Cato Op-Eds

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

Restore honor and dignity to the White House

Free trade

Comprehensive immigration reform

Prudent diplomacy

Defend freedom of speech

Rein in executive abuse of power

Balance the budget

Support the president

In a remarkable surrender to Big Government, Senator Ted Cruz of Texas voted for the budget deal last week that hiked spending $300 billion over two years. The deal essentially scraps the Budget Control Act, pushes the deficit over $1 trillion, and sets the stage for $1.5 trillion more in spending over the coming decade.

Why did Cruz do it?

Because the deal included disaster-related spending for Texas, according to Cruz’s comments. Yet the senator surely knows that for practical and constitutional reasons, federal subsidies for local and private disaster rebuilding makes little sense. (I discuss here).

In his comments on the deal, Cruz lamented, “This bill will increase our deficits and increase our debt. That’s foolhardy…we should be reining in government spending.”

Yet Cruz explains: “Washington logrolling sometimes forces lousy choices. This is one of those choices.”

That is the key point. Before recent decades, federal spending on local disaster recovery was very limited. But now that such spending is routine, one of the most conservative senators was bought off in classic logrolling fashion to support Washington’s spending orgy.

Here is one lesson: the size of the budget and scope of federal activities is related. As the scope expands, logrolling becomes easier, which strengthens support for all spending programs. The more different programs there are, the more different levers can be pulled to generate support for each program and for overall spending increases.

Suppose the government had just two programs, A and B. Supporters would seek spending increases, but some legislators may not have much A and B spending in their states, and thus might favor restraint to save money.

Now Congress adds a new program, C. It appeals to members with different interests and in different states than A and B. The addition of C strengthens support for A and B because supporters of C must vote for A and B to gain support for their program.

Perhaps you know that Congress puts farm subsidies and food stamps in the same bill to combine the support of rural and urban members. But you may not know that Congress started subsidizing dams in the West a century ago because Western legislators wanted something in return for their support of Army Corps projects in the East. That is logrolling. It explains much of the history of federal government expansion, and it runs counter to the democratic ideal of true majorities approving specific policies, as I explain here.

Anyway, the Cruz vote suggests a “network effort” for logrolling in Congress. Adding new programs strengthens support for existing programs because more programs make logrolling easier.

The figure shows a hypothetical relationship between the size and scope of the government. Let’s call it the “Spending Size and Scope Curve.” As the number of programs increases, total spending rises for two reasons. First, each new program costs money. Second, the logrolling network effect. As it adds programs, the government spends more on existing programs as well as the new ones, so the curve bends upwards.

The federal government currently spends $4.1 trillion a year and has about 2,300 subsidy programs.

The chart is theoretical and would need to be assessed empirically. In reality, the upward bend may be muted because other forces are at work. For one thing, there may be competition between programs for funding within Congress. Conservatives may favor restraint in nondefense programs to create budget room for defense. Liberals may favor restraint in defense to create budget room for nondefense programs. So as new programs are added, it may intensify spending competition between programs.

Unfortunately, such funding competition between programs has been greatly weakened by today’s massive deficits. Federal deficits have trended upwards since the 1950s, which has buttressed the power of logrolling by undermining the need for legislative trade-offs.

What’s the upshot? The number of federal subsidy programs has doubled since the 1980s. That has strengthened the power of logrolling and put upward pressure on spending. It would have been harder for congressional leaders to buy off Senator Cruz in the 1980s because the federal government was not in the business of huge disaster bailouts at that time.

How can we restrain federal spending? A constitutional cap on spending or deficits would force more funding competition between programs. Also, fully eliminating even small programs would reduce the fuel source for logrolling. We’ve seen in recent years that many members line up to support major bills if even small scraps for obscure programs are thrown their way.

I discuss the mechanics of logrolling here.

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” According to the U.S. Court of Appeals for the Ninth Circuit, however, acquiring arms has nothing to do with keeping and bearing them. This was the court’s logic when it ruled in John Teixeira’s case that buying and selling guns was beyond the scope of the Second Amendment.

Teixeira sought to open “Valley Guns and Ammo” in Alameda County, California (the East Bay, with Oakland as its seat). The one problem with his plan was a county zoning ordinance that forbids a firearms business from being “within five hundred feet of a ‘[r]esidentially zoned district; elementary, middle or high school; pre-school or day care center; other firearms sales business; or liquor stores or establishments in which liquor is served.’” That left virtually no place in the county where a gun store could practicably be located.

After being denied the requisite permits due to complaints of people who may or may not have been within 500 feet of his business’s proposed location, it became apparent to Teixeira that the zoning rule was, in effect, a ban on gun stores. He sued the county and promptly lost in federal district court. A three-judge panel of the Ninth Circuit vacated the lower court’s perfunctory ruling and remanded the case with instructions to consider the ordinance’s Second Amendment implications and have the county justify its rule.

Unfortunately, the county, supported by the state of California, petitioned the Ninth Circuit for a rehearing en banc—normally all the court’s judges, but in the sprawling Ninth, the chief judge and 10 other randomly selected judges. The en banc court reversed the panel, so now the case up on petition for review to the Supreme Court. Cato, along with Jews for the Preservation of Firearms, the Independence Institute, and the Millennial Policy Center, filed an amicus brief supporting that petition.

Our brief tracks the historical scope of the Second Amendment to establish that buying and selling is indeed part of the overall right to keep and bear arms. That right is not only fundamental, but enumerated—and therefore more straightforward for the judiciary to protect. When the government seeks to take an action that impairs such a right, it’s not supposed to be allowed to easily. The lower courts should have required the county to provide substantial evidence that gun stores increase crime around their locations or, in and of themselves, negatively impact the aesthetics of an area. Instead, the Ninth Circuit went up to bat for the county, manufacturing their own justifications and failing to have the county carry its evidentiary burden.

The Supreme Court needs to step in and curb the errant Ninth Circuit’s increasingly boisterous departures from fundamental-rights jurisprudence in the Second Amendment context. We’ll know whether it will take up Teixeira v. Alameda County later this winter or spring.

A New York Times article this week tackled the “conservative social agenda” supposedly packed into the Promoting Real Opportunity, Success, and Prosperity through Education Reform (PROSPER) Act that recently moved through the House education committee. The 590-page bill is an effort to renew the Higher Education Act, through which massive federal aid—currently around $136 billion—flows to students. The article and bill are reminders of how far we’ve strayed from a basic understanding of how a free society works.

A free society is pretty easy to grasp. Individuals are allowed to freely act, including to join or not join together based on their own decisions, rather than because they were forced to associate or not associate under threat of physical harm. The ability to legally inflict physical harm—even to kill—is ultimately what empowers government, but only so that government can protect against others inflicting harm on you, or you on them. Government is instituted to maximize freedom.

Reading the Times article, it seems some people don’t get this. The bill itself is a little less confused.

Higher education has been roiled lately with accusations of censorship, political correctness, and discrimination, largely by conservatives concerned about speakers such as Anne Coulter being barred from speaking on campuses. But folks on the left have had their own concerns, including Christian colleges firing professors for violating tenets of faith.

What should this mean for government?

Public institutions—government institutions—must not hire or fire based on faith, or discriminate against speech on campus. Ultimately, legalized violence must not be brought to bear for or against people based on their faith or opinions. Similarly, public institutions must not tell students who choose to freely associate in clubs or groups whom they must let in or keep out to get institutional funding or access to space; that is government punishing or rewarding people based on their associations.

The federal government, in contrast, must not reward or punish private institutions over their rules on association or speech as long as when a student enters and pays her bill a college does not deceive her about its rules. The institution’s rules, freely accepted by the student, are a part of free association, while deception is fraud.

How does the PROSPER Act do on keeping these things straight?

First, the bill would protect religious colleges from losing access to government funding if the loss were based on schools having religious policies some view as discriminatory, such as prohibiting homosexual student relationships, or firing faculty for violating articles of faith. In the Act this is explicitly a defense of religious freedom, but any voluntary association deserves protection. Meanwhile, one may absolutely despise and loudly condemn what an association stands for, but government must not punish members for their beliefs.

How about college rules that say student organizations must be non-discriminatory in whom they admit, or allow to serve as officers? Such rules should be unacceptable at public institutions—they are government curbing freedom of association—but at private institutions you exercise your freedom of association when you enroll, and if that institution wants to have rules about clubs within it, that is fine from a government perspective. Freedom of association includes the right to make constricting rules for members.

PROSPER gets this partially right. It correctly requires only public schools to allow religious groups to make their own decisions about who can join or become an officer. But protection, again, should extend to all associations.

Partial correctness also applies to the Act’s handling of controversial speakers and free speech zones. It says colleges, regardless of type, only court trouble for restricting speech if they say they have one speech policy but in practice have one that is more constrictive. That is the right policy toward private institutions—it would only punish fraud—but for public colleges no speech curbs are acceptable.

The bill also gets things only half right when it comes to allowing students to join single-sex organizations such as sororities. It would prohibit schools from taking “adverse action” against students who join such organizations. The impetus for this, according to the Times, is unhappiness with Harvard for punishing students who are in such groups. PROSPER’s provision should absolutely apply to public institutions, but not a private school like Harvard. Again, students freely agree to its rules when they decide to attend.

Of course, there is a gigantic elephant in the room: Taxpayers are compelled to pay for all colleges indirectly through student aid, and directly through government assistance to institutions. But the problem is the forced funding, not the freedom of association. To fully protect freedom of association—which includes deciding what we fund—we must eliminate the subsidies. We must not further curb freedom because of the subsidies, as happens when we conclude, “you take government money, you take its rules.”

We cannot eliminate subsidies overnight, and at best the PROSPER Act would make a tiny dent. (Even if it trimmed $1.5 billion per year, as the CBO estimates, that would only be about 1 percent of total federal student aid). To minimize compulsion short of elimination, student grants—which are not repaid—should be eliminated, and aid delivered in the form of loans or income-share agreements. Students should ultimately fund their decisions themselves. State funding for public colleges should also be transformed into students loans.

This would not be perfect—free association also means you are not forced to lend people money—but it would get us a lot closer to where we need to be: people freely associating and making rules for themselves, not having government decide whose associations do or do not prosper.

Carl and Angela Larsen are videographers who offer their skills to those getting married, capturing the magic of that special day for posterity. The state of Minnesota requires that they film same-sex as well as opposite-sex weddings. The Larsens, who believe in traditional marriage, object to the state’s claimed power to compel them to produce expressive messages with which they disagree. They brought a lawsuit to vindicate their First Amendment rights.

Nearly three years have passed since the Supreme Court recognized the constitutional right of gay couples to commit themselves in marriage on equal terms with their fellow straight citizens. In that time, the debate has shifted from the status of these unions to the rights of those who do not wish to participate in the vows. In December, the Supreme Court heard oral argument on the question of whether bakery owners may be compelled by law to decorate cakes in celebration of these nuptials, with a decision expected in June. Cato filed a brief in that case supporting the baker—the only organization to do so that also filed briefs supporting the plaintiffs in Obergefell and the other marriage cases—and his right to refrain from conveying messages with which he disagrees.

We likewise have now filed a brief in the U.S. Court of Appeals for the Eighth Circuit in support of the videographers’ right to do the same, joined by 11 professors of constitutional law. We advocated that the Supreme Court extend the bonds of matrimony to gay couples—and just as their rights should be respected by the government, so too should the rights of those who disagree with us.

The principle is straightforward: can the government compel you to express a message you don’t agree with? The answer should be no. 

Just as the government cannot demand a Cato scholar write an article supporting the government’s preferred policy, it cannot compel those in expressive professions like filmmaking, photography, or musical performance to harness their artistic gifts in support of the state’s message. That the artists are offering their services commercially is no matter; how many rock bands play all their gigs for free?

A world of government-approved art would be a boring one indeed. If you doubt this, attend a gallery exhibition of socialist realism. 

 

What happens when one of the most irresistible of contemporary regulatory trends – the continued chipping away of financial privacy – runs into one of the most formidable of interest groups, organized lawyerdom? The lawyers resist, and in this case the lawyers are right

ABA President Hilarie Bass is expressing concerns that an anti-money laundering bill would undermine the attorney-client privilege and impose “burdensome and intrusive regulations” on small businesses and their lawyers.

In a letter to leaders of the Senate Judiciary Committee, Bass asks the committee to oppose the bill, known as the TITLE Act for True Incorporation Transparency for Law Enforcement, according to an ABA press release.

The ABA opposes provisions that would regulate many lawyers and law firms as financial institutions under the Bank Secrecy Act when they help clients to establish small corporations and limited liability companies.

The bill would require small businesses and their lawyers to gather extensive beneficial ownership information on businesses when they incorporate. The information would be held and disclosed on request to many governmental agencies and financial institutions.

Sponsors of S. 1454, or the TITLE Act (for True Incorporation Transparency for Law Enforcement) include Sen. Chuck Grassley (R-Iowa), Dianne Feinstein (D-Calif.), and Sheldon Whitehouse (D-R.I.)

Concerns about erosion of attorney-general privilege have played a role in resisting numerous bad regulatory and prosecutorial initiatives in recent years, including the Obama Labor Department’s abysmal “persuader rule” proposal; proposals to forbid targets of Consumer Financial Protection Board investigatory letters from disclosing that they are under CFPB investigation; and calls for inculcating client disloyalty among lawyers who handle environmental matters for corporations. See also this paper from the ABA’s Larson Frisby for the Washington Legal Foundation on white-collar prosecution and attorney-client privilege. 

Now if only the rest of us who are not lawyers could get someone to stand up so effectively against the government on behalf of our privacy interests. 

The rise of Donald Trump and his unorthodox Presidential administration has reignited debates over American foreign policy and America’s role in the world. Policy-relevant academic research on key questions of international security and national security policy is more important than ever. 

The Cato Institute will be hosting a paper workshop for graduate students on topics broadly related to international security and national security policy in Washington, D.C. from October 19-20, 2018. Topics may include a wide range of security issues, including but not limited to U.S. foreign policy, the sources and consequences of conflict, military effectiveness, grand strategy, civil-military relations, alliances and security institutions, terrorism, military intervention, diplomatic history, arms control and nuclear proliferation.

Participants will be expected to produce an original paper of journal-article length; the workshop will focus on paper presentations, discussion and suggestions for improvement, with the expectation that authors will go on to seek publication in external journals or to build upon this research as they move towards the dissertation phase of their studies.

Participants are particularly expected to highlight the policy relevance of their work. In keeping with the Cato Institute’s commitment to moving U.S. foreign policy towards prudence and restraint, the policy implications of papers should be broadly compatible with a pragmatic realist approach to foreign policy.

The workshop will be held at Cato’s offices in Washington, D.C. Participants will receive a stipend of $500, and will have reasonable travel and accommodation costs for the workshop covered. 

To apply, submit an abstract of around 500 words detailing your proposed research project, along with a CV, by no later than March 15, 2018 to juniorscholars [at] cato.org. Candidates should have a background in political science, history, public policy or a related field, and must have completed at least one year of graduate study in a PhD program by the time of the workshop. All candidates will be notified of the status of their application by May 1st, and draft papers will be due on September 30th.

Before President Trump and Republicans cut taxes in December, the federal budget deficit was projected to be $689 billion in 2019 and rising to $1 trillion by 2022, according to CBO. The tax cut will add about $280 billion to the deficit in 2019 but declining amounts after that.

Now Congress has agreed to a budget-busting spending bill that will add roughly $180 billion to outlays in 2019 and push the deficit well over $1 trillion that year.

The chart shows budget deficits as a share of gross domestic product (GDP) since 1950. President Obama was the Deficit King, presiding over a deficit in 2009 that almost hit 10 percent of GDP. President Reagan presided over a deficit of 5.9 percent of GDP in 1983.

If Trump signs the current spending bill, he will likely be the third president in modern history to preside over a deficit as huge as 5 percent of GDP. For the chart, I’ve used CBO’s June economic forecast, but newer projections may show higher GDP for this year and next.

Look at the chart. Abstract from the short-term fluctuations, and draw a long-term trend line in your mind. Scary huh?   

 

What do we do about this mess? Cato’s Ryan Bourne has a new study out soon on adding new budget rules to restrain spending in Washington.

Have you ever heard of the “Trial Penalty”? It is among the most important features of America’s criminal justice system, and yet there is no reference to it in the Constitution, it is not taught in high school civics classes or even law schools, and most lawyers have never heard of it. Nevertheless, the Trial Penalty is the grease that keeps the massive engine of American criminal justice humming along at peak efficiency.

So what is it? Simply put, the Trial Penalty is the array of penalties, paybacks, and repercussions that are inflicted upon criminal defendants who presume to insist upon exercising their Sixth Amendment right to a jury trial—or what Cato Research Fellow Trevor Burrus calls “bespoke justice.”

With more than 10 million arrests last year and the world’s highest incarceration rate, America’s criminal justice system simply cannot afford to provide each and every defendant with an expensive and time-consuming jury trial. Nor do we: These days, about 95 percent of criminal convictions are obtained through plea bargains rather than jury trials. In the federal system, the numbers are even higher—more than 97 percent of convictions come from plea bargains.

Think about that for a moment. The citizen jury is the cornerstone of American criminal justice. It is a historic and hallowed institution. Why would so few people choose to invoke such a precious and fundamental right as the opportunity to challenge the government’s case in court and force the prosecutors to convince a unanimous jury (in most jurisdictions) of guilt beyond a reasonable doubt?

The answer is the Trial Penalty, and a recent case from the Second Circuit Court of Appeals in New York, United States v. Tigano, illustrates what a pernicious and sordid tool of injustice it is.

Joseph Tigano and his father were arrested by the DEA in July of 2008, and charged with manufacturing 1,000 or more marijuana plants, conspiracy to distribute marijuana, and weapons charges. Those are extremely serious crimes, with penalties ranging from decades in prison to life. No doubt the prosecutors expected the case to play out like most criminal cases do, with the defendants agreeing to plead guilty in exchange for the government dropping some of the charges and/or recommending leniency at sentencing. And that is precisely what Tigano’s father did, in what looks like a pretty sweet deal: he pleaded guilty to a single count of manufacturing 50 or more marijuana plants; the conspiracy and weapons charges were dropped.

But Tigano not only declined to plead guilty, he also invoked his right to a speedy trial under the Sixth Amendment. Tigano’s refusal to engage in plea negotiations, and his insistence on going to trial promptly, were perceived as so extraordinary that the trial judge ordered him to undergo a mental competency exam. After receiving a clean bill of mental health, Tigano again insisted on his right to a speedy trial and also declared his intention to represent himself. This resulted in another competency exam and, when Tigano persisted in rejecting the prosecution’s plea offers, a third and final competency exam. This went on for nearly seven years while Tigano rotted in jail, repeatedly insisting upon—but not receiving the benefit of—his constitutional right to a speedy trial.

When his case finally did go to trial, Tigano was convicted on five of the six charges. But he appealed, arguing, among other things, that the violation of his speedy-trial rights meant his conviction should be vacated.

The Second Circuit agreed, noting that the competency exams—and the delays they entailed—“appear to have been prompted largely by Tigano’s repeated invocation of his speedy trial rights.” Indeed, one of the prosecutors told the trial judge that the rationale for a third evaluation was “not necessarily the competency question, but whether there is some other psychological problem that’s going to prevent [Tigano] from understanding the difference between what he potentially looks at as far as a conviction as well as what’s being offered by way of this plea.”

Translation: We are going to crucify this guy if he insists on going to trial, and only a crazy person would pass up the sweetheart plea deal we’ve offered him.

Unfortunately, we don’t know from the court documents precisely what sort of a deal Tigano passed up, but we do know that prosecutors exercise jaw-dropping discretion when it comes to plea offers—such as the six months offered to Aaron Schwartz, who was facing 35 years for breaking into a computer closet at MIT and downloading articles from a restricted academic database. (Schwartz committed suicide in 2013, while the charges were pending.)

And that’s just the tip of the Trial-Penalty iceberg. Other tools that prosecutors can bring to bear include adding charges to an indictment to increase a defendant’s exposure, threatening to bring charges against friends and family, intimidating pro-defense witnesses to discourage them from testifying, and hiding potentially exculpatory evidence until the eve (or even the midst) of trial.

Jury trials are time-consuming, expensive, inefficient, and—perhaps most importantly from the prosecutor’s standpoint—unpredictable. As a result, prosecutors have a strong incentive to avoid them, and they pass that incentive on to defendants via the Trial Penalty.

As Americans, we should be deeply suspicious of a criminal justice system in which people almost never choose to exercise their constitutional right to a jury trial. The fewer trials there are, the less opportunity there is for citizens to participate in the process and the less transparent—and accountable—our criminal justice system becomes. As Thomas Jefferson observed to Thomas Paine, “I consider trial by jury as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”

Mass plea-bargaining may be good for prosecutors looking to keep their numbers up, but it severely undermines the integrity of our criminal justice system. The Constitution does not countenance a Trial Penalty and neither should we.

Kim Jong-un threw a big military parade earlier today, reminding the world of his military power on the eve of the Pyeongchang Winter Olympics’ opening ceremony. Compared to the massive annual parade that takes place on April 15th (the anniversary of Kim Il-sung’s birth), today’s parade was smaller and less significant, though it did feature some interesting missile systems.

The first missile system of note was a new type of close- or short-range ballistic missile (C/SRBM) that, at first glance, looks similar to the Russian-made Iskander-M SRBM.

 

(New type of North Korean C/SRBM, February 8, 2018. Source: YouTube)

(Iskander-M SRBM system. Source: Wikipedia Commons)

Like the Iskander, the new North Korean system carries two missiles side-by-side in a four axle transporter-erector-launcher (TEL) vehicle. Another similarity of the two systems is fuel type: most C/SRBMs use solid rocket fuel. Although the type of fuel used in the new North Korean missile system cannot be determined from the parade video alone, it would be very unusual for a missile of its size to not use solid fuel.

The combination of the TEL and solid rocket fuel implies that the North Korean system is highly mobile and can be launched on much shorter notice than Pyongyang’s liquid-fueled Scud missiles. The new missile may have a shorter range and lighter payload than the larger Scud, but the smaller logistical footprint and shorter launch time of the new system could offer important tactical advantages.   

However, imagery analysts have noticed some external features of the new missile that are inconsistent with the design of the Iskander. Writing for NK Pro, Scott LaFoy says, “It may also be the case that this is a heavily modified Tochka system [another Russian missile]…[but] the imagery is insufficient for building a confident assessment.” Moreover, while the Iskander-M is a very accurate SRBM, the parade footage does not provide any definitive information about the accuracy of the North Korean missile.

Replacing or supplementing the Scud-based SRBM force with solid-fueled, highly-accurate C/SRBMs would be an important strategic development for North Korea. However, the images from the recent parade do not provide much information about North Korea’s the capabilities of the new missile system beyond some general inferences.

The parade also featured North Korea’s two inter-continental ballistic missiles (ICBMs), the Hwasong-14 and Hwasong-15. This is the first time that either missile has appeared in the parade, but both were successfully flight tested in 2017, so the missiles themselves don’t come as a surprise.

(Hwasong-14 on flatbed tractor-trailer, February 8, 2018. Source: YouTube)

However, the vehicles that carried the ICBMs are notable. Instead of being carried by the vehicle used during its flight tests, the Hwasong-14 was mounted on a flatbed trailer being towed by a truck. This tractor-trailer configuration was previously seen last April, but in that parade the trailer featured a large canister and equipment for erecting the canister—akin to China’s DF-31A ICBM. Both the canister and erector equipment were absent in the recent parade. The lack of a canister and erector, as well as the fact that the Hwasong-14’s rocket engine was covered up, suggest that the tractor-trailer configuration seen in today’s parade was for display purposes only. The Hwasong-15 was carried by the TEL that was used in its November 2017 flight test, but only four TELs appeared in the parade.

(Hwasong-15 on TEL, February 8, 2018. Source: YouTube)

The number of TELs in today’s parade is important because it represents a key vulnerability in North Korea’s ICBM force. All of the North Korean vehicles capable of carrying ICBMs are based on Chinese-made heavy logging trucks that were modified by the North Koreans to carry missiles, but no more than six of these trucks have been seen at one time. Kim Jong-un recently claimed that North Korea is capable of indigenously producing more large TELs for its missile forces. The TEL for the Hwasong-15 does have one more extra axle than the original logging truck, and the presence of five Hwasong-15s at the parade shows that the North Koreans can successfully modify their existing capabilities. However, the parade offers no evidence to substantiate Kim’s claim that the country can manufacture new TELs.

Looking beyond the military hardware featured in the parade, it’s important to consider the message the parade was trying to convey. Inferring the strategic intent or signal behind such actions is a very difficult task, and there is probably no one right answer, but that probably won’t stop commentators from declaring the parade a threatening display of power meant to intimidate or divide the United States and South Korea. This is a plausible explanation, but there is another way to view the parade that is equally plausible.

The recent diplomatic rapprochement between North and South Korea is a welcome change from escalating rhetoric about military action that characterized much of 2017. The military parade, which was announced shortly after the beginning of North-South dialogue, may be intended as a signal to North and South Koreans rather than the United States. Kim may be the most important individual within North Korea, but he depends on several power structures within his government for support and legitimacy. Conducting a military parade in the midst of diplomatic talks between Pyongyang and Seoul shows these power structures that Kim is not negotiating from a position of weakness and that military options for defending and advancing North Korea’s interests are not being neglected. The potential message the parade sends to Seoul is a reiteration of Kim’s bottom line that talks will not lead to denuclearization or regime change.  

Is it the economy, stupid? A preliminary analysis would have concluded that such a maxim would prevail in Costa Rica’s presidential race: unemployment is high (especially among the youth), the cost of living is one of the highest in Latin America, and public finances are at a breaking point. However, culture wars, in particular same-sex marriage, dominated the debate leading up to the first round of elections held on Sunday. How can this be explained?

From the beginning this was an atypical presidential race for Costa Rica, due to the rise of a right-wing populist candidate who led the polls for many months. With a messianic and authoritarian rhetoric of “rebuilding the country” aimed at a “direct democracy with no parties or corrupt politicians,” Juan Diego Castro, a well-known litigation lawyer and former minister of security, became the candidate of the until then miniscule and irrelevant National Integration Party.

Castro’s phenomenon showed once again something that had become evident during the previous election: Costa Rica, Latin America’s oldest democracy, is not immune to populism. The country harbors several conditions that feed such a phenomenon. There is a tremendous animosity towards the political class, which is perceived as both corrupt and inept. This resentment also affects the media, businesspeople, and the judiciary. The rise of violent crime—2017 recorded the highest homicide rate in the country’s history—and the perception that the authorities are too weak on crime, further feeds the anger.

A widespread corruption scandal, in which the incumbent Solis administration was directly involved, along with the judiciary and various opposition parties, dominated public attention for months and strengthened Castro’s candidacy. Just one month before the election, polls showed him and Antonio Álvarez Desanti, from the National Liberation Party, as the most likely candidates to move forward to the run-off on April 1.

Yet there was a January surprise. On January 9, the Inter-American Court of Human Rights responded to an inquiry from the Costa Rican government on what sort of legal protection same-sex couples should have. The Court ordered the country to modify its laws to give them the same legal protections that heterosexual couples enjoy. Due to the principle of “conventionality control” with which the opinions and rulings of the Court are endowed in the Costa Rican legal system, that opinion de jure legalized equal marriage.

The issue was not alien to the campaign. In December, a march organized by the Catholic Church in favor of the “traditional family” brought together hundreds of thousands of people in San José—including seven presidential candidates. For some reason, the fight against the so-called “gender ideology” was already receiving more attention than the economy. A poll later revealed that two thirds of Costa Ricans oppose the Court’s decision on same-sex marriage.

The effect of the Court’s opinion was immediate. Fabricio Alvarado, an evangelical preacher and the only congressional representative of the National Restoration Party, went from having 3% in the polls to leading them, after promising to withdraw Costa Rica from the Inter-American Human Rights System. Carlos Alvarado, from the incumbent Citizen Action Party (PAC), also benefitted after young progressive voters rallied to support him for being the only candidate that welcomed the opinion of the Court. Ironically, the new scenario harmed Juan Diego Castro, who in spite of his right wing populism maintained a moderate approach regarding the rights of gay people.

The Court’s decision is deeply worrisome, even for those of us who defend the equal rights of sexual minorities, since its legitimacy with public opinion—which is crucial for these issues to advance and avoid generating reactionary movements—is extremely weak. This does not mean that same-sex marriage should have waited for the approval of the majority of the population, but that the decision would have had a more solid standing if it had emanated from Costa Rican institutions. Unsurprisingly, a large segment of the population reacted negatively to the perception that a foreign court was imposing same-sex marriage on the country.

The first round of elections confirmed that this issue prevailed over any other topic—including the previously most important one, corruption. Fabricio Alvarado received nearly 25% of the vote, while Carlos Alvarado came in second place with 21.7%. Antonio Álvarez Desanti, who also tried to lash out against the so called “gender ideology” and equal marriage rights, finished third with 18.6%.

Unfortunately, missing from the debate was the economy. It is possible that the low inflation rates of the last four years (averaging an annual 1.9%) contributed to a false sensation of macroeconomic stability. A crisis is nonetheless looming given the unsustainable trajectory of public finances: the fiscal deficit reached 6.2% of GDP in 2017 and it is forecasted to rise to 7.1% this year. The central government’s debt has grown to almost 50% of GDP.

If the problem—caused by unconstrained public spending growth—is not tackled immediately, then the government’s indebtedness will push interest rates up higher—something that is already happening—thus hampering consumption and investment. Growth will fall and unemployment, already at 9.4%, will worsen. The government will asphyxiate the economy.

The future president will take over with this difficult dilemma and will be far from having a parliamentary majority. The structural reforms needed to avoid a crisis will require a lot of political capital. That is why the future president should have spoken frankly to the Costa Rican people about the magnitude of the fiscal problem and the measures required to fix it. Costa Ricans, however, chose to focus on the “culture wars.”

Some officials at Immigration and Customs Enforcement (ICE) are reportedly looking into the agency joining the Intelligence Community (IC). Making ICE, which is responsible to deportations, a member of the IC would be a mistake, putting our civil liberties at risk by giving the agency increased access to vast troves of information not related to immigration enforcement.

ICE officials have been pushing for this change since the Obama administration, but the close relationship between intelligence agencies and immigration enforcement officials is nothing new. Almost one hundred years ago, one of the most notorious set of deportations in American history occurred, thanks in large part to domestic law enforcement acting like a spy agency.

In 1919 followers of the Italian anarchist Luigi Galleani sent mail bombs to dozens of prominent public figures, including Attorney General Mitchell Palmer. Although the wannabe assassins failed to kill any of their intended targets, the bombings sparked the United States’ first “Red Scare.”

Palmer, Assistant Attorney General Francis Garvan, and Bureau of Investigation (BI) director William Flynn met shortly after bombings to decide on a course of action. They concluded that mass deportations were the solution to the Red menace, and made plans for an “Anti-Radical Division.” Garvan knew just the man to run this new agency, a 24-year-old former librarian named J. Edgar Hoover.

Hoover put his librarian skills to use, creating a database that included thousands of notecards that catalogued details related to individuals, publications, and organizations. This intelligence apparatus helped agents carry out the Palmer Raids. These raids resulted in thousands of people being arrested (many without warrants) and hundreds of “radicals” being deported. 

BI agents went undercover, and local police set up “Red squads”:

Local police were encouraged to set up their own “Red squads” and share their findings with Washington. Private detective agencies, employed by the struck companies, supplied huge lists of names. Under a variety of pretexts — which included purchase, seizure, and theft — whole radical libraries were obtained. Newspapers were collected “by the bale” and pamphlets “by the ton.” Forty multilingual translators searched foreign-language periodicals for names and inflammatory quotations. Stenographers were sent to public meetings to take down the content of speeches. In Washington one-third of the BI’s special agents were assigned to antiradical work; in the field, over one-half, many of them undercover.

The BI, like its descendant the Federal Bureau of Investigation (FBI), was a law enforcement agency, but it also engaged in extensive domestic intelligence activities. Today, the FBI is one of the 17 agencies that make up the IC.

Customs and Border Protection (CBP) and ICE, the two agencies responsible for border security and deportations are not members of the IC. Yet when the president or his administration mandates a “deportation force,” “extreme vetting,” and the collection of immigrants’ social media information, immigration enforcement authorities start to look incrasingly like spy agencies.

Because ICE targets are oftentimes hard to locate, strict enforcement of immigration law requires surveillance that inevitably affects Americans and immigrants alike. Plans to access billions of license plate images and automate the monitoring of visa applicants’ online behavior will hardly leave Americans unscathed.

The fact that ICE already uses surveillance tools isn’t an argument in favor of it being a member of the IC. Homeland Security Investigations (HSI), a branch of ICE, investigates a wide range of federal crimes, including human trafficking, money laundering, and art theft. And it already has access to a plethora of information housed by the FBI, Drug Enforcement Administration (DEA), the Bureau of Alcohol, Tobacco, Firearms and Explosives, and other law enforcement agencies.

In its last days, the Obama administration expanded the National Security Agency’s powers to share signals intelligence with other members of the IC without filtering it first. This should concern the millions of innocent Americans who communicate with or employ immigrants, because details about their lives could be swept up as part of immigration investigations, as Reason’s Scott Shackford explained:

If an American citizen is suspected of a crime that ICE is investigating, officials are required to get a warrant to get access to an American’s private communications. But if they are not the subject of an investigation or their communications get collected in intelligence-gathering that’s not about fighting crime, they do not. So, weirdly, Americans have more due process protections from warrantless snooping if they’re suspected of crimes.

For the purposes of ICE surveillance, it’s very easy to imagine that an American communicating with an immigrant (here legally or not) having his or her phone calls or communications accessed without even knowing about it. So if ICE is allowed to intrude further into the realm of intelligence, that increases the number of federal officials allowed to have access to secret snooping not just of immigrants or people in foreign lands, but of Americans here at home as well.

In addition to granting more officials access to raw signals intelligence, ICE membership of the IC would almost certainly lead to ICE engaging in “parallel construction,” a practice used and encouraged by the DEA and FBI. Using parallel construction, members of the IC share intelligence with state and local law enforcement, who then use it to make arrests. These local police departments then construct their own parallel chain of events in order to conceal the fact that IC members tipped them off. This practice, which violates the right to a fair trial, should end. If ICE joins the IC, it’s likely to occur more often.

The current administration’s immigration policies require that ICE gather and analyze more information about the lives of people living in the United States. At a time when ICE is putting more American citizens’ civil liberties at risk, administration officials should resist calls to put ICE in the IC.

It appears hurricanes are a catalyst for school choice. Hurricane Katrina hit Louisiana in 2005, spurring a substantial school system reform. Hurricane Maria hit Puerto Rico in 2017, and their education secretary, Julia Keleher, recently announced that private school “vouchers will be included.” This could be a great thing. 

But Puerto Rico better not follow the heavily regulated Louisiana model.

In order to participate in the Louisiana voucher program, private schools must administer all of the standardized state tests, maintain a “quality” curriculum, and surrender their admissions processes over to the government. And of course, these state-driven regulations come with unintended consequences. As shown in figure 1 below, only a third of Louisiana private schools choose to participate in the state’s voucher program, while participation is much higher in less regulated locations. Furthermore, my colleagues and I find that the regulations in Louisiana likely reduce the quality of participating private schools. And, unsurprisingly, the participating private schools start to look a lot like government schools.

But that’s not all. The first experimental evaluation in the world ever to find negative effects of school vouchers on student achievement was in Louisiana.

“Accountability” to the government may sound enticing for Puerto Rico. After all, their elites likely wish to prevent poor families from making bad decisions. However, the perceived short-run benefit leads to actual long-run costs. Top-down accountability measures prevent high quality schools from participating at all. And worse, they nudge otherwise autonomous private schools to behave like government schools. Why entice great schools to imitate the very institutions that children are so desperately trying to escape?

Besides, since private schools must attract their customers, they already face tremendously stronger accountability pressures than government schools.

Puerto Rico has a great opportunity here. But they must do this right. If Puerto Rico mimics Louisiana, their natural disaster could very well lead to an educational disaster.

January brought a new year to our calendars—more on calendars shortly—but a look at the public schooling values and identity-based battles for the month shows that nothing much has really changed. Some of the big battlegrounds of 2017—and years before that—are still big battlegrounds at the outset of 2018. Which should come as no surprise: A new year doesn’t suddenly make diverse people abandon the cultures, histories, and values they cherish.

Let’s look at some of the recurring conflicts in January:

  • Gender: How to fairly treat both transgender students and people who are concerned about privacy, and sometimes transgenderism itself, remains probably the hottest flashpoint in public schooling today. We posted three new battles on the topic in January, including two—one in Virginia, one in California—in which efforts to instill tolerance of transgender children was seen by some as indoctrination. The California incident included the “Gender Unicorn,” which was a source of concern in North Carolina in 2016. The third battle was in Clark County, Nevada, in which a boy who said he was gay but not transgender—how should that be handled?—but who felt more comfortable changing with girls, was using the girls’ locker room. There was also an update to a conflict in Kenosha, Wisconsin. There the school district settled with a transgender student who was required to wear a green wristband to monitor his bathroom access, as well as other policies that made him feel stigmatized.
  • Punished for Challenging Schools: Early in the month education grabbed national headlines as a teacher in Vermillion Parish, Louisiana, was put in handcuffs allegedly for speaking beyond the public comment period at a school board meeting, but many feared it was really because she was criticizing the board for giving the superintendent a generous salary increase while holding teacher pay flat. In Washington State at the end of the month, a father was arrested for allegedly threatening to hurt students who bullied his daughter when he went to her school to complain about the bullying. He said he made no such threats, and that school officials stereotyped him because he is heavily tattooed. Finally, a student in Lebanon, Tennessee, was suspended after posting a video she recorded in a school classroom criticizing the school’s handling of bullying. District officials said her punishment was not for her message, but for recording in a classroom without a teacher’s permission.
  • Sex: Battles over sex education and policies such as condom distribution in schools have erupted for decades, and in January debate occurred in Indiana over legislation that would require public schools to have parents opt their children into any lessons dealing with sex. Meanwhile, the Tigard-Tualatin school board in Oregon was poised to vote on removing school-based clinics where students could obtain birth control.

In addition to the battles we saw pop up in multiple places this month, an overlooked type of conflict that is illustrative of the inescapably zero-sum nature of public schooling also occurred. We have seen it before in places such as New York City and Maryland. In Texas, a school district voted against making the Hindu holiday of Diwali a day off on the district calendar, seeing adding such a holiday as a violation of church-state separation. But don’t districts take Christmas off? Yes, but the official reason often offered is that too few kids would come to school to make being open worthwhile. At a minimum, the result of such understandable reasoning is that small religious groups suffer while big ones get what they want. Mayor Michael Bloomberg captured the problem in 2009 when he explained why he opposed a request to put two Muslim holidays on the New York City district calendar: “One of the problems you have with a diverse city is that if you close the schools for every single holiday there won’t be any school.”

If only there were a way to fix a problem like that in this new year…. Oh, right: With school choice even small minorities could much more easily get their religious needs met, because rather than having to impose their holidays on all the people of an entire district, they’d just need a school or two that shares their religion, or that is even just willing to take their holidays off.

Don’t forget to check out and “like” the Battle Map Facebook page, vote in our latest poll there, and have a happy 2018!

Last November, Border Patrol agent Rogelio Martinez died in the line of duty.  At the time, it was unclear how Agent Martinez perished and many jumped to the conclusion that he was murdered.  Texas Governor Greg Abbott (R-TX) said Martinez was killed in “an attack.”  Texas Senator Ted Cruz (R-TX) went further, arguing that Rogelio’s death shows just how insecure the border is and that the Border Patrol needs more resources.  A spokesperson for the National Border Patrol Council, the union for Border Patrol agents, said that Martinez may have been bludgeoned to death by rocks.  They all jumped the gun.

Martinez’s death remains a mystery, but an FBI investigation found no evidence of an attack.  The government records all Border Patrol agent and Customs officer deaths in the line of duty.  A total of 33 Border Patrol agents died from 2003 through 2017 (Table 1).  The ratio of agents to deaths was the lowest in 2004, but more agents died in 2012.  The annual chance of a Border Patrol agent dying in the line of duty was about one in 7,968 per year during the whole period.  Only six of the 33 Border Patrol agents who died in the line of duty were murdered.  The only confirmed murder in 2017 was of Border Patrol Agent Isaac Morales.  Twenty-six died because of accidents and Rogelio’s death is still a mystery (Table 2).   

Although Border Patrol agents do sometimes die tragically, they are less likely to be murdered on the job than the average American.  Since 2003, about 1 in 43,824 Border Patrol were murdered each year while on the job.  That compares favorably to about 1 in 19,431 Americans murdered per year over the same time.   Regular Americans were more than twice as likely to be murdered in any year from 2003 through 2017 than Border Patrol agents were.

Hopefully, investigators will soon discover how Agent Rogelio Martinez actually died.  In the meantime, the political circus surrounding his tragic death should be a lesson to all public officials and unions involved: Don’t use the death of a Border Patrol agent to argue for policy changes until you have all of the facts.

 

Table 1

Border Patrol Agent Deaths Per Year

  Deaths Number of Agents Agents Per Death Percent Death 2003

1

10,717

10,717

0.009%

2004

3

10,819

3,606

0.028%

2005

0

11,264

N/A

0.000%

2006

2

12,349

6,175

0.016%

2007

4

14,923

3,731

0.027%

2008

2

17,499

8,750

0.011%

2009

3

20,119

6,706

0.015%

2010

3

20,558

6,853

0.015%

2011

2

21,444

10,722

0.009%

2012

5

21,394

4,279

0.023%

2013

0

21,394

N/A

0.000%

2014

3

20,863

6,954

0.014%

2015

0

20,273

N/A

0.000%

2016

3

19,828

6,609

0.015%

2017

2

19,500

9,750

0.010%

Total

33

262,944

7,968

0.013%

Source:  Customs and Border Protection.

Table 2

Border Patrol Agents, Cause of Death, and Year of Death, 2003-2017

Name Year Cause of Death Rogelio Martinez 2017 Unknown (Likely Accident) Isaac Morales 2017 Assault/Murder David Gomez 2016 Accident (Health) Manuel A. Alvarez 2016 Car Accident Jose D. Barraza 2016 Car Accident Tyler R. Robledo 2014 Car Accident Javier Vega, Jr. 2014 Assault/Murder Alexander I. Giannini 2014 Car Accident David R. Delaney 2012 Accident (Health) Nicholas J. Ivie 2012 Assault/Murder Jeffrey Ramirez 2012 Accident (Health) James R. Dominguez 2012 Car Accident Leopoldo Cavazos Jr. 2012 Car Accident Eduardo Rojas Jr. 2011 Car Accident Hector R. Clark 2011 Car Accident Brian A. Terry 2010 Assault/Murder Michael V. Gallagher 2010 Car Accident Mark F. Van Doren 2010 Car Accident Robert W. Rosas Jr. 2009 Assault/Murder Cruz C. McGuire 2009 Accident (Health) Nathaniel A. Afolayan 2009 Accident (Health) Jarod C. Dittman 2008 Car Accident Luis Aguilar 2008 Assault/Murder Eric Cabral 2007 Accident (Health) Richard Goldstein 2007 Accident (Drowning) David J. Tourscher 2007 Car Accident Ramon Nevarez Jr. 2007 Car Accident David N. Webb 2006 Car Accident Nicholas D. Greenig 2006 Car Accident George B. DeBates 2004 Car Accident Travis W. Attaway 2004 Accident (Drowning) Jeremy M. Wilson 2004 Accident (Drowning) James P. Epling 2003 Accident (Drowning)

 

Source: Customs and Border Protection.

In January, Kabul endured three deadly attacks. On January 20, the Taliban stormed Kabul’s InterContinental Hotel, killing 30 people (mainly foreigners) in a siege that lasted 14 hours. A week later, Taliban militants drove an ambulance into a designated safe zone, killing at least 95 people and injuring 158, while ISIS claimed responsibility for attacking the Marshal Fahim Military Academy west of Kabul that killed 11 Afghan soldiers. President Trump responded by contending that there could be no negotiations with the Taliban. And though his State of the Union address only briefly discussed foreign policy, the president vowed not to stop fighting until ISIS is defeated. 

But neither the Taliban nor ISIS is the key to understanding what’s going on in Afghanistan. Even turning attention toward Pakistan as a source of Afghanistan’s instability is proving to be unsatisfactory for those concerned about the region. So what do the Kabul attacks tell us?  

Most observers of the U.S. war in Afghanistan consider the attacks a signal from Pakistan in light of current tensions within the U.S.–Pakistan relationship, which is currently at its lowest point. Pakistan’s premier intelligence agency, the Inter-Services Intelligence (ISI), has a notorious relationship with the Taliban, Haqqani Network, and other militant groups. Since the U.S. invasion of Afghanistan, both India and Afghanistan have blamed Pakistan for continued militant violence in Afghanistan. For example, Mahmoud Saikal, Afghanistan’s Ambassador to the United Nations, alleged that the Kabul Hotel attack last week was organized in Chaman, a city in the Pakistani province of Baluchistan.

And Pakistan may feel compelled to send a message because of the Trump administration’s decision to come down hard on Pakistan. For example, President Trump singled out Pakistan’s support of militant groups and accused the state of providing them safe haven in the administration’s Afghanistan strategy and National Security Strategy documents last year. The administration subsequently cut Pakistan’s security aid. Pakistan, however, continues to maintain that it has eradicated all terrorist safe havens, and also claims that its leverage with the Taliban has been decreasing.

Yet it’s unlikely that the U.S. will do much to censure Pakistan, even if it is truly complicit in these attacks. The United States will threaten to cut aid (and has periodically with little success), or designate Pakistan a state-sponsor of terror (which has never happened), or remove its designation as a non-NATO ally (which has also never happened). Pakistan, meanwhile, will threaten to close NATO supply routes (which has happened multiple times) and end intelligence sharing (which has periodically happened), with both sides threatening joint counterinsurgency operations.

Instead, the Trump administration ought to be grappling with bigger questions. It is indeed concerning that Pakistan’s fingerprints may be on these attacks, but at the end of the day the United States has very little leverage over Pakistan. As with sanctions, cutting aid to other nations rarely alters state behavior.

Instead, the U.S.’s best bet is to find a political—and diplomatic—solution for Afghanistan that involves a continued focus on Afghanistan’s domestic security forces as a means to stabilize the country, rather than honing in on Pakistan and aggravating an already tumultuous relationship. 

These attacks are rooted in the current failure of the Afghan government to keep the country secure. Violence in Kabul has been steadily increasing, even as the Taliban have become weaker since the U.S. invasion. Afghanistan is becoming a desired destination for militant groups, including the ISIS–Khorasan, an offshoot of ISIS. Afghan government administrations have been consistently weak, and Afghani citizens often blame them for not providing sufficient security. For example, after the attack on the military academy, those living in the compound primarily blamed the Afghan government, even saying that current leaders should resign if they are unable to increase security.  

With regard to the war in Afghanistan, U.S. policymakers need to grapple with two realities. First, the U.S. can’t successfully achieve a stable and sustainable end its military engagement in Afghanistan without Pakistan’s partnership. And second, a reasonable and stable political outcome must involve the Taliban. Although the president declared his unwillingness to work with the Taliban, in the past the U.S. has been open to talks with the Taliban as a way to foster peace. In fact, the United States worked closely with Germany to convince Qatar to allow the Taliban to open its office in Doha in 2012. While the President has also been pushing Afghanistan to close the Taliban’s Doha office, experts have argued that closing the office would undermine chances of peace in Afghanistan. Finally, despite appearances, the Taliban have been using diplomacy to increase their political legitimacy. By not talking with the Taliban, the U.S. risks losing any leverage it may still have to broker a suitable political agreement in Afghanistan.

The past sixteen years have clearly shown that America and its allies can’t defeat the Taliban. And since the Taliban and other militant actors are not conventionally strong enough to defeat U.S. and ally forces, they will continue to target civilians. In other words, if the United States hopes to stabilize Afghanistan and withdraw its troops in the next few years, it must focus on increasing Afghanistan’s domestic security, improving its relationship with Pakistan, and being open to holding peace talks with the Taliban.

In his State of the Union address, President Trump railed against America’s current legal immigration system. Given that this system first originated in 1965, it is worth considering how his policies would have altered America’s flow of immigrants had Congress adopted his proposed policies in 1965. Based on his statements and bills that he has endorsed, President Trump’s ideal immigration policies would have banned at least 57 percent of all legal immigrants since 1965, nearly 23 million people. Such an extreme policy would have radically changed America’s population, economy, and culture.

How Trump’s Plans Would Have Cut Immigration

From 1965 to 2016, nearly 40 million immigrants received legal permanent residency in the United States. President Trump’s policies—fully implemented as he intends—would have reduced that number to just 17.2 million, banning at least 22.7 million people, a majority of all legal immigrants since 1965 (Table 1). Nearly 60 percent of the banned immigrants would have been sponsored by U.S. family members—children, parents, or siblings. The rest of the reduction would come from fewer refugees and asylees, no diversity visa lottery and similar categories, and a much smaller legalization program for illegal immigrants. See Table 2 at the end for a detailed breakdown of these categories.

Table 1: Legal Immigrants by Category, 1965-2016

Sources: Department of Homeland Security; Immigration and Naturalization Service; White HouseS.354 - RAISE ActH.R.4760 - Securing America’s Future Act. *The category for spouses and minor children of residents would be preserved, but under Trump-endorsed bills, no visas would be issued (see text below)

This estimate only considers the direct effects of his policies on the categories that he would reduce, not how those reductions would affect other categories. For example, fewer legal immigrants would reduce the number of naturalized citizens. This would, in turn, result in fewer citizens who could marry foreigners and sponsor their spouses and children. Conversely, the fact that his proposed legislation would issue no visas to spouses and minor children of permanent residents would cause more immigrants to naturalize and sponsor their spouses and minor children. These two effects would at least partially offset each other.

President Trump’s Policies

Diversity visas: Under the recent White House immigration framework, President Trump would eliminate the diversity visa lottery. This analysis also includes its predecessor programs that award green cards based primarily on the applicant’s nationality. From 1965 to 1983, many legal immigrants entered under quotas for nationals of the Eastern and Western Hemispheres on a first-come-first-served basis. The president has said that he opposes the lottery because it “hands out green cards without any regard for skill,” and this criticism would apply with equal force to these earlier programs. Ending the diversity visa lottery and similar country-based programs would have banned 9 percent of all legal immigrants to the United States since 1965: 3.4 million people.

Adult children, siblings, and parents: Under the White House framework, President Trump would limit family-sponsored immigration to spouses and minor children. This would have ended categories for adult children, siblings, and parents of U.S. citizens and for adult children of legal permanent residents. Ending these categories would have banned about 23 percent of all legal immigrants from 1965 to 2016: 9.1 million people.

Minor children and spouses: Under the RAISE Act—a bill that President Trump endorsed—the president would redefine “minor child” under the immigration laws to include only those under the age of 18, down from the current 21. This would have excluded about 20 percent of all children in the spouses and minor children category as well as asylees. Additionally, while the RAISE Act would theoretically keep the spouses and minor children of residents, it would prevent them from receiving any visas because it cuts their quota by the number of parolees—foreigners granted temporary admission for humanitarian reasons—who stay for more than a year. Based on available figures and analysis, this number appears to be greater than the allotment of visas, meaning that in practice, spouses and minor children of residents would never receive green cards. These changes would have banned about 10 percent of all legal immigrants from 1965 to 2016: 4 million people.

Refugees, asylees, and Cubans: In 2017, President Trump lowered the refugee limit to 45,000. This analysis deducts any refugees admitted above this limit in any year since 1965. Moreover, in his White House framework, as well as in the Trump-endorsed Securing America’s Future Act, the president has advocated for changes to asylum that would make it much more difficult for people claiming asylum at the border to apply. Finally, President Trump has stated that he believed that the wet-foot, dry-foot policy that prevented the deportation of Cubans back to the Cuba from the mainland was “unfair.” In January 2017, President Obama ended the practice, relieving Trump of the opportunity to do so. Had these policies been adopted in 1965, the United States would have reduced legal immigration by 7 percent: 2.8 million people.

Legalization for illegal immigrants: President Trump wants to end all illegal immigration by any means necessary—a wall, more agents, more surveillance, more deportations, etc. In addition to these measures, the Trump-endorsed Securing America’s Future Act would spend more in five years on border security than Border Patrol has spent in the last 50 years. Under President Trump’s ideal policy, no illegal immigration would mean no legalization programs for future illegal immigrants. As part of his current negotiations, President Trump is willing to trade a legalization program for Dreamers, 16 percent of the illegal population, for his measures, but the illegal resident population in the United States was very low in 1965, less than 270,000. Even if assuming that a 1960s Trump was forced to make this deal, it would have yielded a legalization of less than 100,000. Had illegal immigration been ended in 1965 or no legalization programs created, 8 percent of all immigrants since 1965 would never have received residency in the United States: 3.3 million people.

Finally, this analysis makes no alterations to the flow of employment-sponsored immigrants, even though President Trump’s RAISE Act would eliminate the current categories for employment-sponsored immigrants and replace them with a points system. It is likely that half of all employer-sponsored immigrants would not have qualified under its points system, but given that other immigrants may have taken their place, it is possible that the total number would have remained similar.

Figure 1 shows the trends in legal immigrants by category from 1965 to 2016, and Figure 2 shows what the trends would look like under Trump’s ideal policy.

Figure 1: Legal Immigrants by Category, FY 1965-FY2016

Sources: Department of Homeland Security; Immigration and Naturalization Service

Figure 2: Legal Immigrants by Category under Trump Immigration Policies, FY 1965-FY2016

Sources: Department of Homeland Security; Immigration and Naturalization ServiceWhite HouseS.354 - RAISE ActH.R.4760 - Securing America’s Future Act

Conclusion

President Trump’s policies would have radically altered the demographics of the United States and dramatically reduced its population. With no illegal immigration since 1965, the current immigrant population in the United States would further shrink by 11.3 million, with an unknown number of fewer entrants into that population since 1965. These reductions in the number of immigrants would have had even more profound effects on U.S. population and labor force growth, as it would also eliminate the children and grandchildren of these immigrants.

Setting aside the cultural contributions of these immigrants, fewer workers would have translated into much lower economic growth. According to the National Academy of Sciences, immigrants contribute more than $2 trillion to U.S. gross domestic product—a 57 percent reduction would reduce the size of the U.S. economy by significantly more than $1 trillion. Such a counterproductive policy would have made America a smaller, weaker, and less prosperous country than it is today.

 

Table 2: Legal Immigrants by Category, FY 1965-2016

  Actual Policies Trump Policies Decline Percent Decline Total

39,939,540

17,243,832

-22,695,708

-57%

Family-sponsored preferences

9,515,799

0

-9,515,799

-100%

Unmarried adult children of citizens

701,092

0

-701,092

-100%

Spouses & children of residents*

4,635,742

0

-4,635,742

-100%

Married adult children of citizens

973,184

0

-973,184

-100%

Siblings of citizens

3,205,781

0

-3,205,781

-100%

Spouses, children, and parents

13,621,433

10,018,215

-3,603,218

-26%

Spouses of citizens

7,870,085

7,870,085

0

0%

Children of citizens

2,685,211

2,148,130

-537,081

-20%

Parents of citizens

3,066,137

0

-3,066,137

-100%

Employment-based preferences

4,543,852

4,543,852

0

0%

First: Priority workers

775,473

775,473

0

0%

Second: Professionals

917,355

917,355

0

0%

Third: Skilled workers and unskilled workers

1,455,471

1,455,471

0

0%

Fourth: Certain special immigrants

289,425

289,425

0

0%

Fifth: Employment creation (investors)

64,498

64,498

0

0%

Registered nurses

12,162

12,162

0

0%

Pre-1992 3rd (highly skilled immigrant)

427,042

427,042

0

0%

Pre-1992 6th (skilled or unskilled workers)

422,594

422,594

0

0%

Pre-1992 Family of 3rd and 6th

179,832

179,832

0

0%

Diversity & Country-Based

3,435,800

0

-3,435,800

-100%

Diversity lottery

1,032,678

0

-1,032,678

-100%

Diversity transition

115,938

0

-115,938

-100%

Nationals of adversely affected countries

50,330

0

-50,330

-100%

Nationals of underrepresented countries

19,472

0

-19,472

-100%

Western Hemisphere

1,456,876

0

-1,456,876

-100%

Hemispheric nonpreference

615,038

0

-615,038

-100%

Western Hemisphere recaptured

145,468

0

-145,468

-100%

Refugees & Asylees

5,068,479

2,273,856

-2,794,623

-55%

Cubans

1,125,498

0

-1,125,498

-100%

Refugees

2,998,764

1,795,194

-1,203,570

-40%

Asylees

843,396

377,841

-465,555

-55%

Parolees

100,821

100,821

0

0%

Legalizations

3,346,268

43,200

-3,303,068

-99%

Nicaraguan Adjustment and Central American Relief Act (NACARA)

67,971

0

-67,971

-100%

Cancellation of removal

289,611

0

-289,611

-100%

Haitian Refugee Immigration Fairness Act (HRIFA)

31,217

0

-31,217

-100%

U Visa

52,136

0

-52,136

-100%

Registry Pre-1972

71,030

0

-71,030

-100%

IRCA Families

142,594

0

-142,594

-100%

IRCA Legalization

2,691,709

0

-2,691,709

-100%

Hypothetical Trump legalization

0

43,200

43,200

0%

Other

407,909

407,909

0

0%

Children born abroad to alien residents

106,658

106,658

0

0%

Other

301,251

301,251

0

0%

Sources: Department of Homeland SecurityImmigration and Naturalization ServiceWhite HouseS.354 - RAISE ActH.R.4760 - Securing America’s Future Act. *The category for spouses and minor children of residents would be preserved, but under Trump-endorsed bills, no visas would be issued (see text above)

The Department of Veterans Affairs (VA) has been scandal-plagued for years. It has run up huge cost overruns on hospital projects and been guilty of appalling mismanagement and fraud related to waiting lists for veteran’s care. Congress has held hearings on the VA’s failures and passed some reforms to make it easier to fire bad employees.

But a new Washington Post story suggests that the department still doesn’t have its act together.

The piece says that the VA fired 2,537 workers last year. Maybe that sounds like a lot, but the VA has a massive 381,000 employees, indicating an annual firing rate of just 0.7 percent. By contrast, the firing rate in the U.S. private sector is 3.2 percent, or four times more than the VA firing rate.

The WaPo story describes how one VA employee who was caught essentially stealing from taxpayers kept her job:

When the VA Medical Center in Bedford, Mass., spent hundreds of thousands of dollars hiring landscapers and ordering rock salt, mulch and crushed stone, one whistleblower in the department found it suspicious that the supplies never showed up.

Turns out they were never delivered, and an employee had steered the contract to her brother’s landscaping business, according to a recent investigation by the Office of Special Counsel, an independent federal agency that investigates whistleblower claims.

The employee was allowed to keep her federal job. She was demoted only one pay grade, despite President Trump’s VA Accountability Act, which allows for quick removal of employees who violate standards or break the law in the troubled agency. …

“By allowing an employee who engaged in this conduct to remain with the agency, VA demonstrates a shocking degree of indifference to government ethical standards, procurement regulations, and public integrity,” Special Counsel Henry J. Kerner wrote to the president in a recent letter.

The landscaping scheme was brought to the OSC’s attention by a whistleblower who led investigators to nearly $1 million in “improperly spent or documented purchases” at the Bedford VA. The whistleblower disclosed suspicious, frequent and significant purchase orders for landscaping materials, such as rock salt, mulch and crushed stone, and said the majority of these orders were never delivered to the facility despite payment.

Ultimately, VA largely substantiated the whistle-blower’s allegations. VA found that Dennis J. Garneau and his daughter, Heather Garneau-Harvey, as Bedford VA employees, steered $200,000 snow removal and groundskeeping contracts to a business owned by a family member, their son and brother, respectively.

VA also found that Dennis Garneau directed purchases of more than $750,000 in “landscaping materials without appropriate verification of delivery, among other purchasing irregularities.”

More on federal mismanagement here.

Leaders of the two parties in Congress have agreed to a budget deal that raises discretionary spending a huge $300 billion over two years. While $300 billion is the headline, the deal may end up hiking spending $1.5 trillion over the next decade as the near-term increases get baked into federal budgets in later years.

The sad irony is that December’s Republican tax cut is supposed to save Americans $1.5 trillion over 10 years. But the new spending is essentially a $1.5 trillion tax hike imposed on people down the road.  

The centrist group CFRB summarizes the irresponsibility:

No one who supports this bill can consider himself or herself a deficit hawk or fiscally responsible. … This bill not only reverses the sequester cuts without sufficient pay-fors, it also includes significant further increases in discretionary spending that reverse much of the pre-sequester caps. And to add insult to injury, it also proposes further spending meant to satisfy everyone’s Christmas list.

Politico notes, “The agreement increases defense spending this year by $80 billion and domestic spending by $63 billion beyond strict budget caps, according to a summary of the deal obtained by Politico. Next year defense spending will increase by $85 billion and domestic funding will be boosted by $68 billion beyond the caps.”

As during the George W. Bush years, the eagerness of Republicans to jack up defense spending has led them to cave in on nondefense spending:

“I’m not going to say every piece of it. But obviously we’re excited about the defense numbers,” said Marc Short, the White House legislative director. White House press secretary Sarah Huckabee Sanders also told reporters the deal accomplished “our top priority,” with the defense boost.

So enjoy your tax cuts while you can because the pressure to repeal them will mount as rising spending pushes deficits over $1 trillion and ever higher levels after that.

Hands On Originals, a t-shirt printing company in Kentucky, refused to print t-shirts promoting a gay-pride event, the Lexington Pride Festival. Its owners weren’t objecting to any customers’ sexual orientation; instead, they didn’t want to print the ideological message conveyed by the shirts.

The Gay and Lesbian Services Organization nevertheless filed a complaint with the Lexington-Fayette Urban County Human Rights Commission under an antidiscrimination ordinance that bans public accommodations from discriminating against individuals based on sexual orientation. The Commission ruled against Hands On Originals, but the state district court reversed on free speech and free exercise grounds, and the court of appeals (where Cato had filed a brief supporting the print shop) affirmed.

The case is now before the Kentucky Supreme Court. Cato has again filed an amicus brief, drafted by Prof. Eugene Volokh and UCLA’s First Amendment clinic. Our brief urges the court to uphold the right of printers to choose which speech they will help disseminate and which they won’t.

In Wooley v. Maynard (1977)—the New Hampshire “Live Free or Die” license-plate case—the U.S. Supreme Court held that people may not be required to display speech with which they disagree because the First Amendment protects the “individual freedom of mind.” Wooley’s logic applies equally to Hands On Originals’ right not to print messages with which they disagree, which is an even greater imposition than having to passively carry the state motto on your car’s tag.

Thanks to Prof. Volokh and his student, Ashley Phillips, for their work on the brief, and on this blog post.

Pages