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My colleague Pat Eddington has already taken a first pass at the newly unveiled legislation aimed at reforming Section 702, the controversial foreign intelligence surveillance authority that empowers warrantless surveillance of foreigners outside the United States.  While Pat focused primarily on the defects of the bill, I’d like to start by briefly surveying what I think it gets right, and then note a few other elements I was disappointed not to see included.  

Probably the two most salient features of the “USA Liberty Act” for civil libertarians are that it partially closes the so-called “backdoor search loophole” in 702, and that it codifies the recent end of Upstream “about” collection.  For those not steeped in electronic surveillance law, both of those will require a bit of explanation. 

The “backdoor search loophole” is explained well and in some detail here by the Brennan Center’s Liza Goitein, but here’s the essence of it:  Section 702 permits the warrantless targeting of foreign persons located outside the United States, subject to broad procedures for selecting targets and “minimizing” the information obtained.  With more than 100,000 persons targeted for surveillance annually, the scope of communications collection under this authority is, as one might expect, enormous, and includes messages the targeted individuals exchange with American citizens.  This provides a roundabout mechanism for obtaining the communications of Americans, which would normally require a particularized Fourth Amendment search warrant based upon establishing probable cause before a judge: That vast database of warrantlessly collected communications can now be queried using search terms associated with Americans, and their communications with foreign targets obtained. We know that the CIA and NSA query the 702 database for terms (such as e-mail addresses) linked to Americans thousands of times each year—and that the FBI does so even more frequently, though unlike their bretheren agencies, they have not provided any estimate of how often. This sets up a sort of constitutional shell game, where an authority sold as a counterterrorism and intelligence tool targeting foreigners with no Fourth Amendment rights can ultimately be used by ordinary criminal investigators to sift through the emails of citizens.  

The Liberty Act addresses that concern in part by requiring a warrant to access the contents of a U.S. person’s communication that was found by querying a search term linked to an American—again, an e-mail address being the simplest case.  This would, then, limit the ability of criminal investigators at the FBI to turn to 702 as a way of evading the need to establish probable cause for surveillance of their domestic targets.  I say it addresses the issue only “in part” for two reasons.  

First, the warrant requirement applies only to queries conducted for the purpose of obtaining evidence of a crime; warrantless queries on U.S. person–linked terms remain unencumbered if the purpose is to obtain foreign intelligence information.  Since these purposes often blur together in practice, this still leaves the government a fair amount of leeway in deciding which “purpose” to consider primary, at least for crimes with some plausible nexus to foreign intelligence.  Moreover, queries are often performed in the course of criminal investigations for a wide variety of reasons beyond seeking specific “evidence of a crime,” and the current language leaves ambiguous whether such searches are covered–though I am assuming that the intent was to do so.

But even when obtaining intelligence is clearly and genuinely the goal, the Foreign Intelligence Surveillance Act still requires a probable cause warrant to directly target an American, so 702 still provides a way around that requirement.  Many of the intelligence abuses of the 20th century involved nominal intelligence purposes. When the FBI spied illegally on domestic political adversaries in the 1960s and 70s, it rarely advertised its abuses by trying to make its surveillance the basis of a criminal prosecution, but rather used it for harassment, public embarrassment, or strategic advantage. Thus, closing that part of the loophole seems at least as important as restricting the repurposing of intelligence for criminal prosecutions.

Second, the warrant restriction applies when investigators access the contents of communications—not the communications metadata detailing when, how, with whom, and sometimes from what location a U.S. person is sending and recieving messages. While this is concerning, as metadata can often be extremely revealing, this exception is a closer call.  The case for permitting this is that it spares investigators the burden of expending valuable time and resources preparing a warrant application for communications that may have no bearing on their inquiry—which, in turn, may avoid further unnecessary intrusions on the targets.  It’s also true that, at least under current Supreme Court jurisprudence, metadata is generally not seen as subject to the Fourth Amendment’s warrant requirement.  Like many civil libertarians, I regard this as a profound error of both legal and technical reasoning, but as a practical matter, it may not make sense to impose a statutory warrant requirement on information that can, in fact, be obtained far more easily using other authorities: The likely effect would be to prompt the issuance of subpoenas or National Security Letters for the same metadata—and any other help by the same provider. Here a heightened standard short of “probable cause” may be an acceptable compromise pending a more comprehensive reevaluation of the protection due metadata, whether by Congress or the courts.

So much for backdoor searches.  The issue of “about” searches concerns the recently halted practice of scanning Internet traffic—including message content as well as headers—for the “selectors” tasked for surveillance.  The result was that messages could be swept up that were neither to nor from the target, but only mentioned—were “about”—the target of surveillance.  An unsurprising side effect of such collection was that it carried a much higher risk of intercepting wholly domestic communications, which are meant to be beyond the scope of 702.  Under pressure from the FISA court, the NSA finally halted such collection earlier this year.  The bill would codify that cessation, making clear that 702 is meant to authorize interception only of communications to which the target is a party.  This provision, however, has its own independent “sunset” clause, meaning that the limitation could be allowed to expire while the 702 authority generally remains in place. It would be better to make it a permanent restriction on the authority.

There’s an assortment of other procedural and transparency reforms I’ll try to survey in a follow up post next week, but those are the marquee changes. So what’s missing? New America’s Open Technology Institute has already put out a strong list of absent reforms worth looking at, which I’m largely in sympathy with, so I’ll save an in-the-weeds consideration for yet another follow-up post and focus on a few broad points.  

First, there’s little here that would tend to assuage foreigners’ discomfort with 702 surveillance—which means there’s still a risk that European courts will end up invalidating the Privacy Shield framework for international data transfers, with severe consequences for the ability of American firms to compete in European markets.  Foreign citizens may lack Fourth Amendment rights, but that doesn’t mean foreign govenrments are sanguine about the prospect of their citizens’ communications being indiscriminately scanned or collected.  One healthy way to narrow the scope of collection would be to limit the scope of “foreign intelligence purposes” for which communications can be intercepted.  The legal definition of “foreign intelligence” encompasses not just obvious matters like information relevant to counterespionage or counterterrorism, but also information relevant to the government’s conduct of foreign affairs—a catchall that can be stretched to cover a huge swath of ordinary foreign political and business activity.  If the public case for 702 authority was that it was necessary to monitor spies and terrorists, the statute should confine it to those bounds, especially if that is already its core use in practice.

Second, it’s not clear whether this addresses an issue alluded to obliquely by Sen. Ron Wyden, who hinted that 702 may be sweeping in wholly domestic communications.  I’ve speculated that one way this could occur is if a person who has spent time in the U.S., such as on a student visa, is targeted after leaving the country, making the archived messages they sent and received while here fair game.  More broadly, there’s no effort here to focus 702 on the problem it was initially pitched to the public as solving: Enabling the collection of strictly foreign-to-foreign communications that merely happen to transit through the United States (because, for instance, the foreign correspondents are using a U.S. email provider).  While there are post-collection or “backend” rules governing the use and dissemination of communications to which a U.S. person is a party, it would be preferable to have stronger up-front filtering requirements, leveraging data about user location the companies already possess to exclude such messages up front.

Third and finally, there are some good transparency measures here I’ll try to detail in a subsequent post, but still no requirement to estimate, even approximately, the number of Americans whose communications have been incidentally swept into NSA’s database.  The intelligence community repeatedly assured civil liberties groups that it was working on providing such an estimate, but then earlier this year, new Director of National Intelligence Dan Coats abruptly changed gears and declared the task infeasible.  Having discussed this with intelligence officials at some length, I’m persuaded that there are indeed legitimate challenges with generating a meaningful figure—and even, perhaps ironically, legitimate privacy concerns around how to do so.  But the public cannot meaningfully evaluate the privacy/security tradeoff implicit in this authority without at least a rough sense of the scale of its impact on citizens’ communications.

On the whole, it’s hard not to be disappointed in this draft, even though it would undoubtedly constitute a significant improvement over the current state of the law.  The list of what it fails to address is too long, and the areas it does cover, it covers spottily.  At a time when Republicans are loudly complaining about the perils of the “deep state,” one would have hoped it would be politically possible to go further than this.  

This afternoon, the U.S. Department of Commerce announced the preliminary results of its antidumping investigation in large civil aircraft from Canada, launched at the request of the Boeing Company in May. Commerce “calculated” dumping margins of 79.82 percent for Bombardier—the only Canadian aircraft producer in this market—which becomes the rate of duty that any U.S. purchaser would have to post with U.S. customs upon importation. This penalty comes on top of last week’s assessment of 219.63 percent subsidy margins in the companion countervailing duty case.

It goes without saying that neither Delta Airlines (the intended customer) nor any other U.S. carrier is going to pay a 300 percent tax to purchase these aircraft. Unless the U.S. International Trade Commission rules in February 2018 that Boeing is not threatened with material injury by these proposed Bombardier sales, the orders will go into effect (requiring approximately 300 percent duties, although those figures will change—but probably only slightly—between the Commerce preliminary and final), putting the U.S. market out of reach to Bombardier, and Bombardier aircraft out of reach to the U.S. carriers, who need these smaller planes (which Boeing doesn’t even produce) to serve less-travelled routes efficiently.

In a previous post, I described some of the methodological shenanigans that Commerce was likely to perform in this case. Confirmation of those and other capricious decisions will be possible after the official analysis memo is released.  But, if the ITC finds “threat of material injury” to Boeing by reason of these “unfair” prospective Bombardier sales, and AD and/or CVD orders are imposed, in all likelihood, there will be some major issues that Bombardier or Delta will want the U.S. Court of International Trade (or a NAFTA Chapter 19 panel) to review and determine whether Commerce acted beyond its authority.

Even if the ITC goes negative in February—finds no threat of injury—the market for the next 5 months will be in a state of suspended animation.  Uncertainty will rule.  Bombardier will not know how to proceed.  Should it build the aircraft in anticipation of exoneration?  Should it seek other markets? Will it be able to service its debt and keep its workforce? Delta and the other airlines will have to put off plans to modernize their fleets, while remaining unable to perform reliable cost-benefit analyses. The specter of a long adjudicative process offers only distant relief, with plenty of distortions and inefficiencies to endure in the interim.

The U.S. trade laws are a form of economic terrorism. They are deployed unexpectedly and with stealth; they cripple their intended targets, while generating enormous amounts of collateral damage to other companies, industries and jobs; and they cast a long shadow of uncertainty over the costs and conditions of operating in the market prospectively. 

Maybe the political and economic fallout from this case will bring scrutiny of these laws to the level they have long deserved.

Previous Posts on this Topic:

Viewers of Anthony Bourdain’s CNN series Parts Unknown last weekend were treated to the raconteur’s visit to the city-state of Singapore. Along with Bourdain’s usual noshing, imbibing, and bantering about the food culture with knowledgeable locals, he also made time for drinks with Donald Low to discuss the country’s economic and political culture. Among Singapore’s hallmarks according to Low, an Associate Dean at the Lee Kuan Yew School of Public Policy, was the desire to attract foreign capital and an “understanding that free trade is good for everyone.” 

Low’s remarks will not come as a surprise to readers of the Economic Freedom of the World annual report co-published by the Cato Institute, Canada’s Fraser Institute, and a number of other international think tanks. In the report’s 2017 edition Singapore earns a second-place ranking among the 159 jurisdictions examined for overall economic freedom, and a #1 ranking in the category of “Freedom to Trade Internationally” owing to its score of 9.25 (out of 10). Amazingly, this actually represents one of Singapore’s lower ratings since 1980, with the island country receiving a stunning 9.9 score in the category in 1990.

The results of Singapore’s free trade embrace have been spectacular, strongly contributing to its status as home to the world’s second-largest container port, stunning visual transformation, and dramatic rise in GDP per capita since earning its independence in 1965. 

Singapore’s success is, of course, multicausal, with free trade being just one of several key ingredients that have made the country the wealthy economic hub it is today. Such caveats aside, the country nonetheless stands as a rebuke to those who cling to protectionist policies and insist that such measures are necessary to ward off the alleged threat of foreign competition.

Late on Thursday afternoon, the Washington Post reported that President Trump plans to undermine American involvement in the Joint Comprehensive Plan of Action (JCPOA) by “decertifying” Iranian compliance with the deal and kicking the issue to congress.

This move is hardly unexpected: when he last certified Iranian compliance with the deal 90 days ago, President Trump reportedly told staff “he wants to be in a place to decertify 90 days from now and it’s their job to put him there.” Yet as that quote suggests, the President’s decision is not based in any reality-based assessment of the deal. Iran is in fact complying with the deal, a fact verified repeatedly by the International Atomic Energy Agency.

Many of Trump’s own advisors disagree with his decision. On Tuesday, Secretary of Defense James Mattis told Congress that he believed it was in the U.S. national interest to remain in the deal. They are undoubtedly aware that the President’s choice will most likely undermine or end U.S. participation in the nuclear deal, split us from our European allies, reduce the constraints on Iran’s nuclear program, and reduce America’s global credibility and negotiating power.

In a newly published Cato Policy Analysis, my colleague John Glaser and I examine the grounds for retaining the nuclear deal, and explore the alternatives that the Trump administration could decide to pursue. Our analysis suggests that the prospects for a better approach are bleak.

We examine four key alternatives to the JCPOA:

  1. Increased or Renewed Sanctions: Though the United States possesses an impressive and far-reaching sanctions infrastructure – including so-called ‘secondary sanctions’ – it is highly unlikely that new sanctions will force further concessions from Tehran. European allies will push back strongly against any new sanctions, and neither Russia nor China is likely to cooperate in creating a new sanctions regime when the United States is responsible for destroying the current deal.
  2. Challenging Iranian Influence in the Region: The United States could instead choose to push back against Iranian proxies across the Middle East, such as Hezbollah. But there are few groups or states which are practical partners for such a strategy, meaning the burden would fall most heavily on U.S. troops. The risk of blowback – endangering the lives of U.S. forces in Iraq, Syria and elsewhere – is a serious concern. This option also does nothing to prevent Iranian proliferation.
  3. Regime Change “from Within”: A popular idea among some anti-Iran hawks, this strategy would see the United States use sanctions and funding for pro-democracy groups inside Iran to destabilize the regime. The lack of any good group for support is one key problem with this strategy. Yet the bigger problem is simply that research has shown that regime change rarely works, and even when it does, it tends to produce worse outcomes.
  4. Direct Military Action: Targeted strikes on Iranian nuclear or military facilities is perhaps the most extreme option we examine. Put simply, there are no good options for a military strike on Iran; this was key to the Bush and Obama administration’s decisions to pursue diplomacy. Any military strike would likely escalate to a costly, large-scale war, further destabilizing the region and ironically most likely encouraging other states to seek a nuclear deterrent.

Contrary to the Trump administration’s statements, the nuclear deal with Iran is working. Though it has not solved – and was never intended to solve –every problem in the U.S.-Iranian relationship, the deal has halted Iranian proliferation and opened lines of communication and negotiation which can be exploited to defuse future tensions and improve relations over the long-term.

By decertifying Iran, President Trump is starting down a dangerous road towards a strategy which is far more uncertain, risky, and costly.

You can check out the whole report on alternatives to the JCPOA here.

 

 

All eyes have been on Equifax these past few weeks, as the extent of its data breach has unfolded.  But, private entities like Equifax are not the only ones collecting huge swaths of data.  The federal government also has extensive personal data on large numbers of Americans.  And the government is no more secure than Equifax or any other company.  In fact, government employees found out in 2015 that the Office of Personnel Management had been breached, exposing the most sensitive personal data to hackers.  Just last week, the Securities and Exchange Commission (SEC) revealed that its online filing system, EDGAR, had also been hacked. 

Somehow, even in the face of these massive breaches, federal agencies seem reluctant to reconsider the type of data they collect.  SEC Chairman Jay Clayton has said that his agency will move forward with the Consolidated Audit Trail, a data collection program that will place even more sensitive data in the hands of the SEC.    

In 2015, my former colleague, Mark Calabria, testified to just these risks.  Focusing on data collection efforts by the Consumer Financial Protection Bureau (CFPB), he warned the House Financial Services Subcommittee on Oversight and Investigation that the Bureau’s plans to collect transaction-level data would risk exposing millions of consumers’ personal and financial data to hackers.  This is despite the fact that the CFPB could fulfill its obligations with aggregate data that would pose no such risk to individual consumers.  And yet, the CFPB has shown no signs of heeding these warnings, even in the wake of multiple high-profile data breaches in the intervening years. 

I’m sure that each agency believes it is taking steps to protect the data, but I’m equally sure that Equifax thought it was taking steps to protect its data.  I’m sure OPM believed it was taking steps to protect its data.  (OPM announced only this week that it was hiring a new Chief Information Officer, specifically citing the need for increased cyber security following the breach more than two years ago.)  The problem is that as hard as these organizations try to protect their data, the hackers will be trying just as hard to crack it.

There may be legitimate needs for some data collection.  But, given the demonstrated risks, there is no excuse for using a dragnet approach.  Agencies should be held accountable for the data they claim to need.  They should be required to demonstrate, with particularity, why they need the data they say they need.  Whenever any part of the government either requires disclosure of or seeks control of individual-level data, it should also be required to explain why aggregate-level data would be insufficient for the stated data collection purpose.  These explanations should be publicly available, so that the people can decide whether the government has met its burden of proving that it should be permitted to hold the data it is requesting.

Requesting information is always easy.  It requires little effort on the part of the requestor, and it gives the appearance of diligence and near-scientific rigor.  Who doesn’t like data-driven solutions?  But it is far from costless.  It’s time the government justified imposing these costs on the people it is supposed to serve.

The Atlantic Council has released a new report on a key Chinese effort to develop infrastructure in Asia and beyond which deserves the attention of policymakers in Washington. Entitled “Silk Road 2.0: US Strategy toward China’s Belt and Road Initiative,” the Gal Luft-authored paper highlights some of the direct economic benefits U.S.-based businesses may realize through the China-led project:

The Trump administration is deeply committed to the development and upgrade of US domestic infrastructure, but little attention has been paid to the benefits for the US economy offered by infrastructure development abroad. Increased prosperity in the developing world will enable more consumers to demand American goods and services. US engineering, construction, and equipment-manufacturing companies like Bechtel, Caterpillar, John Deere, Honeywell, and General Electric could win lucrative contracts, and US defense and cybersecurity companies can help protect critical infrastructure worldwide. 

With more energy terminals, pipelines, storage facilities, and free-trade zones constructed around the world, the US energy industry would enjoy more destinations for its oil, gas, and coal. And with 80 percent of the people in the developing world not connected to the Internet, American tech companies like Google, Amazon, and Facebook can win numerous new users, as more people become connected to the World Wide Web via energy and communication infrastructure. In seeking new growth engines and job-creation opportunities, Washington would be remiss to ignore the benefits to US businesses offered by the [Belt and Road Initiative].

Such analysis comports with some of my own thinking expressed in a paper published this week. As the section focused on China’s infrastructure initiatives notes: 

U.S. businesses, workers, and consumers, bearing no direct financial risk from [One Belt, One Road] or the [Asian Infrastructure Investment Bank], stand to benefit from those initiatives to the extent that they succeed in spurring more trade and greater prosperity in the region…policymakers should recognize that, although China may not be operating directly out of the preferred U.S. playbook, its efforts could serve to advance the broader U.S. objectives of peace and prosperity in Asia.

During the Obama administration, the U.S. evinced concern over China’s effort to establish the Asian Infrastructure Investment Bank, which is a key element in the country’s strategy to improve and expand the region’s infrastructure. The administration’s stance was viewed as a mistake by a variety of analysts, and President Obama later attempted to finesse the issue by claiming it was just a misunderstanding. President Trump, for all of his strident anti-China rhetoric on the campaign trail, dispatched a member of his National Security Council to attend China’s first Belt and Road Forum last May, and is reported to have made comments favorable towards China’s infrastructure push. 

Such developments provide encouragement that the U.S. is trending away from its initial skepticism, if not hostility, towards China’s infrastructure initiatives. If so, it is a welcome shift, and one that we should hope continues. These are yet early days, but China’s leadership on this and other economic initiatives in the region could help to literally pave the way towards expanded trade and prosperity.

A new report on federal student loans from the National Center for Education Statistics came out today, and it is troubling. Much of the media attention is likely to focus on the default rates of borrowers who attended for-profit colleges—and they are atrocious—but the report’s contents condemn the entire system.

Delving into the data reveals that there is a whole lot of defaulting going on—among first-time students who began school in 1995-96 and took out federal loans, 13.7 percent had defaulted on their most recent loan—but there’s been a whole lot of deferring payment, too. The share of borrowers who were deferring or in forbearance stood at 13.3 percent. 31.8 percent were still repaying. And the 41.3 percent listed as “paid or closed without default” hadn’t necessarily fully paid off their loans, either. No, “this includes either loans that are paid off by the borrower or forgiven [italics added].”

As for students attending for-profit schools, yes they had the highest default rate. But, remember that for-profits take on the students with the greatest obstacles to success while receiving essentially no state subsidies or tax-preferred donations. Indeed, they pay taxes. Their default status for students starting in 2003-04—during the for-profit boom—is terrible at 34.8 percent. However, community colleges came in at 15.7 percent, which is also awful, given their low, directly subsidized prices and considering that, while their students often have significant obstacles, students at for-profit schools tend to have bigger ones. Of course, a smaller percentage of community college students borrow. And default rates at about 9 percent at public and private, nonprofit, 4-year colleges is hardly anything with which to be impressed.

The higher education system is flooded with taxpayer money producing oodles of negative results, including skyrocketing costs, credential inflation, and increasingly anemic learning. The federal loan story told by these data reinforces how much draining needs to happen, and a good place to start is phasing out federal loans.

China-based cryptocurrency exchange BTCC suspended all domestic trading in yuan last weekend. The decision came on the heels of a September 5 statement from regulatory authorities in China, which required all domestic cryptocurrency exchanges publish closing announcements, stop registering new users, and establish a schedule to cease yuan-denominated trading by September 15. Huobi and OKCoin — two other exchanges based in China — have announced similar plans to stop trading. To be clear: China has not banned the use of cryptocurrencies. It has banned cryptocurrency exchanges and initial coin offerings (ICOs). Even still, it has prompted some to consider whether a government might ban cryptocurrencies like bitcoin — and, perhaps more importantly, whether such a ban would be effective.

There seems to be no denying that governments can ban cryptocurrencies. Bolivia, Ecuador, Kyrgyzstan, and Bangladesh have already done so. Russia issued a draft bill to ban cryptocurrencies in October 2014 and recent rumors suggest it might follow through. More broadly, governments have taken steps to prevent other alternatives to their preferred monies. Cambodia recently suggested it might ban the dollar. Syria prohibited the use of any foreign currency in 2013. And the U.S. government shut down Liberty Dollar and E-Gold in the mid-2000s. Can governments ban cryptocurrencies? Absolutely. The question is whether — or, to what extent — a ban will actually discourage use.

Some bitcoin proponents have argued that governments cannot really prevent bitcoin use. Jon Matonis once stated that “a government ban on bitcoin would be about as effective as alcohol prohibition was in the 1920s.” How could a government prevent people from using bitcoin? It’s online. It’s pseudonymous. And, as Matonis notes, “demand for an item […] does not simply evaporate in the face of a jurisdictional ban.”

Or, does it? For starters, one must recognize that monetary demand — that is, the demand to use an item as a medium of exchange — is not quite like the demand for most other goods. Monies are subject to network effects. I can enjoy a fine bathtub gin even if no one else does. But the usefulness of a would-be money like bitcoin depends crucially on whether other people are using it. We must coordinate beliefs. If one does not believe others will use bitcoin, she will be less inclined to accept it herself. For cryptocurrencies that lack some non-monetary use, that means demand might fall to zero even if everyone would prefer it to the relevant alternative.

In general, governments might determine the medium of exchange by coordinating beliefs, employing transactions policy, and punishing users of alternatives. By declaring an item legal tender, for example, the government might create an especially salient focal point around which individuals can coordinate on a particular money. Legal tender status might be nothing more than a designation; it need not convey any special privileges under the law (though sometimes it does). Since I want to use the money you are using and you want to use the money I am using, simply stating that the dollar is legal tender and bitcoin is not legal tender might be enough to generate coordination on the dollar. As a large and powerful player in the economy, governments are often in a position to provide such a focal point.

Of course, if the net gains from switching to bitcoin are greater than the costs of coordination, we might establish some competing focal point to coordinate on the superior alternative. In this case, governments might resort to transactions policy — that is, committing to accept and spend its preferred money — in order to prevent bitcoin from gaining widespread acceptance. By collecting taxes and spending dollars (and not bitcoin), the government guarantees some demand for dollars and, correspondingly, limits the potential network size of bitcoin. Some governments will not be able to determine the medium of exchange with transactions policy. But a sufficiently large government can.

Even if a government is not large enough to determine the medium of exchange via transactions policy, it still has one last trick up its sleeve: punishments. By punishing those employing an alternative money, it lowers the expected benefits of the alternative and, hence, the relative demand for its preferred money. Whereas a sufficiently big government is required to determine the medium of exchange with transactions policy, a government of any size can determine the medium of exchange with punishments, so long as it is willing and able to mete out sufficiently severe punishments.

There are some obvious limits to the government’s ability to punish cryptocurrency users. For one, it has to find them. And, as Matonis and others have noted, cryptocurrencies like bitcoin are pseudonymous, making it difficult to tie an individual to his or her balance of bitcoin. Difficult, but not impossible.

Even if one has access to a perfectly anonymous payment mechanism, many transactions inevitably reveal one’s identity. When you purchase a good or service, there is usually some point in the transaction where you actually receive the good or service. And, at that moment, your identity is vulnerable to detection. That you can send or receive an anonymous payment is of little consequence if the other party in the transaction is a government agent. Sting operations are real.

More importantly, exploring the limits also reveals the vast range of transactions that would be relatively trivial to stamp out. A ban with significant punishments for those caught sending and receiving cryptocurrencies would surely see those “bitcoin accepted here” signs disappear. It would make finding a trading partner willing to use bitcoin a lot more cumbersome. Most people prefer to be on the right side of the law most of the time. Most routine transactions do not warrant the added costs of obscuring one’s identity or vetting one’s trading partner. Why risk being caught using a banned currency to buy milk and bread? Privacy is just not that important to most people in most situations. No doubt a government would find it difficult — perhaps even impossible — to eliminate all bitcoin transactions. But a committed government would have little trouble making bitcoin sufficiently unattractive for most users, significantly limiting bitcoin’s potential network size. In such a world, bitcoin would function as a niche currency — or, not at all.

There are exceptional cases, to be sure. If the government’s preferred currency is poorly managed (think: hyperinflation, not two-percent) or black market transactions are the norm, one might not hesitate to use a banned alternative. That seems to be the case in Venezuela at present. If one must operate outside the law just to buy lunch, she might not be too concerned about the risk of additional sanctions for using bitcoin. And, since everyone else is operating outside the law, she might be reasonably confident that others will accept bitcoin as well. But such cases are the exception. When bitcoin proponents maintain that governments cannot prevent bitcoin use, they do not usually limit the claim to such extreme scenarios.

Fortunately, very few countries have taken steps to ban cryptocurrencies to date. But the threat is legitimate. Governments might not be able to prevent all cryptocurrency transactions, but they can significantly discourage their use. With this in mind, we should continue to push for choice in currency. We should continue to explain the benefits of financial privacy and stateless monies. However, we should also support sensible regulation that would preserve most of the benefits from cryptocurrencies while eliminating the major justifications for outright bans. It is a second-best solution. In a world with powerful governments, it might be the best one can hope for.

[Cross-posted from Alt-M.org]

Earlier this afternoon, the House Judiciary Committee circulated its draft FISA Sec. 702 reauthorization bill. This is a preliminary readout of the major problems I see with this legislation.

Mandatory Data Destruction Not Mandatory

One of the biggest vulnerabilities Americans face today is the growing volume of their personal data being stored on servers in the private sector and in government. In the government counterterrorism (CT) context—and CT intelligence collection was the original rationale for this authority—there is simply no reason for the government to continue the collection and storage of the information of innocent U.S. Persons (a legal definition that includes citizens and legal permanent residents).

The bill as drafted would allow the government to do exactly that for at least 90 days for “foreign intelligence purposes” and it allows the Director of the NSA (DIRNSA) to waive that requirement on an individual and specific basis if DIRNSA determines that such waivers are “necessary to protect the national security.” All this provision will do is create more paperwork for NSA, but the waiver process could no doubt be largely automated, rendering this alleged reform meaningless. A genuine reform would 1) explicitly prohibit the government from obtaining and maintaining the data of Americans unless said Americans were the actual target of an authorized criminal investigation, and 2) require mandatory external audits (read Government Accountability Office) to confirm said data destruction.

No Penalties for Lying to the FISA Court

In September 2017, Demand Progress issued a report highlighting the number of times the NSA and Department of Justice have been caught violating Sec. 702, FISA Court orders, or both. From the report’s executive summary:

The FISC has twice found that certain Section 702 collection violated the Fourth Amendment. In 2011 the government revealed that as part of its “upstream” Section 702 collection it collected non-targeted, entirely domestic communications. When NSA violated the rules that were supposed to make this collection legal, FISC again deemed the practice “a very serious Fourth Amendment issue.”

For almost 12 years, both under Section 702 and other programs before it, NSA was always engaging in or retaining some kind of electronic surveillance the FISC would go on to deem unauthorized, and NSA would only fix the problem when threatened with criminal sanctions. 

The draft House Judiciary bill makes no mention of these past violations, much less proposes any remedies. House and Senate members apparently need to be reminded that the Constitution’s impeachment function is applicable to all civil officers of government who engage in such violations.

Hiding The Real Numbers

For over six years, Senator Ron Wyden (D-OR) has attempted to get two Administrations to come clean on the actual number of innocent Americans whose communications are swept up by the Sec. 702 program, to no avail. The House Judiciary draft gives the Director of National Intelligence (DNI) a pass on compiling and making public this information if the DNI deems that such a calculation is “not achievable.”

If AT&T, Verizon, and the other carriers have no problem finding you and me to give us our monthly cellular bills, there’s simply no valid excuse for the DNI to be able to bob and weave on providing the number of innocent Americans being caught in this digital dragnet. The House Judiciary Committee should not be in the business of legalizing the DNI’s subterfuge on the issue.

There are a number of other reforms that should be in this bill, but it is important to remember that the underlying premise of the FISA Amendments Act and the PATRIOT Act—that 9/11 happened because we didn’t collect enough information on the terrorists prior to the attacks—has been refuted by the Congressional Joint Inquiry and the 9/11 Commission. This draft is proof that when it comes to rolling back unnecesary and ineffective mass surveillance programs, those facts simply don’t matter.

The House Homeland Security Committee will markup and likely pass the Border Security for America Act (H.R. 3548) today. Among the bill’s 95 pages is this:

The Secretary of Homeland Security shall take such actions as may be necessary (including the removal of obstacles to detection of illegal entrants) to construct, install, deploy, operate, and maintain tactical infrastructure and technology in the vicinity of the United States border to deter, impede, and detect illegal activity in high traffic areas.

Media outlets are describing this as codifying Trump’s “border wall.” I have previously detailed the numerous problems with building a border wall, including the fact that it would require huge amounts of private land along the Southern border. This deprivation of the right to private property is serious, but it’s compounded by the fact that the government seizes the land first and only then, many years later in some cases, provides just compensation. Unfortunately, the Supreme Court has long ago signed off on this procedure. It’s a problem that Congress must fix.

The Problem of Seizing Private Land

Figure 1 is a map of the border that shows the federally owned portions in green. Tribal land, which comes with its own restrictions, is green with black stripes. The existing border fencing is in black and yellow. The yellow portions are vehicular barriers, and the bolded black is the pedestrian or “real” fence. The dotted line in Texas is the Rio Grande River. As you can see, most of Texas is without any barriers and is almost entirely privately owned.

Figure 1
Border Fencing and Federal Land

Source: Bloomberg

One reason why Congress built the fences where it did is due to the problems associated with seizing private land. In July 2007, Customs and Border Protection spokesperson Michael Friel explained to The Seattle Times that the fences “were going up first in New Mexico, Arizona and California, where much of the land already belongs to the federal government.” He added, “We realize that in Texas there are folks that own property, that have land on the border. That dynamic is different.”

DHS’s Inspector General (IG) concluded in 2009 that “acquiring non-federal property has delayed the completion of fence construction,” and that “CBP achieved [its] progress primarily in areas where environmental and real estate issues did not cause significant delay.” The IG report again:

For example one landowner in New Mexico refused to allow CBP to acquire his land for the fence. The land ownership predated the Roosevelt easement that provides the federal government with a 60-foot border right-of-way. As a result, construction of fencing was delayed and a 1.2-mile gap in the fence existed for a time in this area. CBP later acquired this land through a negotiated settlement.

The IG found more than 480 cases in which the federal government negotiated the “voluntary” sale of property, and up to 300 cases in which condemnation would be sought through the courts.

Legal Process and Legal Authority to Seize Private Land

Congress has already given the administration authority under a 1996 law and a 2006 law to condemn and seize land using eminent domain to build barriers. One way to address eminent domain along the border is simply to ban it. Rep. Ruben Gallego (D-AZ) has introduced a bill today that would do so. This would be effective, but it may not be politically feasible, given the wall fever that has descended on Congress.

Another approach would address the process. Right now, when Border Patrol wants to take someone’s land, they send them a letter offering them a nominal low sum of money for their land and threatening to file condemnation proceedings against them if they don’t accept it. In 2006, when the Secure Fence Act fences were built, many property owners accepted the low offer because they did not understand their right to negotiate over just compensation in court. Just compensation is a constitutional guarantee. Under the 5th amendment, “private property [cannot] be taken for public use, without just compensation.”

Just compensation refers to the fair market value of the property seized—what you could get for the land if you attempted to sell it—but less than what you would demand to receive in a voluntary sale. But in many cases, the seizure of a single strip of property in the middle of someone’s property can depreciate the value of the entire land. For this reason, it is necessary to present evidence in a court of the total impact of the seizure to the landowner. Other issues that may arise in this process are the exact boundaries of someone’s property and who exactly holds financial interests in the land. These issues also take time to sort out.

Seizures without Just Compensation

Here’s the problem: under the eminent domain statute, the federal government can seize property almost as soon as they file a condemnation proceeding—as soon as the legal authority for the taking is established—then they can haggle over just compensation later. It’s called “quick take.” Quick take eminent domain creates multiple perverse incentives for the government. 1) They can quickly take land, even when they don’t really need it, and 2) they have no real incentive to compromise or work with the land owner on compensation. The land owner’s bargaining power is significantly diminished. The federal government already possesses the property.

This means that for years, people who are subject to a border wall taking go without just compensation. The government is supposed to compensate the landowner for this time by paying interest on the agreed amount. But in the real world, many people cannot survive for years being deprived of income that they might have from the land. According to an NPR analysis of 300 fence cases, the resolved cases took more than three years to resolve. In other cases, the process took seven, eight, or even 10 years. Some cases are still pending a decade on.

Congress could rectify this injustice by requiring the federal government to work out just compensation before the wall is built or, better yet, before the land is taken. That would give the landowner a fair position to negotiate with the government and give the government a reason to respect their rights. That it would slow up a pointless waste of taxpayer dollars is just an added bonus.

E-Verify is the supposed silver-bullet of immigration enforcement. Despite its serious and unsolvable problems, the House Judiciary Committee was going to have a markup today on the Legal Workforce Act (LWA) that would mandate E-Verify for all new hires in the United States. Although they canceled the markup at the last moment, this is still a wonderful opportunity to explore the main reason why E-Verify is ineffective: employers ignore it.

E-Verify is a government system whereby employers enter the identity information of new hires via an online portal. The system compares these data with information held in the Social Security Administration (SSA) and Department of Homeland Security (DHS) databases. The employee is work authorized if the databases decide that the data are valid. A flag raised by either database returns a “tentative non-confirmation,” requiring the employee and employer to sort out whatever error has been flagged. If the employee and employer cannot sort out the errors then the employer must terminate the new employee through a “final non-confirmation.”

The states of Alabama, Arizona, Mississippi, and South Carolina have mandated E-Verify for all new hires in their states. Arizona was the first to mandate it on January 1, 2008, South Carolina mandated it on July 1, 2010, Mississippi on July 1, 2011, and Alabama on April 1, 2012. In those four states, the law demands that every employer must run every new hire’s identity information through the E-Verify system. The response to a Freedom of Information Act (FOIA) request filed by Cato shows that there are far fewer E-Verify cases or queries than there are new hires in these states, which means less than 100 percent of new hires are actually being run through the system (Table 1).

Table 1

Percentage of New Hires Run Through E-Verify by State

  Alabama Arizona Mississippi South Carolina 2008 3.64% 33.57% 11.66% 7.65% 2009 6.99% 43.49% 41.29% 23.73% 2010 13.53% 59.03% 40.41% 57.95% 2011 13.56% 57.06% 40.74% 73.12% 2012 38.69% 54.88% 44.22% 58.46% 2013 48.22% 60.92% 47.54% 69.87% 2014 45.77% 62.63% 41.44% 68.87% 2015 46.44% 73.58% 41.66% 68.64%

Sources: Author’s Calculations of Longitudinal Employer-Household Dynamics of the U.S. Census and Cato FOIA.

The number of E-Verify cases does differ somewhat per year compared to older data but the conclusion is similar: Only 57.6 percent of all new hires were run through E-Verify in 2015 in states where 100 percent of all new hires were supposed to be verified. The best-performing state was Arizona, which saw marked increases in E-Verify usage since its 2008 implementation. In 2014, Arizona had about 1.9 times as many illegal immigrants as Alabama, Mississippi, and South Carolina combined. 

At the very minimum, E-Verify cannot be effective if employers do not use it. And it’s no wonder so many employers ignore E-Verify as it comes with a 17-page memorandum of understanding and 139-page User Manual that employers must understand in order to run the program properly. Few people who are trying to run a business want to take the time to master the details of this complex government system just so they can hire somebody. Even if employers do take the time to master E-Verify, it does not provide a safe harbor from future government audits, as employers across the country have discovered. The 2006 immigration raid of Swift & Company, a Colorado-based meatpacker, found that 10 percent of the firm’s workforce were illegal immigrants even though Swift had used E-Verify since 1998. If E-Verify doesn’t work when it’s used, employers aren’t protected when the system makes errors, and they can still be punished when they rely on that system, the real question is why would any employer would actually use it?

Increasing E-Verify compliance would require worksite visits and remote audits, just like the current I-9 system. If Arizona, Alabama, Mississippi, and South Carolina cannot assure better than 73.6 percent compliance with E-Verify—all states with large political constituencies that demand immigration enforcement—how well will a nation-wide mandate fare in states that don’t have such constituencies? Not well.  

The low E-Verify compliance rate in states that have mandated the system indicates that it will fail to demagnetize the wage magnet if Congress ever mandates the LWA or a similar piece of legislation nationally. At that point, policymakers will demand more expensive and intrusive methods to guarantee that employers hire only legal workers, such as a biometric identity card. The major problems with E-Verify are economic, not technical. E-Verify has many serious problems but the low compliance rates should dampen enthusiasm among its supporters.

The other shoe is about to drop in the Boeing-Bombardier trade row.  But first, some background…

Last week, smack dab in the middle of the third round of the NAFTA renegotiations taking place in Ottawa, the U.S. Department of Commerce issued a preliminary determination in a countervailing duty case brought by the Boeing Company in May. The Countervailing Duty Law provides “relief” (usually in the form of import duties) to domestic industries that can demonstrate that they are “materially injured” or threatened with material injury by reason of sales of subsidized imports.  

In early summer, the U.S. International Trade Commission ruled, preliminarily, that there was a reasonable indication that U.S. manufacturers of large civil aircraft (i.e., Boeing) may be threatened with material injury by reason of prospective sales of aircraft from Bombardier to Delta Airlines, which may be offered at artificially low prices made possible by various government subsidies to the Canadian producer.

Subsequently, Commerce’s investigation turned up 16 different subsidy programs—equity infusions, launch aid, “provision of land for less than adequate remuneration,” various tax credits and incentives, and federal and provincial grants—constituting specific benefits to Bombardier by the governments of Canada, the United Kingdom, and the province of Quebec, which amounted to an aggregate subsidy rate of 219.6 percent ad valorem. 

By historical standards, that is a very large number. If finalized at that rate, the duty would put the U.S. market out of reach to Bombardier and—of greater significance to the U.S. economy—put Bombardier airplanes out of reach to U.S. carriers, reinforcing Boeing’s monopoly power, and ensuring higher costs of air travel and air shipping in perpetuity.

Understandably, many on both sides of the border are upset over these findings. Recriminations and demands for retaliation have been swirling. Canadian Prime Minister Justin Trudeau has threatened to cancel his government’s planned purchases of Boeing fighter jets. Even the UK government, concerned about the future of Bombardier’s manufacturing operation in Northern Ireland, has discussed retaliation.

Many analysts are interpreting Commerce’s announcement of these results as a manifestation of Trump’s “America First” worldview, with its timing intended to secure some leverage for U.S. negotiators in the NAFTA talks. But it is in no way apparent how this finding could or would be used to extract concessions from the Canadians somewhere in the negotiations. Meanwhile, the fact is that determination dates in trade cases are set according to statute (there is some scope for extensions), and this prelim was set well before the NAFTA negotiations were scheduled, which brings us to another unfortunate set of circumstances.

Just as passions are subsiding from last week’s tempest, today the Commerce Department will announce its preliminary finding in a companion antidumping case, which was also filed by Boeing in May. The Antidumping Law provides “relief” (usually in the form of import duties) to domestic industries that can demonstrate that they are “materially injured” or threatened with material injury by reason of “less-than-fair-value” imports (sales made at prices in the United States that are lower than “Normal Value.”). This is a very, very, very, very, very, very, very, very, very, very, very, very bad law, deceptively invoked under the guise of ensuring fair trade and level playing fields, which has no economic justification and is used increasingly by U.S. companies as a weapon of domestic commercial warfare to kneecap U.S. competitors and their own U.S. customers. As was the case with respect to the countervailing duty matter, the U.S. International Trade Commission ruled earlier this summer that there was a reasonable indication that domestic industry was threatened with material injury by reason of less-than-fair-value imports.

Based on the unscrupulous analysis that Commerce seems to have teed up in the AD case (the capricious details of which are described here and here), the results are likely to further inflame the situation and threaten progress in the NAFTA talks, if not North American trade relations writ large.

By the end of this year, Commerce will attempt to verify information on the record, accept new information, and modify its results, accordingly, in these companion cases. But it’s rare that Commerce makes changes favorable to the foreign exporter or U.S. importer between the preliminary and final determinations. Ultimately, the question of whether duty orders will be imposed comes down to the final injury determination rendered by the U.S. International Trade Commission. If the ITC finds that Boeing is not threatened with material injury because, for example, it finds that Boeing doesn’t even produce (nor is it capable of producing over the next few years) the kinds of aircraft that Bombardier is hoping to sell to Delta, then the cases will both terminate and all will be well. That decision is due in February 2018.

Or, if duties orders are imposed, the decisions can be challenged by Bombardier, Delta, or other parties in U.S. court or in a NAFTA dispute panel.  Although the Canadians seem to have a preference for the NAFTA panels, it is highly likely that the U.S. Court of International Trade would find all sorts of overreach by Commerce, if the Commerce analysis is based on the fictitious sales and incomplete cost data that is on the record.

In the meantime, maybe trade analysts, policymakers, and the public can think more deeply about whether these trade laws really serve U.S. interests. The laws, as written, preclude objective analysis at the ITC, forbid consideration of the effects of these punitive duties on downstream U.S. companies and consumers, and give the Commerce Department vast discretion over administrative matters that dramatically affect the bottom line—the duty rates calculated and applied. Pointing the finger at Trump and his America First policies (an understandable impulse that has been on display this past week) instead of focusing on the disruptive effects of these commercial weapons, which are easy to self-administer and operate on statutory auto pilot, wastes an important opportunity to achieve greater awareness and, possibly, some reforms. Why not put these the trade remedy laws on the NAFTA negotiating table? Really, how can one NAFTA country’s producers be dumping in another NAFTA country when nearly all tariffs are zero and there is no protected market from which to cross-subsidze cheap exports?  Let’s make these laws inutile among the NAFTA countries. Or push for a public interest test that could authorize the ITC to actually analyze the adverse impact of duties on downstream industries. Instead of piling on and lazily blaming Trump, let’s figure out how to rein in these unbalanced laws that wreaked commercial havoc during the Obama, Bush, Clinton, Bush, and Reagan adminstrations.

CNBC reports that the burger chain Shake Shack is planning to trial a new restaurant in New York which will not have a traditional cashier’s counter. Instead, “guests will use digital kiosks or their mobile phones to place [and pay for] orders.” Their order will be processed immediately to the kitchen and the guest will receive a text message when their food is ready.

Great, you might think. Shake Shack is investing in innovations which could improve the productivity of remaining workers, increasing wages (indeed, they want to pay the lower relative number of staff in this restaurant at least $15 an hour). Such investments might provide a more efficient and desirable service to customers too. This frees resources and excess labor for other more productive pursuits in the economy.

But the kicker for why Shake Shack is undertaking such investments comes later in the article:

it’s likely that in the next 15 to 20 months that areas like New York, California and D.C., in which there are many Shake Shacks, will transition to a $15 minimum wage…Adopting this payment policy in Astor Place will give the company a chance to work out the kinks before it rolls out a $15 minimum wage in these locations.

Anyone who has been to a McDonald’s in France will know what’s going on here. Shake Shack suspects that the cost of labor will rise due to an increased minimum wage, and given that projection, it’s become economic to consider investments in labor-saving technologies. Higher minimum wages act in effect as a subsidy to automation.

But these investments for productivity improvements don’t come for free. A recent paper by Grace Lordan and David Neumark finds empirical evidence showing that between 1980 and 2015, increasing the minimum wage by $1 decreased the share of low-skilled automatable jobs by 0.43 percent in general and by 0.99 percent in manufacturing. Other jobs might be created of course, but they may well be more demanding or stressful, such as overseeing the running of multiple machines or having to have the skills to deal with technical problems etc. “Regulating to innovate,” subsidizing the rapid introduction of some technologies before they are actually high quality and cost effective, drives up prices for consumers too.

Perhaps more pertinently, low-skilled workers younger than 25 and older than 40, especially women, tend to be particularly affected by the disemployment effects of automation and can find it very difficult to find replacement work given their productivity levels.

As I concluded in a recent Daily Telegraph article:

If we are moving into a period when technological innovations are speeding up, we could be hiking minimum wages dramatically at just the wrong time. It will prove enough of a policy challenge as it is, to equip people with new skills to adapt in a rapidly changing labor market. Making more low-skilled jobs uneconomic by artificially hiking the cost of labor substantially could exacerbate this change at a time before new investments would otherwise make economic sense.

Being worried about this consequence is not to be anti-technology or anti-innovation. We all recognize that mechanization and technological innovation are the only way to sustainably raise living standards. But encouraging new investments by raising business costs and driving out low-skilled jobs is another matter entirely.

Just because Luddite efforts to destroy machines was economically harmful does not mean that destroying low-skilled employment opportunities would be beneficial.

More on the minimum wage here, here, here, and here.

President Trump and his advisors are stressing that they want tax cuts for the middle class, not high earners. Trump said, “the rich will not be gaining at all with this plan,” while Treasury Secretary Steve Munchin said, “Our objective is not to create tax cuts for the wealthy. Our objective is about creating middle-income tax cuts.”

The problem is that high earners, not those in the middle, pay the vast bulk of federal income taxes. As the chart below shows, the share of federal income taxes paid by the highest-earning 10 percent has steadily risen—from 49 percent in 1980 to 71 percent by 2014. Meanwhile, the share paid by everyone else has plunged. (Source: TF based on IRS).

The Trump team is painting itself into a corner with its “tax cuts for the middle-class only” rhetoric. I fear that to satisfy that promise in coming weeks, the administration will seek to expand further the most unproductive parts of the tax plan, such as child credits. In turn, that will reduce budget room for tax reforms that would promote growth and simplify the code.

Cutting the most damaging parts of the tax code—such as our high corporate income tax rate—would benefit all Americans by spurring growth and raising wages. That is what Trump and Republicans should be focusing on.

In a note to my last post, I observed that Liberty Street Economics, the blog of Federal Reserve Bank of New York, promised a follow-up to its post addressing the advantages of the Fed’s interest payments on required reserves. The follow up would address the benefits of paying interest on banks’ excess reserves and of thereby establishing a “reserve-abundant regime.”

That follow-up post has since appeared, under the title “Why Pay Interest on Excess Reserve Balances?” As I’d anticipated, it answers the question it poses by outlining some supposed benefits of having banks sit on immense piles of cash, without so much as hinting at the existence of any countervailing costs. As soon as those costs are considered, the supposed benefits turn out to be largely, if not entirely, fictitious.

Real and Pseudo Reserve Economies

According to the post’s authors, Laura Lipscomb and Heather Wiggins (Board of Governors) and Antoine Martin (FRBNY), a major advantage of paying interest on excess reserves (IOER) is that, by ensuring that banks possess “a relatively abundant supply of [excess] reserves,” it “makes the U.S. payment system more efficient.” Besides no longer having to rely “on intraday and overnight credit from the Fed,” the authors explain, banks made flush with reserves “are more willing to relinquish reserves early and are therefore engaging in less economizing and hoarding of reserves, making the payment system more efficient.”

Less economizing and [less] hoarding”? Usually, when we speak of someone “economizing” on X, we mean that he or she makes do with less of X. To do less economizing of X is therefore to require more of X. So how can banks do “less economizing and hoarding of reserves”? They can’t. They can either economize less and hoard more, or they can economize more and hoard less.

Nor can there be any doubt which of these alternatives IOER encourages. Before that policy was introduced, U.S. banks seldom held more than $2 billion in excess reserves collectively. Today they hold more than $2 trillion. If that isn’t less economizing and more hoarding, I can’t imagine what would qualify. Certainly to claim, as Lipscomb, Martin, and Wiggins do, that it marks an improvement in the efficiency of the payments system, seems on the face of it quite a stretch.

But let’s allow the authors to elaborate:

When reserves are scarce, banks are more reliant on the reserves they receive from other banks to make their own payments than when reserves are more abundant. So reserve scarcity exposes the payment system to a greater risk that a disruption at one bank could spill over and affect the system as a whole. Also, having a larger share of payments settled early reduces the potential consequences of a late day operational disruption.

Furthermore,

the amount of intraday credit the Fed needs to extend to banks to cover daylight overdrafts … is much lower when the supply of reserves is high. … A large supply of reserves gives banks a sizable buffer to make payments throughout the day without needing to wait for the receipt of other payments or relying on daylight credit from the Fed or other counterparties.

Finally,

In addition to needing less daylight credit, banks require less overnight credit in the form of discount window loans when reserves are abundant. The relatively abundant reserve environment means that fewer banks are caught short of balances at the end of the day, or at the end of a reserve maintenance period, which can lead to a scramble for funds, a spike in the federal funds rate, and banks occasionally accessing the discount window.

What’s wrong with that? The terminology, for starters. In the absence of IOER, although excess reserves are certainly “scarce” in the sense of being valuable, and therefore unlike salt water to a sailor or sand to a Bedouin, they are not usually “scarce” in the sense of being in short supply. The difference matters because, despite the impression conveyed in the above passages, the “scarcity” of reserves, properly understood, is not a problem with which bankers must cope, like so many farmers coping with a drought. Rather, the degree to which reserves are “scarce” is one normally chosen by the banks themselves. In econ lingo, it is itself the solution to an optimization problem, involving the weighing of private benefits and costs, including the costs of having to rely on occasional intraday and overnight loans.

The economics of the problem in question are actually pretty simple — so simple that, over the course of three decades, I taught them to several thousand undergraduates. As it happens, I still have a copy of my class notes.  Here is the relevant page:

For “prudential” read “excess,” and never mind the typos. The point is that the mere fact that banks can avoid having to borrow if they hold more reserves hardly suffices to establish that getting them to do so makes either the banks themselves or the public better off.

An Inefficient Reserve Market?

Am I then claiming that, without IOER, the market for bank reserves would be perfectly efficient, with banks holding just the right amount of excess reserves? Not at all. Without IOER, the market for excess reserves might be inefficient for several reasons. It might be so because the Fed doesn’t charge banks the right price for daylight overdrafts or overnight loans. And it might be so because the Fed doesn’t reward them sufficiently for holding excess reserves.

Setting aside the problem of routinely mispriced Fed credit, which was once very serious but has since been somewhat rectified, many economists, myself included, have long understood that there’s a case for reducing banks’ opportunity cost of reserve holding by paying a positive return on reserves. But that hardly means that banks can’t be overcompensated for their reserve holdings, or that they can’t thereby be encouraged to hold inefficiently large quantities of excess reserves.

The well-known arguments for paying interest on bank reserves are in fact arguments for paying a rate of interest reflecting the true opportunity cost of reserve holding. That means a “Friedman rule” rate not lower but also no higher than market rates on other liquid and risk-free assets.

Furthermore, because the Friedman rule applies to a hypothetical economy free of nominal rigidities and other frictions, even that rate is likely to be too high in practice. In their recently published study devoted to determining an optimal IOER rate in light of real-world frictions, Matthew Conzoneri, Robert Cumby, and Behzad Diba arrive at an optimal steady state tax on excess reserves of 20 to 40 basis points, implying an optimal IOER rate equal to the Friedman rate minus that optimal tax. Allowing for what the authors’ refer to as a “bank lending externality” pushes the optimal IOER rate down even more, and can even make it negative.

Yet almost since IOER was first introduced, in October 2008, the Fed’s practice has been to set its IOER rate above, if not substantially above, corresponding market rates, and to thereby encourage banks, not merely to fine-tune their reserve holdings to equate marginal (social) benefits and costs, but to pile-up as many reserves as the Fed sends their way.

In short, slice and dice it however you like, there is no way to make sense of Liberty Street Economics’ claim that the Fed’s interest payments on excess reserves serve to achieve an optimal quantity of bank reserves, or to otherwise make our payments system more efficient.

There’s No Such Thing as a Free (Liquid) Lunch

But hold on: can’t the Fed produce reserves costlessly? And doesn’t that mean that, even if there are more than enough of them, their presence can’t possibly be wasteful?

No, and no. Even if it didn’t cost a thing for the Fed to increase the nominal quantity of reserves, it costs plenty to get banks to increase their excess reserve holdings, which is what the Fed does by paying interest on excess reserves. Every dollar that banks keep in the form of excess reserves is a dollar they might instead have traded (along with some others) for a security, or lent. (And if you think that banks don’t lend reserves, you need to read this Nick Rowe post.)

As the chart below shows, in the good-old, pre-IOER days, when U.S. commercial banks hardly held any excess reserves, their total loans and leases amounted to about 100 percent of their deposits. Today, in contrast, banks hold excess reserves equal to about 20 percent of their deposits, and loans and leases equal to about 80 percent of their deposits. That change is a truer index of the cost of IOER.

None of this would matter if the Fed acted as an efficient savings-investment intermediary, as commercial banks are able to do, at least in principle. But the Fed isn’t a commercial bank, and it doesn’t employ funds at its disposal the way commercial banks do. It makes loans to other banks, but not to businesses or consumers. And its investments are typically confined to Treasury and some agency securities.

High-Tech Financial Repression

When central banks of less-developed countries impose high reserve requirements on their nations’ banks, for the sake of steering more of their citizens’ savings onto their own balance sheets, and thence to their governments’ coffers, economists call it “financial repression.” And they condemn it.

How come? Because ever since Adam Smith wrote his eloquent chapter (No. 2 of Book 2) on the subject, they’ve understood the crucial role bank lending plays in boosting economic productivity and otherwise spurring growth. In recent decades that understanding has been reinforced by a vast crop of writings on the topic, both theoretical and empirical.

When, on the other hand, the Federal Reserve gets banks to accumulate trillions of dollars in excess reserves, and to thereby fund its acquisition of an equivalent amount of government and mortgage-backed securities (where by “vast” I again refer not just to nominal but to real quantities), Federal Reserve economists call it “making the payments system more efficient”!

Call it what they will, the Fed’s policy is also financially repressive. By diverting savings to the government and its agencies and to whatever endeavors they favor, it denies that much funding to other prospective borrowers, many of whom — and small business owners especially — would employ the funds in question more productively.

According to a recent working paper by Brian Chen, Samuel Hanson, and Jeremy Stein, all of Harvard, overall bank lending to small businesses has yet to fully recover the ground it lost in 2008, and has hardly recovered at all at the top 4 banks. The evidence suggests, furthermore, that this sustained decline, which may have played a part in “the weak productivity growth in the decade since the crises,” reflects “a systematic and sustained supply-side shift.” Although Chen, Hanson, and Stein don’t investigate the cause of the shift, and don’t mention IOER as a possible culprit, it is certainly a likely suspect. Among other things it’s well-known that the biggest banks have also been among the chief accumulators of excess reserves.

But surely, you may be thinking, there’s a difference between forcing banks to hold more reserves, as some less-enlightened central banks have done, and rewarding them for doing so. There is, but it doesn’t make the Fed’s policy much less financially repressive. The difference is that, instead of imposing a “reserve tax” on banks and their depositors, the Fed’s above-market IOER rate grants them a subsidy proportional to the difference between the actual IOER rate and its optimal counterpart. Although the subsidy serves to somewhat enhance rather than to reduce the attractiveness of bank deposits, that slight gain is more than offset by the diversion of deposited savings to less productive uses.

Who, then, foots the bill for the subsidy? Taxpayers do. That becomes evident once one considers that the Fed, being a relatively inefficient intermediary, can afford to pay above-market rates on banks’ reserves only by either (1) sacrificing some of the revenue it would ordinarily remit to the Treasury or (2) taking extraordinary risks in order to earn more revenue than usual. As Deborah Lucas explained at a recent Shadow Open Market Committee meeting, the Fed has taken the latter course by using bank reserves, which are short-term assets, to fund longer-term Treasuries and MBS. “There is,” she adds, “no free lunch from that transaction.” Instead, the Fed’s extra earnings reflect increased risk, which

ultimately falls on taxpayers, who serve as (conscripted) equity holders for any risky government investment. When the budget treats cash flows generated from a market risk premium as revenues but does not recognize an offsetting cost, it is arguably equivalent to levying a hidden tax that confiscates the risk premium to pay for additional spending.

Off Balance

In fairness to the authors of the Liberty Street Economics post, they never actually claim to be offering an objective assessment of the the Fed’s practice of paying interest on banks’ excess reserves. Instead, they state their intent is to review some “potential benefits” of that practice. So perhaps it is unfair of me to suggest that their review is misleading.

But I don’t think so. First of all, when economists refer to a policy’s “benefits,”  they often mean its net benefits. So when that’s not what they mean, they should be clear about it, by at least noting that the policy also has costs that they have chosen not to consider. They should also make it clear that, because they are considering only the benefit side of a full cost-beneft reckoning, their assessment should not be understood as implying that the policy is a good idea. Instead of taking such precautions, Lipscomb, Martin, and Wiggens make it all too easy for readers of their article to assume that the “benefits” it describes do in fact suffice to justify the Fed’s IOER policy.

Yet all is not lost, for our authors can easily make up for any misunderstanding their post may have caused. To do so, they need only publish a companion piece, which they could call  “Why Not Pay Interest on Excess Reserve Balances?,” addressing all the disadvantages of paying interest on banks’ excess reserves, and especially of paying it at above-market rates. The piece should of course address the drag on productive investments that comes from stuffing banks with reserves they don’t need. But it needn’t stop there. It could also point out how above-market IOER undermines monetary control, and how (by severing balance-sheet management from monetary control) it makes it all too easy for the Fed to  play the part of a fiscal fairy godmother. Needless to say, the essay should studiously avoid even a whisper concerning any potential benefits to be expected from the policy.

I should think that a month would be more than enough time for three experts to prepare the essay in question. So let’s give them a deadline: November 1st. If they come through, we can all celebrate the general gain in understanding to which their two-part assessment is bound to contribute. And if not, we will still have learned something, to wit: that the Fed’s own assessments of the merits of its policies are best taken with a grain of salt.

[Cross-posted from Alt-M.org]

As the rankings in the recently-released Economic Freedom of the World: 2017 Annual Report make clear, the United States and China find themselves in very different places on the matter of trade policy. Occupying the somewhat middling overall position of number 63 (of the 159 jurisdictions ranked) in the “Freedom to Trade Internationally” category, the U.S. is nonetheless significantly ahead of China at number 108. 

Worth noting, however, are incipient signs that the two countries may be trending in different directions. Traditionally a relatively closed and protectionist economy, China through its words and even some of its actions has shown encouraging signs of moving towards greater openness (a topic I explore in a new policy analysis). In depressing contrast, trade policy under the Trump administration may be headed for a different track. A number of developments this year serve to illustrate this nascent divergence:

Rhetoric: Chinese President Xi Jinping offered a surprising but sorely-needed defense of free trade at the World Economic Forum in January. Likening the pursuit of protectionism to “locking oneself in a dark room” in his keynote address, Xi added that “While wind and rain may be kept outside, that dark room will also block light and air.” Similar sentiment has also been voiced in subsequent speeches by other senior leaders including Premier Li Keqiang and Vice Premier Zhang Gaoli.

President Donald Trump, meanwhile, said in his February speech to Congress that “I believe strongly in free trade but it also has to be fair trade”—language suggesting a less than full-throated embrace of the concept (Notably, in Premier’s Li’s own speech he reversed this formulation, stating that “In fact, free trade…is the prerequisite for fair trade.”). Privately, the President is reported to have told his chief of staff, “I want tariffs…bring me some tariffs.” 

New trade agreements: China continues to play a leading role in efforts to conclude the 16-member Regional Comprehensive Economic Partnership, a trade deal with a potential payoff estimated to be at least $260 billion over ten years. The country also has several other free trade agreements (FTAs) under negotiation, including a trilateral agreement with Japan and South Korea, and this year began exploring the possibility of a bilateral deal with Canada.

President Trump, in contrast, used his first week in office to withdraw from the 12-member Trans-Pacific Partnership, an agreement whose income gains were calculated at $131 billion through 2030 for the U.S. alone. While talk has been floated of a free trade agreement (FTA) with the United Kingdom, no formal efforts to begin negotiations have been undertaken with the U.K. or any other country.

Existing trade agreementsPresident Trump earlier this year expressed his desire to renegotiate the bilateral FTA with South Korea and more recently has threatened to withdraw from the agreement altogether. Negotiations have also begun on revising NAFTA—the subject of similar withdrawal threats by Trump—with early indications suggesting the Trump administration’s desire to take the deal in a more protectionist direction

China and New Zealand, meanwhile, announced in March their intention to further expand an existing FTA between the two countries.

The odds of China becoming a free trade paragon in the near future are admittedly remote.  Even marginal progress in that direction, however, would be most welcome, delivering benefits to China such as greater economic efficiency and access by Chinese consumers to higher-quality imports. Gains would accrue outside of China as well, with its resulting growth contributing to higher living standards among its trading partners.

On the other side of the Pacific, the Trump administration’s flirtations with protectionism are an ongoing concern. Although thus far mostly constrained to rhetorical flourishes, the White House’s decision to withdraw from the TPP has inflicted a real opportunity cost on the US economy, and further protectionist backsliding must be avoided. As President Trump seeks to Make America Great Again, he should remember that openness to trade has been a key ingredient in making the country the superpower it is today.

Ike Brannon’s recent post on the Jones Act is excellent, and those who have not done so already should give it a read. He notes some of the many economic hardships imposed by the law, which are shielded from proper scrutiny because its large costs are spread across the population and benefits concentrated among a relatively limited number of entities such as shipbuilders. 

Brannon’s concluding sentences, however, may be too kind to the political process:

[P]laces like Puerto Rico, Hawaii and Alaska would benefit most of all [from getting rid of the Jones Act], since they are overly dependent upon shipping prices.

However, as those are only two low population states and a territory with no voting representation, their inconveniences won’t resonate much with Congress.

Such language implies that the elected representatives of Alaska and Hawaii are fully cognizant of the burdens imposed by the Jones Act, but are prevented from making headway toward its removal due to insufficient political sway. The truth is far worse. As I noted yesterday at USAToday.com, all four members of Hawaii’s congressional delegation—Sen. Brian Schatz, Sen. Mazie Hirono, Rep. Colleen Hanabusa, and Rep. Tulsi Gabbard—stand foursquare in support of the law. Among the three members of Alaska’s delegation, both Sen. Lisa Murkowski and Rep. Don Young have touted their backing of the Jones Act (I have been unable to determine the position of Sen. Dan Sullivan, who has only held his current position since 2015). 

Why is this? While the definitive motivations of these politicians are known only to themselves, a reasonable guess can nonetheless be hazarded.

We can first dispense with partisan explanations, as Hawaii’s congressional delegation is comprised of all Democrats while Murkowski and Young are both Republicans. More relevant is the fact that according to the American Maritime Partnership, Alaska is ranked #3 among the 50 states for maritime jobs per capita. Hawaii, being the lone U.S. state comprised of an island chain which imports as much as 90% of its food, presumably has a significant maritime sector as well. Those engaged in such employment, and who profit most from the Jones Act’s concentrated benefits, are much more invested in its future than the consumers forced to bear its significant but relatively small individual costs. Commensurate pressures from constituents then win out over economic sense when politicians set their positions.

Further food for thought is to be found in the fact that the Senate’s most committed Jones Act critic, Sen. John McCain, hails from the landlocked state of Arizona. McCain’s legislation to grant Puerto Rico a permanent exemption from the Jones Act enjoys co-sponsorships from Sen. Mike Lee of Utah and Sen. James Lankford of Oklahoma, also of landlocked states. As a result, these Senators are more likely attuned to the Jones Act’s net economic drag than benefits to maritime special interests. This may all be coincidence, but it fits perfectly with the public choice model of special interests

When it comes to protectionist U.S. policy, bitter experience has shown that the truth is often worse than we think. 

As Republicans unveiled their tax reform plan last week, President Trump said, “We will cut taxes tremendously for the middle class.” Trump advisor Gary Cohn said, “We are giving tax cuts to middle- and lower-income Americans.” And House Speaker Paul Ryan said, “The entire purpose of this is to lower middle-class taxes.”

The problem is that “middle-class” Americans pay little in federal income taxes, while “lower-income” Americans pay virtually nothing. So Republican leaders are making promises that will be difficult to keep, and they are distracting themselves from the better message of growth and prosperity for all.

The chart below, based on CBO data for 2013, shows average federal income tax rates by income quintile. The highest-earning fifth of households paid 15.5 percent of their income to taxes, on average. The bottom two groups paid less than nothing, on average, because the refundable EITC and child credit wiped out their liabilities and gave them a subsidy. And the middle-income group that Trump, Cohn, and Ryan are talking about paid just 2.6 percent, on average.

The CBO uses a broad definition of “income” in these calculations, which inflates the denominators here and reduces the measured tax rates. Nonetheless, the data indicate who needs income-tax relief, and it is not the bottom three groups.

More important, dividing Americans into “classes” is the wrong way to go. Instead, Republicans should focus their tax reform talking points on economic expansion, business investment, entrepreneurship, job opportunities, wage growth, simplification, and international competitiveness. The Republican tax framework would advance all those goals, and thus benefit every American.

GOP leaders should leave the class struggle to the other party, and focus on how tax reform would support durable economic growth for the nation and broad-based prosperity.

Round 3 of the NAFTA renegotiation wrapped up last Wednesday. Round 4 is scheduled for October 11-15 in the Washington, DC area. How have things been going so far? Here’s one assessment:

The United States, Canada and Mexico said at the end of a five-day session in Ottawa there had been progress made in the talks but acknowledged that much work remained to conclude the negotiations by the end of the year.

The next round might be a big one. Inside US Trade notes that “controversial ideas for investor-state dispute settlement and a sunset clause tied to the trade deficit” will be “finalized and proposed at the fourth round.”

The original plan was to do the renegotiation over 7 rounds in total, concluding this year. However, the idea of the three NAFTA countries reaching an agreement by the end of the year was always a bit unrealistic and now seems even more so. If all goes perfectly, perhaps they could do it by the spring or summer of next year, but it won’t be easy.

On October 26, we will have a full day conference here at Cato talking about a wide range of issues in the negotiations. You can register here. The full details are at the link, but here’s a brief rundown.

We’ll start with a panel made up of some of the original negotiators to explain why we had a NAFTA in the first place. What was the pre-NAFTA situation, and how did NAFTA improve things? We’ll then have a discussion panel that delves into the various criticisms of NAFTA over the years. Next, we’ll talk a bit of politics, focusing on the United States and Mexico, which are the places where the political process could present a hurdle to domestic ratification of a new NAFTA. We’ll then have a session on how to “modernize” NAFTA, that is, how to incorporate provisions that have been developed in other trade agreements over the 20+ years since NAFTA was signed (such as on e-commerce and trade in services). Finally, we’ll have two breakout sessions, one on dispute settlement (a particularly contentious issue in the NAFTA renegotiation) and one on various product-specific issues that are being fought outside of NAFTA but could have an impact on the negotiations (trade in lumber, dairy, and aircraft).

We hope you can join us!

Richard Cohen’s latest column is sillier than usual, which is really saying something. (Hat tip to Jason Kuznicki, who sums up Cohen’s argument as “Trump is SO bad that we must not impeach him.”)

In purple, paid-by-the-metaphor prose, Cohen calls our 45th president “a dust storm of lies and diversions with the bellows of a bully and the greasy ethics of a street-corner hustler,” someone whose “possible crimes line up like boxcars being assembled for a freight train.” And yet, “we would impeach Trump at our peril.” 

Why? Because the president’s hardcore supporters would view impeachment and removal as the reversal of a democratic election. Worse, some of them—possibly with Trump’s encouragement—might resort to violence. We could see “a lot of angry people causing a lot of mayhem” if Trump is impeached and removed for an offense falling “short of a triple ax murder,” Cohen warns. 

Put aside the notion—itself anti-democratic—that a violent minority should enjoy a sort of heckler’s veto on a legitimate constitutional process: Cohen’s vision of Weimar-era street brawls is almost certainly overblown. The political science blog hosted by Cohen’s own paper recently poured some cold water on the Trumpist-insurrection scenario here.

Still, Cohen’s trepidation about any impeachment effort—even against a president he believes wholly corrupt and dangerous—is all too common. What other constitutional provision is considered so near-blasphemous to merit its own sanitized euphemism? Treason’s a big deal, but you don’t hear people calling it the “’T’-word.”

Yet on the rare occasions that the “‘I’-word” becomes a live issue—once a generation at best—the commentariat adopts a funereal tone, insisting that such a dire remedy should only be approached in fear and trembling. We can be almost certain that something horrible will happen.

It’s not just workaday columnists, but leading constitutional scholars who hyperbolize about impeachment. Charles Black, in his classic 1973 primer Impeachment: A Handbook, writes of the “the dreadfulness of the step of removal… the deep wounding such a step must inflict on the country.” It should, Black wrote, be looked on as “high-risk major surgery.” Actually, it’s a “constitutional nuclear weapon,” legal scholar Ronald Dworkin argued during the Clinton affair, to be used only in the “gravest emergencies,” lest it “shatter the most fundamental principles of our constitutional structure.”

More recently, Lawfare’s Jane Chong wrote a valuable essay on impeachment’s scope, in which she warns that “when the president has proven himself unfit for the office,” shrinking from removal “is no less a partisan dereliction of duty than unduly clamoring for [it].” But, she insists, impeachment is “nothing to celebrate and no better than a crime against our collective vessel, an act of barratry, when pursued for the wrong reasons…. It also involves a measure of violence from which our constitutional democracy can only slowly and by no means inevitably recover.”

Is impeachment really as grave as all that?

To be sure, you can find some of the Framers waxing solemn and sober about it: in Federalist 65, Hamilton writes of “the awful discretion, which a court of impeachments must necessarily have, to doom [the accused] to honor or to infamy.” He also believed that discretion to be necessary, periodically, as “an essential check in the hands of [the legislative] body upon the encroachments of the executive.”

Other Framers weren’t quite so dramatic. At the Philadelphia Convention, Massachusetts’ Eldridge Gerry insisted: “A good magistrate will not fear [impeachments]. A bad one ought to be kept in fear of them.” North Carolina’s Hugh Williamson thought there was “more danger of too much lenity than of too much rigour towards the President.” He was more right than he knew.

Contemporary impeachment-phobia seems to rest on two related notions; the first is one Cohen gropes for: that there’s something democratically illegitimate—even coup-like—about removing a duly elected chief executive before his term is up. The second reflects a fear that removal is uniquely destabilizing. Neither idea is particularly persuasive.  

There’s no denying that impeachment is in tension with pure democracy. Like other features of our system—judicial review, for example—it’s counter-majoritarian. In fact, the Framers, with their healthy fear of demagogues, made it possible not only to eject, but disqualify them from any future “Office of honor, Trust or Profit under the United States,” permanently barring the election of figures popular enough to win, but too dangerous to be trusted with power.

But impeachment isn’t a “coup”: It’s a lawful, “indispensable” method for “displacing an unfit magistrate” when necessary. And it doesn’t “reverse an election.” The 12th and 25th amendments have all but ensured that any president who’s removed will be replaced by a member of his own party and usually his own ticket. In the as-yet unlikely event of Donald Trump’s impeachment and removal, he’d be replaced by his hand-picked, lawfully elected running mate, Mike Pence. Some “coup.”

Nor is there much evidence for the fear that impeachment attempts court “constitutional crisis” and threaten to upend or “shatter” our constitutional structure. In his testimony opposing the Clinton impeachment, Lawrence Tribe described the remedy as “truly the political equivalent of capital punishment,” “empowering the Congress essentially to decapitate the executive branch in a single stroke.” Cass Sunstein warned that, given the presidency’s growth in power and importance, “the great risk of the impeachment mechanism is that it is destabilizing in a way that threatens to punish the Nation as much as, or perhaps far more than, the President himself. Since the purpose of impeachment is not to punish officials but to protect the Nation, this is a cruel irony.”

Of the two, Sunstein has remained admirably consistent and cautious into the Trump years; Tribe is now ready to man the guillotine himself. But our all-too-rare experience with presidential impeachment suggests their fears were overblown. The post-Watergate “crisis of confidence” in our institutions was actually good for us: it led to new checks and scrutiny on executive abuse. Weakening the presidency only “punish[es] the Nation” if you’re convinced eight decades of executive branch metastasization hasn’t gone far enough. Besides, the attempt to oust Clinton didn’t weaken the presidency in any way you’d notice (more’s the pity). The principal effect it seems to have had on executive power was forging a consensus to let the independent counsel statute lapse. Nor was the episode particularly destabilizing; late-90s prosperity rolled on, and the markets barely noticed it was happening.

A better argument for not impeaching any misbehaving president too eagerly is that we may only get one bite at the apple. As the legal scholar Michael Gerhardt warns: “if not done properly the first time, you might not get a second chance.” The constitutional structure makes it that difficult: “The framers set the bar appropriately high,” Cohen writes, “a majority of the House, two-thirds of the Senate — so high, in fact, that it has never happened.” Is “never” (or once, if you count Nixon) in 230 years is the correct rate of presidential removals? If not, you might be forgiven for wondering if they set the bar too high. In any case, when we conjure up specters of wounded democracy and constitutional collapse, we make it harder than it needs to be.

And there’s a cost to never, or almost never, invoking the remedy. Princeton’s Keith Whittington writes that “If Congress tolerates officers who commit high crimes and misdemeanors, it sends a signal to other officers that those crimes are not beyond the pale.” Tolerate bad behavior, you’ll get more of it. Right now, that seems at least as worthy a concern as the fear that we’ll resort to impeachment too frequently.

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