justify Trump’s, and while Obama did occasionally separate some families, Trump not only increased the practice dramatically—he made it mandatory.

President Obama never had an explicit policy of separating families. Nonetheless, the Obama administration’s activities should not be downplayed. Virtually all the actions that the Trump administration has taken are ramped up versions of policies and practices of the prior administration. American Immigration Council filed a complaint on behalf of five asylum seekers denied access to ports of entry in early January 2017 before President Trump took office and called the practice “systematic.” Lutheran Immigration and Refugee Service, Women’s Refugee Commission, and Kids in Need of Defense published a report the same month describing numerous reports of family separation as a consequence of criminal prosecutions.

But DHS turned the problematic procedures under the Obama administration into official policy—indeed, appearing to even intentionally target parents with children as a deterrent. Under Obama, DOJ’s policy was generally not to prosecute parents traveling with children (though it is clear that DHS did not always refrain from referring parents to DOJ for criminal prosecution). In any case, under Trump, the share of border crossers that were prosecuted shot up from 30 percent to 60 percent (not quite “zero tolerance,” but moving in that direction). DHS has not published statistics on the number of separated families over time, but in May through June 2018, the policy separated between 2,300 and 3,000 children from their parents. The number of cases before the policy is unknown, but likely in the dozens per month or fewer.

President Trump recently said, “Our issue is strong borders, no crime; their issue is open borders, let MS-13 all over our country.” But according to statistics from Border Patrol, the government made arrests of just 275 MS-13 gang members at the border so far in 2018—that’s just 0.11 percent of the 252,187 apprehensions in this year. That’s hardly any different from prior years. Apprehensions of individuals in any gang made up just 0.2 percent of all Border Patrol arrests in 2018, meaning that 99.8 percent of all arrests were not gang members.

The figure below shows the trends in these apprehension figures. 2015 saw the highest share of gang members arrested. However, 2014 saw the highest number at 1,034. MS-13 arrests as a share of all arrests were highest in 2018, but still lower in absolute terms than in 2014.

Gangs as a share of all border patrol apprehensions

 
This picture of enforcement mainly targeting nonviolent people fits with the statistics on enforcement against immigrants inside the United States as well.  Other Cato research has demonstrated that illegal immigrants commit fewer crimes than native-born Americans.

I’ve written before about the worrisome gap between the American people and foreign policy elites (see e.g. here and here). Whereas most Americans believe that the U.S. military exists chiefly to defend the United States and its economic and security interests, the intelligentsia is committed to a broader set of objectives, including defending the security of others, shaping the international system, and advancing the cause of democracy and human rights. These slightly differing impulses often worked hand in hand. A large and active U.S. military that was focused mostly on U.S. security and prosperity typically helped others.

But that wasn’t always the case. And military interventions initiated with lukewarm public support (e.g. Somalia 1993), or sold on phony pretenses (e.g. Iraq 2003), eventually subjected the men and women responsible for these debacles to closer scrutiny. As I explain over at The National Interest:

Trump exploited the gap between the elites and the public at large with ruthless efficiency on his path to the GOP nomination, and then in his general election win over Hillary Clinton. As president, his rhetoric has continued to shine the light on the public vs. elite divide, though his actions have largely conformed with the primacist consensus

Increasingly, however, we see not merely a disconnect between the public and elites, but also among different age groups within the American electorate. And the age cohort most skeptical of American global leadership, at least as it has been practiced for the last several decades, is the Millennial Generation, those men and women born between 1981 and 1996. These individuals did not arrive at their views because of Donald Trump; a majority of voters under 45 voted for Hillary Clinton.

Earlier this week, Cato hosted a policy forum exploring the generational divide and centering on a new report by the Chicago Council on Global Affairs. The event featured three of the authors of this report: the Chicago Council’s Dina Smeltz, Cato Senior Fellow and GMU Professor Trevor Thrall, and William Ruger of the Charles Koch Institute, and also included a lively and wide-ranging discussion.

Going back to 1947, the Chicago Council has asked Americans “Do you think it will be best for the future of the country if we take an active part in world affairs or if we stay out of world affairs?” The percentage of those answering “active part” has averaged in the high 60s/low 70s.

 

When one separates respondents by their age cohorts, however, the generational divide becomes clear. The Silent Generation, those men and women born between 1928 and 1945, are most supportive of an active role (78 percent in the latest survey). Baby Boomers (born between 1946 and 1964) are slightly less supportive (72 percent), and Generation X (1965-1980) less “active” still (62 percent). Barely a majority of Millennials (51 percent) embrace the “active” over “stay out” approach.

 

But, as I explained in my introductory remarks, and then expanded upon at TNI, Millennials don’t want to disengage from the world – rather, they want to engage differently:

they appear to be in relative agreement with older Americans regarding the need to share global leadership with others. Additionally, Millennials are somewhat more supportive of free trade, and have more positive attitudes toward the effects of globalization upon the U.S. economy, than men and women born in earlier eras. 

In that sense, we should consider moving beyond euphemistic terms such as global leadership and global engagement, and cast the generational divide as one between hawkish engagement and militarism versus generally peaceful engagement through commerce and cultural exchange (i.e. leading by example).

[…]

 And, once the Millennial generation is firmly in control, we might see U.S. leadership practiced less through costly and counterproductive wars, and more through mutually beneficial trade and diplomacy.

 

You can read my complete commentary here.

To watch or listen visit the event page here, and if you would like to learn more, please check out the report.

Monday of this week marked the Day of the Seafarer, an occasion meant to recognize the critical role played by mariners in the global economy. American seafarers, however, increasingly find little to celebrate. A large source of their travails is the Jones Act. Signed into law 98 years ago this month, the law mandates that cargo transported between two domestic ports be carried on ships that are U.S.-built, U.S.-owned, U.S.-flagged, and U.S.-crewed.

The harm caused by this law is well documented. By reducing competition from foreign shipping options and mandating the use of domestically built ships that are vastly more expensive than those constructed elsewhere, the Jones Act has raised transportation costs and served as a de facto tax on the economy.

Too often overlooked is that the Jones Act has also presided over the decimation of the U.S. maritime sector, the very industry whose fortunes it was meant to promote (an age-old story in the annals of protectionism). The numbers speak for themselves. Since 2000 the number of oceangoing vessels of at least 1,000 tons which meet the Jones Act’s requirements has shrunk from 193 to 99. A mere three U.S. shipyards are capable of producing oceangoing vessels for commercial shipping, and one of them, the Philly Shipyard, is facing a possible shutdown. Europe, in contrast, has roughly 60 major shipyards capable of building vessels of at least 150 meters in length, while the United States has a total of seven such shipyards when those producing military vessels are included.

Both the declining number of Jones Act ships and the struggles of the shipyards that build them are in large part explained by the vastly inflated cost of ships constructed in the United States. According to the Congressional Research Service, American-built coastal and feeder ships—the types of ships commonly used in domestic sea transport—cost between $190 and $250 million, whereas similar vessels constructed in a foreign shipyard cost about $30 million.

One unsurprising consequence of such stratospheric costs is a reluctance on the part of domestic shipping firms to invest in new ships, with U.S. seafarers forced to work aboard vessels that are significantly older than those found in other countries. Excluding tankers (these vessels were subject to a requirement in the wake of the Exxon Valdez oil spill that they be double-hulled by 2015, thus encouraging the purchase of new ships and decreasing their average age), the Jones Act fleet averages 30 years of age—fully 11 years older than the average age of a ship in the merchant fleet of other developed countries. For context, the maximum economic life of a ship in the world market is typically 20 years

International comparisons of specific ship types are even more eye-opening. Jones Act containerships, for example, average more than 30 years old. The international average is 11.5. The only two bulk ships in the Jones Act fleet average 38 years old, while the international average is 8.8. General cargo ships average 34 years of age compared to an international average of 25.2.

Struggling shipyards, a dwindling fleet of old ships, and fewer jobs are now the order of the day in the maritime sector. As Mark H. Buzby, head of the U.S. Maritime Administration, testified before Congress earlier this year, “over the last few decades, the U.S. maritime industry has suffered losses as companies, ships, and jobs moved overseas.” Also addressing members of Congress, one senior union official admitted that “the pool of licensed and unlicensed mariners has shrunk to a critical level.”

This is not a new story. During Operations Desert Shield and Desert Storm, the United States was so desperate for civilian mariners to crew transport vessels that it enlisted the services of two octogenarians and one 92-year-old. Its search for ships was equally frantic, resulting in two requests to borrow a ship from the Soviet Union—and two rejections. Notably, during this conflict a much larger share of U.S. military equipment and supplies was carried by foreign-flagged vessels (26.6 percent) than U.S.-flagged commercial vessels (12.7 percent).

Supporters of the Jones Act often claim the law is vital to assure a strong merchant marine capable of answering the country’s call in times of war or national emergency. Should the Jones Act be repealed, they warn that the maritime industry will enter a dangerous downward spiral. But the record clearly shows that their nightmare scenario, in fact, describes the status quo. It’s time for this law to go, or be significantly reformed.

Toward that end the Cato Institute has unveiled its Project on Jones Act Reform, which will feature a series of policy papers exposing the fallacies and realities of this archaic law. This first of these policy analyses, The Jones Act: A Burden America Can No Longer Bear, is now available and provides an overview of the law, its history, and myriad shortcomings. More such policy analyses will follow both this year and next, along with other commentary pieces about this failed law, so be sure to check back for the latest updates. 

 

On closer inspection of yesterday’s Janus v. AFSCME decision, the Supreme Court looks to have updated and clarified its decisional framework for addressing the age-old matter of stare decisis – deference to old precedents – a framework that largely mirrored Cato’s amicus brief in this landmark case. Properly understood, stare decisis doesn’t demand that courts blindly follow decisions that are no longer viable, but instead imposes a special duty to overturn faulty precedents in constitutional cases. The Janus majority both recognized and embraced this weighty responsibility.

Justice Samuel Alito’s decision set forth five important factors to consider when deciding whether to follow precedent: 1) “the quality of Abood’s reasoning”; 2) “the workability of the rule it established”; 3) “its consistency with other related decisions”; 4) “developments since the decision was handed down”; and 5) “reliance on the decision.” Although both owe much to Chief Justice John Roberts’s pithy concurrence in Citizens United, the similarities between the Janus factors and those laid out in Cato’s brief are striking.

Abood v. Detroit Board of Education (1977) was so poorly reasoned that, as the Court observed, proponents of upholding the case “implicitly acknowledge[d] its weaknesses by forwarding alternative justifications.” Chief among these justifications was the attempt to borrow legal rationales from Pickering, a case completely unrelated to Abood’s original reasoning. The Court found there to be “no good reason, at this late date, to try to shoehorn Abood into the Pickering framework,” and that “[e]ven if that were attempted, the shoe would be a painful fit.” But defenders of agency fees had little choice but to make this argument, since the two cases that Abood was actually supposed to be based on (Hanson and Street) both managed to avoid rendering a decision on First Amendment grounds. Cato’s brief conspicuously made these points, and the Court detected these same inherent flaws when deciding the case.

The Abood standard has also proven to be unworkable, with the distinction between chargeable and nonchargeable expenditures presenting the thorniest issue. Chargeable expenditures are those supposedly nonpolitical expenses that nonmembers could be validly forced to pay for under Abood, but in the context of public-sector unions, collective bargaining and political action are practically indistinguishable. Again the proponents of state-union compulsions advanced a self-defeating argument, with the Court observing that “[n]ot even the parties defending agency fees support the line that it has taken this Court over 40 years to draw.”

Next, what Cato’s brief recognized as one consideration the Court’s decision split into two, first considering the factual developments since Abood and then moving onto the case’s legal inconsistency with the overall body of First Amendment jurisprudence. As for the former, the Court took notice that Abood was decided “against a very different legal and economic backdrop” when “[p]ublic-sector unionism was a relatively new phenomenon.” Such considerations were again advanced by Cato, arguing that the Court should “look back on the period of time since the precedent was established and inquire ‘whether facts have so changed … as to have robbed the old rule of significant application or justification.’”

And regarding Abood’s place within the First Amendment canon, the Court once again found the decision to be “an anomaly,” commenting that it “particularly sticks out when viewed against our cases holding that public employees generally may not be required to support a political party.” While Cato’s brief instead chose to focus on the weakness of the labor peace rationale in justifying an infringement on individual’s free speech rights, the overall conclusion remained the same; as the great legal thinker Big Bird would have observed, “one of these things is not like the others.”

Finally, the Court paralleled Cato’s brief in adjudging that any reliance interests in Abood were insufficient to prevent the case from being overturned. While Cato argued both that there could be no valid reliance interests in the deprivation of First Amendment rights and that overruling Abood would impose no special hardship on labor contracts, the Court went even farther. It summarized the litany of holes in the counterargument thus: “the uncertain status of Abood, the lack of clarity it provides, the short-term nature of collective-bargaining agreements, and the ability of unions to protect themselves if an agency-fee provision was crucial to its bargain all work to undermine the force of reliance as a factor supporting Abood.”

As the Court has recognized for decades, stare decisis – at least in principle – “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Far from constituting a hindrance, the newly elucidated Janus framework has the potential to advance these noble objectives by providing both judges and practitioners with a stable, logical system for determining when adherence to the Constitution mandates abandoning erroneous precedent.

This was the first full term with the Court back at its “full strength” of nine justices, so all eyes were on Justice Neil Gorsuch to see how he would fit in – and how the Court’s internal dynamic and voting patterns would shift from what they were before Justice Antonin Scalia’s death in February 2016. While early reports, based on what turns out now to be unsubstantiated speculation, spoke of tensions between the newest justice and several of his colleagues, he quickly settled in and ended up writing many thoughtful opinions, including being assigned to write for the majority in several important cases (a rarity for a junior justice).

Cato filed in 15 merits cases on important issues ranging from free speech to separation of powers to criminal procedure. One of those got dismissed along the way because of legislative developments (United States v. Microsoft), leaving 14 opinions. (I’m including in that count two briefs filed by our project on criminal justice but not counting the one filed in Trump v. Hawaii because it was an immigration-policy brief which no Cato lawyers signed.) 

Improving on last year’s 9-4 performance, Cato achieved an 11-3 showing. Perhaps most importantly, we handily beat our biggest rivals, the federal government, which amassed an 11-15 record. (It’s an apples-and-oranges comparison, i know, because the government typically appears as a party, not simply amicus, and always participates in oral argument.)

Cato also effectively drew votes from across the judicial spectrum, winning 13 votes from Chief Justice John Roberts, 12 from Justice Elena Kagan, 11 from Justices Anthony Kennedy and Gorsuch, 9 from Justices Clarence Thomas, Stephen Breyer, Samuel Alito, and 7 each from Justices Ruth Bader Ginsburg and Sonia Sotomayor.

Here’s the breakdown, in the order the opinions arrived:

Winning side (11)Masterpiece Cakeshop v. Colorado Civil Rights CommissionCarpenter v. United StatesMurphy v. NCAACollins v. VirginiaNIFLA v. BecerraDigital Realty Trust v. SomersMinnesota Voters Alliance v. ManskyJanus v. AFSCME Council 31McCoy v. LouisianaLozman v. City of Riviera Beach; and Lucia v. SEC.

Losing side (3): Oil States Energy Services v. Greene’s Energy Group; Currier v. Virginia; and South Dakota v. Wayfair.

Next term doesn’t yet look like as exciting as this one was – though recall that several high-profile cases, including Masterpiece Cakeshop and the partisan-gerrymandering lawsuits – ended in fizzles. But still, come this fall we’ll see important cases on property rights, separation of powers, the nondelegation doctrine (!), and more. But of course before we get to next term, the summer will be occupied with the battle over the successor to Justice Kennedy, who announced his retirement hours after the Court announced its final opinions. 

I’ll have more to say on all this in future commentary, but if you’d like to learn more about these cases/trends and the views of Cato-friendly scholars and lawyers, register for our 17th Annual Constitution Day Symposium, which will be held September 17. That’s also when we’ll be releasing the latest volume of the Cato Supreme Court Review, the editing of which will consume the parts of the summer not spent analyzing Kennedy, his possible successors, and the eventual nominee.

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