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Newly sworn-in Secretary of Education Betsy DeVos tried, and eventually succeeded, to visit a Washington, D.C., public school Friday morning. As warned by her opponents after she was confirmed by a razor-thin margin on Tuesday, she was met by protesters who intended to make good on the threat to block her at every turn. In this case, literally: according to videos like the one below, they physically tried to prevent her from entering the building.

The opposition to DeVos, as I’ve suggested over the last several weeks, has been over the top and, frankly, unfair. It also hasn’t done much to improve the sick state of the national political dialogue.

That said, there may be no one more sympathetic to objections to federal education meddling than me. Indeed, if the school refused to let DeVos visit because it did not want the disruption or political theater, I’d have been all for it.

But there is a way more constructive way to solve the problem of dangerous or unwanted federal intervention than blocking schoolhouse doors: work to end the federal Department of Education.

This does not, by the way, mean ending the federal role in keeping states and districts from discriminating in their provision of education, but that is much more properly a Justice Department responsibility.

The vast majority of what the Education Department does is collect taxpayer money, burn a bunch off in bureaucracy, then bundle the remainder into programs that tell states, districts and schools how to run education, all with little evidence of meaningful academic effects. This situation will likely improve a bit with the Every Student Succeeds Act, which does return some control to states, but a little better is still awfully bad.

The good news is that a window has opened for the protestors and anyone else worried about federal power — or maybe just interested in seeing the Constitution obeyed — to end the education department.

Rep. Thomas Massie, R-Ky., has just introduced legislation to end the Education Department. The text of the bill is simple: “The Department of Education shall terminate on December 31, 2018.” That’s it. I’d like to see what would happen to all the programs the department runs — they’re the meat of the problem — but the simple bill is a major step in the right direction.

I hope DeVos’ opponents would agree that ending most federal education intervention would be a good thing. But if not, don’t worry: I won’t try to visit your school.

Yesterday, President Trump’s pick for Attorney General, Jeff Sessions, was sworn into his office. Trump used the occasion to sign three executive orders relating to crime.  In this post, I want to briefly scrutinize these orders and explain what impact they may have on our criminal justice system.

One order calls for the creation of a task force on crime reduction.  The new Attorney General will appoint people to the task force and they will meet and discuss ideas and make recommendations for Trump. A second order is titled “Preventing Violence Against Federal, State, Tribal, and Local Law Enforcement Officers.” This order is also about exploring new ideas and strategies to “enhance the protection and safety” of law enforcement officers.  The third order concerns enforcing federal law against transnational criminal organizations that employ violence and derive revenue “through widespread illegal conduct.”  Working groups will be established to discuss ideas and make recommendations to Attorney General Sessions and President Trump.

To begin, these executive orders do not, by themselves, raise any legal or constitutional problems.  Sometimes presidents use executive orders to usurp the lawmaking power that is assigned to the Congress.  These orders do not fall into that category.  These orders only concern the apparatus of the executive branch itself.  Trump wants to make sure the Department of State, Homeland Security, and Justice Department are sharing information and coordinating their efforts, for example.  There’s no new law or restriction that applies to persons in the U.S. that did not already exist last week.

Second, Trump’s orders are also fairly conventional.  This is what Republican presidents usually do.  President Reagan and President George H.W. Bush created task forces and working groups to make recommendations about how to better organize the government and fight crime.

Third, one can also fairly say that Trump is simply following through on his campaign promises.  Illegal immigration was the centerpiece of his candidacy and these orders are mostly about the specifics.  It is true that many people from Mexico and Central America try to make it to the U.S. on their own.  Yet it is also true that there are transnational criminal organizations that are in the business of human smuggling. Trump wants recommendations on how to strengthen and improve the government’s efforts to combat these organizations.  No major surprise about that.

All in all, some might say that the orders are “no big deal.”

Well, not so fast.  There are several reasons that supporters of limited, constitutional government ought to be concerned about the orders that Trump signed yesterday.  For the past 30 years, the Right has been sounding the alarm about the growth of government and the federalization of crime.  In the landmark Lopez ruling, the Rehnquist Court invalidated the first federal criminal law in 60 years because it was simply beyond Congress’s power to enact.  Former Reagan Attorney General Edwin Meese has testified about the sorry shape of the federal criminal code and the need to scale it back.  The Federalist Society has also drawn attention to that problem.

Trump and Sessions seem not only uninterested, they seem intent on exacerbating the problem.  The orders instruct the task forces and working groups to see whether existing laws are “adequate” and to recommend legislation “defining new crimes” for the president’s consideration and signature.  Same thing with the federal “funding programs.”  If they’re not adequate, bring the president budgetary proposals.  Note that the budget of the Department of Justice has been on on upward trajectory for many, many years.  The Trump administration seems to want that growth to continue.

Trump’s heart may be in the right place.  He notes the awful circumstances in so many of our cities for poor minorities who have to live in violent neighborhoods and attend lousy schools.  Unfortunately, Trump seems to view the Constitution’s separation and division of powers as bugs instead of features.  To paraphrase The Cato Handbook for Policymakers, the identification of a problem does not mean that the government should undertake to solve it, and the fact that a problem occurs in more than one state (carjackings, lousy schools, obesity, termites) does not mean that it is a proper subject for federal policy.  

We will be sending complimentary copies of the Handbook to President Trump, Attorney General Sessions, and all members of Congress to remind them that the federal government is already too big, and that our fundamental law, the Constitution (to say nothing about our fiscal crisis), requires recommendations for downsizing federal operations.   

Yesterday, President Trump signed three executive orders to focus federal resources on fighting drug cartels, increasing overall public safety, and preventing violence against law enforcement officers.

Perhaps the most worrisome of these is the directive to “pursue appropriate legislation…that will define new Federal crimes, and increase penalties for existing Federal crimes, in order to prevent violence against Federal, State, tribal, and local law enforcement officers.”

While law enforcement officer safety is important, there is no evidence that local or state officials have been reluctant to capture and punish those who commit violence against police. Moreover, there is little empirical evidence that more punitive sentences deter crime generally.

Put simply, the federal government has no business getting involved when local law enforcement is doing its job. This argument is almost identical to the one Republicans like then-Senator Jeff Sessions used when they opposed the expansion of federal hate crimes protections to individuals with alternative sexual orientation or gender identity. Regardless of one’s position on the effectiveness of local law enforcement protection of LGBTQ communities and the prosecution of their attackers, one would be hard-pressed to find a police agency or prosecutor’s office that looks the other way when there is violence against police.

Federal criminal law should be used sparingly, and only in circumstances in which local or state law enforcement are unable or unwilling to enforce the appropriate law. Violence against police officers is taken seriously in every policing jurisdiction in America. The laws contemplated by this executive order would thus be duplicative, at best, and likely exceed the federal prerogative in criminal justice. 

Keeping law enforcement officers safe is a noble goal. But there is little evidence that new and harsher federal criminal laws will do anything at all to make American police safer.

This is a dog’s breakfast of a ruling on a dog’s lunch of an executive order. Somehow the Ninth Circuit judges manage to write 29 pages without discussing the heart of the matter: whether the Immigration and Naturalization Act, specifically section 1182, give the president the power to do what he did. Nebulous discussions of due process may be nice (or not) but they’re superfluous if the president went beyond his statutory authority. But apparently the court didn’t care about that.    And of course this whole mess could’ve been avoided if the executive order had gone through proper interagency review in the first place, as well as being more narrowly tailored. As it stands, it’s both over- and under-inclusive, sweeping in green card and other visa holders who’ve already gone through “extreme vetting,” as well as non-threatening graduate students and sick kids while not covering the potentially risky pool of nationals from non-covered countries (including European ones) who may have become radicalized.    In short, this is a judicial failure that compounds an executive one. Perhaps it’s time for the legislative branch (Congress) to step in and fix our broken immigration system once and for all.   

The federal government provides an array of subsidies to increase the consumption of biofuels such as corn ethanol. The subsidies include tax breaks, grants, loans, and loan guarantees. The government also imposes a mandate to blend biofuels into gasoline and diesel fuels.

A new study at DownsizingGovernment.org describes the damage caused by these policies. Subsidies and the Renewable Fuel Standard (RFS) harm taxpayers, motorists, consumers, and the environment.

The study by Nicolas Loris argues that Congress should end its intervention in the biofuels industry. It should terminate subsidies and repeal the RFS. Individuals and markets can make more efficient and environmentally sound decisions regarding biofuels without subsidies and mandates.

Investor Carl Icahn said that the RFS has created a bureaucratic market in tradable credits full of “manipulation, speculation and fraud” with the potential to “destroy America’s oil refineries, send gasoline prices skyward and devastate the U.S. economy.”

That language is probably too strong, but federal ethanol policies really are stupid. President Trump says that he wants to cut unneeded regulations and wasteful subsidies. The RFS and biofuel hand-outs would be good policies to target.

So for an interesting read illustrating the craziness of special-interest policies in Washington, check out “Ethanol and Biofuel Policies.” The next time you are at the gas station and see that “E10” sticker on the pump, remember that a tag team of D.C. politicians and corn farmers are picking your pocket. 

Payday loans are small, short-term, unsecured loans. The typical borrower can not easily borrow elsewhere, and the interest rates on payday loans are quite high. These factors generate enormous criticism of payday lenders for “exploiting” borrowers.

Economists Susan Payne Carter and William Skimmyhorn of the United States Military Academy provide evidence on this criticism:

We evaluate the effect that payday loan access has on credit and labor market outcomes of individuals in the U.S. Army. … We find few adverse effects of payday loan access on service members when using any of [our empirical] methods, even when we examine dozens of subsamples that explore potential differential treatment effects.

This should not be a surprise: for people with poor credit, payday loans can be better than the alternatives. These include going to a loan shark, which is even more expensive; or not borrowing, even to fund crucial medical care, or a rental payment that avoids eviction, or travel to secure a job.

Here’s good news: President Trump may sign an executive order suspending the failed conflict minerals provisions of the Dodd-Frank law. Days before, Securities and Exchange Commission Acting Chairman Michael Piwowar had issued two statements directing the SEC to revisit its enforcement of the same provisions.

The provisions, enacted in 2010 as part of the wider Dodd-Frank law, impose a complex and in places impractical disclosure regime on publicly held companies that make products containing such minerals as tin, tungsten, tantalum, and gold. The idea is that laying bare supply chains leading to war-torn areas of central Africa will facilitate consumer boycotts. Some reports on the draft executive order, such as that in the Guardian (via Simon Schama on Twitter), seem intent on judging the Loi Obama (as it was known in some of the affected regions) by these original intentions rather than by its actual results. Yet those actual results are no secret. More than two years ago, the Washington Post, confirming what was widely known already, ran front-page reportage about how the law had

set off a chain of events that has propelled millions of miners and their families deeper into poverty, according to interviews with miners, community leaders, activists, and Congolese and Western officials, as well as recent visits to four large mining areas.

As the economy of the area had destabilized, some miners with no other way to support their families had themselves thrown in with lawless armed groups.

At the same time, the law was set to impose billions of dollars in cost on American companies and consumers. I won’t repeat the case against the rules, since I summarized it in this space two years ago, and little appears to have changed since. (For more, check the coverage at Overlawyered.)

The rumored draft of the executive order looks good, but a president’s leeway under the law extends only to suspending its effect for a time. Putting this fiasco to an end will call on Congress to repeal the relevant sections of Dodd-Frank, and that is what it should now proceed to do.

When I debate one of my leftist friends about deficits, it’s often a strange experience because none of us actually care that much about red ink.

I’m motivated instead by a desire to shrink the burden of government spending, so I argue for spending restraint rather than tax hikes that would “feed the beast.”

And folks on the left want bigger government, so they argue for tax hikes to enable more spending and redistribution.

I feel that I have an advantage in these debates, though, because I share my table of nations that have achieved great results when nominal spending grows by less than 2 percent per year.

The table shows that nations practicing spending restraint for multi-year periods reduce the problem of excessive government and also address the symptom of red ink.

I then ask my leftist buddies to please share their table showing nations that got good results from tax increases. And the response is…awkward silence, followed by attempts to change the subject. I often think you can even hear crickets chirping in the background.

I point this out because I now have another nation to add to my collection.

From the start of last decade up through the 2009-2010 fiscal year, government spending in the United Kingdom grew by 7.1 percent annually, far faster than the growth of the economy’s productive sector. As a result, an ever-greater share of the private economy was being diverted to politicians and bureaucrats.

Beginning with the 2010-2011 fiscal year, however, officials started complying with my Golden Rule and outlays since then have grown by an average of 1.6 percent per year.

And as you can see from this chart prepared by the Institute for Fiscal Studies, this modest level of fiscal restraint has paid big dividends. The burden of government spending has significantly declined, falling from 45 percent of national income to 40 percent of national income.

This means more resources in private hands, which means better economic performance.

Though allow me to now share some caveats. Fiscal policy is only a small piece of what determines good policy, just 20 percent of a nation’s grade according to Economic Freedom of the World.

So spending restraint should be accompanied by free trade, sound money, a sensible regulatory structure, and good governance. Moreover, as we see from the tragedy of Greece, spending restraint doesn’t even lead to good fiscal policy if it’s accompanied by huge tax increases.

Fortunately, the United Kingdom is reasonably sensible, which explains why the country is ranked #10 by EFW. Though it’s worth noting that it gets its lowest score for “size of government,” so the recent bit of good news about spending restraint needs to be the start of a long journey.

P.S. The United States got great results thanks to spending restraint between 2009-2014. It will be interesting to see whether Republicans get better results with Trump in the White House.

Jae Lee came to the United States legally as a child but never became a citizen. In 2009, he pled guilty to a drug crime after his lawyer assured him that he could not be deported as a result. The lawyer was wrong, because the conviction made Lee subject to mandatory removal.

When Lee learned of this mistake, he asked the court to vacate his plea so he could instead face trial, arguing that his counsel’s assistance was ineffective. The district court denied this motion because of the overwhelming evidence against Lee, ruling that his conviction at trial was so certain that his counsel’s bad advice didn’t actually harm him, particularly given the much longer prison sentence he would receive if convicted after trial.

The U.S. Court of Appeals for the Sixth Circuit agreed that a jury wasn’t needed to determine Lee’s guilt and that denying the “chance to throw a Hail Mary at trial is not prejudicial” and therefore doesn’t violate Lee’s Sixth Amendment right to a jury trial. The court reasoned that that the only chance Lee had was acquittal by “jury nullification” and thus such a gambit was so irrational—and the idea of nullification so antiquated—that it is not to be allowed.

Lee is now pressing the matter at the Supreme Court, which has agreed to hear his argument, which Cato is supporting with this amicus brief. The idea of an independent jury’s nullification power is encompassed in the original meaning of the Sixth Amendment. Colonists frequently viewed juries as a shield against the crown, as juries frequently protected defendants against unjust and oppressive laws.

Independent juries were important enough in the American colonies that a section in the Declaration of Independence was devoted to assailing the King for depriving them of that right. The importance of an independent jury, and what such a jury meant at the time, informed the creation and adoption of the jury-trial right in the Bill of Rights. The meaning is made clear by Alexander Hamilton, who argued as defense counsel in 1804 that it is up to the jury to decide facts and the law, and it is in the deciding of the law that the nullification power comes from. The meaning is further solidified by John Adams’s statement that it is the duty of a jury “to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.”

The Sixth Circuit actually admits in this case that the power of juries to acquit, despite strong evidence for conviction, was central to the decision to enshrine the jury right in the Constitution. In spite of the incontrovertible evidence that the right to seek an acquittal by nullification was enshrined in the Sixth Amendment, Jae Lee had this right revoked simply because it was considered irrational or unwise.

The Supreme Court must now protect the right to pursue a risky trial strategy; it may not be wise to seek acquittal by nullification, but Lee should be able to decide that the risk is worth facing as against the certainty of deportation. It is not up to courts to pick which strategy is best for criminal defendants to follow, but judges should protect the right to choose a jury trial even when they might not make the same choice under the same circumstances.

The Supreme Court hears argument in Lee v. United States on March 28.

Senators Tom Cotton (R-AR) and David Perdue (R-GA) recently introduced the Reforming American Immigration for Strong Employment (RAISE) Act.  If it were to become law, RAISE would cut legal immigration by 50 percent over the next ten years by reducing green cards for family members of U.S. citizens and lawful permanent residents, slashing refugees, and eliminating the diversity visa lottery.  These goals are in line with President Trump’s stated objective to cut legal immigration in most categories. 

The RAISE Act’s goal is to increase wages for lower-skilled Americans by reducing the supply of lower-skilled immigrants.  Their press release argues that the “generation-long influx of low-skilled labor has been a major factor in the downward pressure on the wages of working Americans, with the wages of recent immigrants hardest hit.”  Under such a worldview, only a drastic reduction in green cards and the supply or workers can raise American wages - and it’s not crazy.

The National Academy of Sciences’ (NAS) exhaustive literature summary on the economic effects of immigration concluded that: “When measured over a period of 10 years or more, the impact of immigration on the wages of native-born workers overall is very small.  To the extent that negative impacts occur, they are most likely to be found for prior immigrants or native-born workers who have not completed high school—who are often the closest substitutes for immigrant workers with low skills.”  Although the effect is small, RAISE seeks to take advantage of the finding in the academic literature by inferring that if an increase in the supply of workers slightly lowers some wages then a decrease in that same supply will do the opposite.

It might seem odd then that RAISE doesn’t target employment-based green cards but that category is for highly skilled workers while the categories this bill would cut are more likely to allow in lower-skilled workers who have fairly high labor force participation rates.  I’ve rebutted Senator Cotton’s poor economic arguments for immigration restrictions before but recent research is even more compelling. 

A recent paper by economists Michael Clemens, Ethan Lewis, and Hannah Postel seems tailor-made to test what would happen if a bill like the RAISE Act were to become law.  The paper studies the effectiveness of an immigration policy “designed to raise domestic wages and employment by reducing the total size of the workforce.”  The U.S. government’s 1964 termination of the Bracero program for Mexican farm workers provides a natural experiment for their paper which is comparable to what would happen if RAISE becomes law.  Senators Cotton and Perdue will be disappointed to discover that this new research found that ending lower-skilled migration for farm workers had little measurable effect on the labor market for Americans who worked in those occupations.

Figure 1

Figure 1 from their paper compares the quarterly average real farm wages by states where Braceros made up more than 20 percent of their seasonal agricultural labor (black line), states where Braceros were fewer than 20 percent of the workforce (gray line), and states where there were no Braceros at or very negligible numbers (dashed line).  Clemens et al write that “[t]he figure shows that pre- and post-exclusion trends in real farm wages are similar in high exposure states and low-exposure states.  It also shows that wages in both of those groups rose more slowly after bracero exclusion than wages in states with no exposure to exclusion.”

How can that be the case, shouldn’t a leftward shift in labor supply increase wages?  Not necessarily as farmers had other options not usually contemplated by those who only think about the supply and demand for labor in isolation.  Instead of hiring more American workers or raising their wages, farmers turned to machines and altered the crops they planted to take account of the new dearth of workers.  Instead of planting crops that required labor-intensive harvesting or care, they planted other crops that required many fewer workers.  Farmers turned to machines like tomato pickers and changed methods for planting and harvesting other crops to take account of the newer wages they would have faced had they stuck with the Bracero-era farm techniques. 

The farmer’s actions in response to Bracero’s cancellation were economically inefficient and presumably raised the costs of production relative to their employment of legal workers under the Bracero program.  But since the Bracero program wasn’t available anymore, using more machines and changing techniques were still the cheapest options available.  Those options did not include hiring more Americans or raising their wages.  The detailed empirical work in this paper considers many other possibilities but convincingly answers them, such as pointing out that nearly all of the Braceros went home instead of staying on illegally and that the flow illegal Mexican farm workers did not pick up immediately.

The similarities between the end of the Bracero program and the RAISE Act are enough to make this new research a compelling reason to reject the RAISE Act out of hand.  The Bracero program allowed in half a million workers a year before it was eliminated which is about the same number of green cards that RAISE would cut.  Bracero workers were lower-skilled and many of those that would be cut by RAISE are also low-skilled.  Braceros were concentrated in some states and not others just like the new immigrants who would not be allowed under RAISE.          

The ending of the Bracero program was a policy shift very similar to that proposed by the RAISE Act.  Ending Bracero didn’t raise wages for American farm workers and we shouldn’t expect the RAISE Act to do the same for other low-skilled Americans who are suffering for myriad reasons that have nothing to do with immigration.  Senators Cotton and Perdue may intend to raise the wages of lower-skilled Americans, but their bill is more likely to line the coffers of firms that manufacture machines that can substitute for them.        

I previously reviewed the exceptionally poor arguments that the Trump administration used to defend its blanket ban on immigration from seven majority Muslim countries in the State of Washington v. Donald Trump. Now, in its appeal of the district court’s temporary restraining order to the 9th Circuit Court of Appeals, the government has added a new argument in favor of its position that is still fatally flawed. It claims:

The State continues to argue that Section 3(c)’s temporary suspension of the entry of aliens from seven countries contravenes the restriction on nationality based distinctions in [section 202(a)(1)(A) of the Immigration and Nationality Act (INA)]. But that restriction applies only to “the issuance of an immigrant visa,” Id., not to the President’s restrictions on the right of entry [under section 212(f)].

The government was right not to attempt this argument initially. Their argument is that a visa does not entitle the recipient to entry in the United States, but merely to travel to the United States. Therefore, they are free to discriminate at the border. To bolster the argument, INA 101(a)(4) does specifically distinguish between admission and visa issuance.  Essentially, they are defining “visa” in section 202 to include only the visa document that permits travel to the border, but does not grant status in the United States. And status is what grants a person the legal right to reside inside the country.

The problem is that the definition of a “visa” in section 202 includes “status” that grants a right to enter and reside in the United States. The State Department’s regulations define visa in section 202 to mean visa or status and have for as long as the INA has been around. Eligibility for status is either determined by an adjustment of status application for immigrants residing inside the United States or at the border for immigrants entering the United States on an immigrant visa for the first time. It is the act of granting entry that confers legal permanent residency status.

Thus, the government would be violating the prohibition on discrimination in section 202(a)(1)(A) just as much by denying entry as by denying visas. An immigration officer cannot deny entry based on nationality without also discriminating in the issuance of status to an immigrant at a port of entry.

Why “visa” cannot be interpreted narrowly

Not only is this interpretation based on the government’s own longstanding regulations, the interpretation of section 202 that the government offered during appeal would require it to adopt a variety of other positions that are at odds with the statute and regulations.

If “visa” in section 202 was interpreted to mean only the visa document, then adjustments of status applications for persons inside the United States would be exempt from the numerical limitations on visas in that section and in section 203. The clear intent of Congress was to control the number of persons who are entering the United States, not visa documents issued, and so the department has always held this view. Thus, the U.S. attorney in oral arguments before the district court admitted that per-country limits were about allocating how many people the United States allows “to come into the country.”

If the person is determined ineligible to enter, the visa is revoked at this point, and the State Department considers it not to have been issued at all. In other words, the department only counts “status” determinations against the visa caps, despite the fact that the section never mentions status. It is interesting to note on this point that the original version of the Immigration and Nationality Act of 1952 actually had consular officers grant immigrants “status” abroad, which could be revoked at entry if they were deemed ineligible.

Why the government cannot be biased in entry but not in visa issuance

This interpretation does not undermine the distinction between visa issuance and admission in section 101(a)(4) because a determination of inadmissibility under section 212 applies equally to admission at the border as it does to visa issuance abroad. Immigration officers inside the country rely on the same criteria to determine eligibility to enter that consular officials use to determine eligibility for an immigrant visa. A person granted an immigrant visa in an unbiased manner would not be entitled to enter at the border. He would just be entitled to similar unbiased treatment.

This proves that the law forecloses the idea that the government could be unbiased in visa issuance but not in entry. This is also why all presidential proclamations under 212(f) are immediately printed in the State Department’s Foreign Affairs Manual. The manual explains, “Aliens who have engaged in conduct covered by a Presidential Proclamation issued under the authority of section 212(f) may also be inadmissible under other sections of the INA or other statutes. These statutory inadmissibilities are to be considered prior to determining whether a Presidential Proclamation applies.”

The executive order itself admits that the State Department will be enforcing it by suspending visa issuance just as much as the Department of Homeland Security by suspending entry, and indeed, it has suspended visa issuance to nationals of those seven countries.

Another problem for the government’s view is that it implies that Congress intended to create a system in which it required non-discrimination for applicants abroad, but not applicants at ports of entry or inside the United States. Indeed, their argument would free the government to discriminate based on nationality in adjustment of status applications for immigrants who are residing inside the United States right now, even without a presidential determination that they are a “detriment.”

Not only is this plainly absurd, this would create the bizarre result that immigrants adjusting in the United States would have fewer protections against discrimination than immigrant applicants abroad. This leaves the government arguing that immigrants abroad have fewer constitutional rights than immigrants in the United States, while somehow also having more statutory rights.

This obviously cannot have been what Congress intended. In fact, as I have previously explained, Congress debated this very question of whether ending discrimination would allow unvetted individuals to enter the United States from certain countries where information is difficult to obtain. They rejected this argument. No member of Congress in 1965—whether they were for the bill or against it—believed that President Johnson could then have immediately undone their work with a presidential proclamation.

Last night’s CNN duel between Senators Bernie Sanders and Ted Cruz on the future of Obamacare was pretty illuminating for a recent arrival to the United States, with Senator Sanders’ playbook all-too-familiar to those of us from the UK.

Sanders wants a single-payer socialized healthcare system in the United States, just as we have in Britain. Any objection to that is met with the claim that you are “leaving people to die.” The only alternatives on offer, you would think, are the U.S. system as it exists now, or the UK system. Sanders did not once acknowledge that the UK structure, which is free at the point of use, inevitably means rationed care, with a lack of pre-screening. He also failed to acknowledge that lower health spending levels (indeed, even public spending on health is lower in the UK than the United States now) are not the same as efficiency—which is about outputs per input.

In the face of anecdote after anecdote about those saved by Obamacare and the virtues of a government-run health system, Cruz countered with some anecdotes from the UK showing the consequences of rationed care: a Scottish hospital turning away pregnant women, a woman in Wales waiting eight hours on the floor for an ambulance to arrive after a fall, and a hospital in Essex canceling life-saving cancer treatment because there were no free beds in intensive care. He could also have talked about the Mid-Staffs scandal, or a recent documentary showing doctors deciding between saving a cancer patient or a pensioner bleeding to death.

Anecdotes are powerful in helping to persuade people, and there are good reasons to use them in debates. Yet they are always susceptible to the charge that all health systems have extreme failures. Perhaps more powerfully then, the inadequacies of the UK system show up systematically in the data about how well conditions are dealt with (data from my former colleague Kristian Niemietz’s reports here and here):

  • In the United States, the age-adjusted breast cancer 5-year survival rate is 88.9 percent, compared with just 81.1 percent in the UK
  • The United States leads the world on the equivalent stat for prostate cancer (97.2 per cent) vs. 83.2 percent in the UK
  • Lung cancer: 18.7 percent in the United States vs. 9.6 percent in the UK; bowel cancer: 64.2 percent vs. 56.1 percent
  • Just in case you think I am cherry picking: U.S. survival rates are also better for leukemia, ovarian cancer, stomach cancer, and liver cancer—all of those for which I can find comparisons
  • The age- and sex-standardized 30-day mortality rate for ischaemic stroke is just 3.6 per cent in the United States vs. 9.2 per cent in the UK; for haemorrhagic stroke, the figures are 22 percent vs. 26.5 percent

I could go on. All of which is to show that your probability of dying from a range of common conditions is much higher in the UK than here. Perhaps that’s why (with no hint of irony) The Guardian’s write-up of a Commonwealth Fund Report suggesting the UK’s health system was “the best in the world” said “the only serious black mark against the NHS was its poor record on keeping people alive.”

President Donald Trump has repeatedly complained that the United States carries too much of the economic and military burden in NATO. He has even gone so far as to call the European alliance “obsolete” and to suggest that his administration might not fulfill the treaty’s Article 5 obligation that commits NATO countries to come to the defense any member that is attacked (Note: administration officials have repeatedly sought to reassure NATO allies that we remain committed to the collective defense of Europe, and Trump has contradicted himself on this score).

Many think this provocative rhetoric is just a ploy to get our NATO allies, who habitually underspend on defense and free-ride on America’s security guarantees, to pay more of their fair share of the burden. At the Washington Post’s Monkey Cage blog, Andrea Gilli argues this approach is unlikely to jolt NATO allies into spending more on defense, though. Among other reasons, most NATO allies “face financial and political constraints to increasing military expenditure” in part because U.S. security assurances “have freed up state funds in Europe for other priorities, including a robust system of social services.” And since cutting welfare benefits is typically a political non-starter, we shouldn’t necessarily expect NATO countries to boost defense spending due to Trump’s abrasive rhetoric.

But the historical record seems to contradict Gilli’s argument. According to the RAND Corporation, Europe has historically spent between 43 percent and 78 percent of U.S. spending on defense. The ratio reached its peak in 1980, and then again in 2000 - years that were at the tail end of periods of defense budget cuts. And according to the RAND report, one of the the most successful techniques in getting NATO allies to share more of the burden was “threats by Congress to withdraw its troops from Europe.”

The only period of signficant real growth in European defense spending was during the 1970s; otherwise European defense expenditure has been remarkably flat in real terms…

Historically, efforts to create incentives or to manage the burden-sharing problem have taken four different approaches. The first approach (1966 to the mid-1980s) was based on the threat of U.S. troop withdrawals. With a series of resolutions and amendments from 1966 to 1975, Senator Mike Mansfield sought to use the threat of U.S. troop withdrawals to force Europe to contribute more and to lessen U.S. costs. As noted, that effort—plus other factors relating to economic growth and the Soviet threat—may have had a positive effect: European defense spending grew by 44 percent between 1970 and 1984.

Certainly other factors contributed to this period of growth in NATO burden sharing - higher rates of economic growth, increased perceptions of the Soviet threat, defense budget cuts as we withdrew from Vietnam, etc. But U.S. threats to pare back its commitment to the region seem to have had a significant impact.

That said, European defense spending may never reach the levels that the Trump administration, or for that matter the Washington foreign policy community generally, would prefer. And while U.S. security guarantees are surely one reason for this, it also may be the case that European countries aren’t boosting defense spending levels because they don’t face any major threats. Increasing defense spending to 2 percent of GDP or higher won’t do much about the terrorism problem European countries face. And the supposed geopolitical threat from Russia, meddling in Georgia and Ukraine aside, is consistently exaggerated

Kentucky Senator Rand Paul has weighed in concerning the rumors that Elliott Abrams could become the Number 2 person at the State Department. “Crack the door to admit Elliott Abrams,” Paul writes, “and the neocons will scurry in by the hundreds.”

He goes on:

Neoconservative interventionists have had us at perpetual war for 25 years. While President Trump has repeatedly stated his belief that the Iraq War was a mistake, the neocons (all of them Never-Trumpers) continue to maintain that the Iraq and Libyan Wars were brilliant ideas. These are the same people who think we must blow up half the Middle East, then rebuild it and police it for decades.

Paul continues:

I voted for Rex Tillerson for secretary of state because I believe him to have a balanced approach to foreign policy. My hope is that he will put forward a realist approach. I don’t see Abrams as part of any type of foreign policy realism.

And he concludes:

In a country of 300 million people, surely there are reasonable foreign policy experts who have not been convicted of deceiving Congress and actually share the president’s foreign policy views. I hope Secretary Rex Tillerson will continue the search for expert assistance from experienced, non-convicted diplomats who understand the mistakes of the past and the challenges ahead.

During an appearance on the Tucker Carlson Show on FoxNews last night (clip starts at 5:23), the Republican was asked about his concerns.

“Someone who was a Never-Trumper should never be in a Trump State Department,” Sen. Paul said, noting that “Elliott Abrams was one of the key architects of the Iraq war. We don’t need people with a failed policy back in.”

Host Carlson admitted to being “baffled by it.”

Elliott Abrams was one of the leading supporters of the Iraq War. He signed the original statement of principles for the Project for a New American Century, the organization founded by leading #NeverTrumpers William Kristol and Robert Kagan that was instrumental in making the case for regime change in Iraq. Abrams has since signed a number of other letters organized by PNAC and its successor organization, the Foreign Policy Initiative, concerning war with Iraq, Yugoslavia, Libya and Syria.

Why would Donald Trump want Abrams in the State Department? And why would Rex Tillerson want someone like Abrams as his deputy?

Like Carlson said: It’s baffling.

It is gratifying to see Betsy DeVos confirmed as the next U.S. Secretary of Education. This is not because the federal government should attempt to push school choice—it should not, except in the District of Columbia and for families connected to the military—but because the opposition to now-Secretary DeVos was so unfair to her, and to the research on educational freedom. The reality is that research indicates charter schooling works in Michigan, DeVos’s home state, and specifically in Detroit. It shows that families of students with disabilities, rather than somehow being victimized by school choice, are empowered and immensely satisfied with it. And logic and evidence show that private school choice, rather than imposing ideas on people, frees them to get what they want for their children without forcing it on others.

It is also gratifying to see DeVos approved because she stated repeatedly in her confirmation hearing that education decisions should be left to state and local governments. Constitutionally, that has things absolutely right: the Constitution gives Washington no authority to govern or “oversee” American education, as Sen. Patty Murray (D-WA) put it, which means such rights remain with the states, or with the people. And 50-plus years of increasingly intrusive federal meddling in education, with ultimately no visible academic improvement to show for it, brilliantly illustrates the wisdom of that decision.

Now let us hope that the Trump administration sticks to the constitutionally-constrained federal role—even on school choice—that Secretary DeVos has repeatedly endorsed. 

President Trump’s executive order is facing numerous court challenges, including a temporary restraining order.  My colleague David Bier has made a convincing statutory argument that Trump’s temporarily ban on issuing visas to the nationals of Iran, Iraq, Syria, Saudi Arabia, Sudan, Libya, and Yemen is unlawful.  The genesis of Trump’s executive order was his campaign promise of a Muslim ban which, although unpopular, is built on a sturdier legal foundation than a 21st-century national origins quota.  If the court challenges fail and Trump’s ban is legal then there is a high probability that the bans will be extended and expanded to additional countries.  Indeed, section 2, subsections e and f of the executive leaves open the possibility of extending the length of such bans and extending them to additional countries. 

The Trump administration will have to consider several points in order to place additional countries on the banned list.  The first is political.  Trump promised he was going to block countries that could send terrorists here after he called for a Muslim ban (that he later retracted).  He also seems committed to fulfilling his campaign promises through executive orders.  The other political consideration is avoiding the fierce criticism and mass protests that accompanied his first executive order.  Must of this opposition was based on the erroneous assumption that this executive order was a Muslim ban, although some opponents could be forgiven for thinking that.  To defuse the claim that his future actions will be a Muslim ban, Trump could include some non-Muslim countries on the banned list.  There are many non-Muslim countries in armed conflicts to choose from but I would place my bets on the swiftly disintegrating Venezuela. 

The second consideration is the risk of terrorism from foreign nationals.  As I’ve written elsewhere, the risk of foreign-born terrorism on U.S. soil is small and even smaller for foreigners from certain countries.  The Trump administration could target some countries that send few immigrants and tourists to the U.S. but have historically sent many deadly terrorists.  The most likely candidates there are Egypt, Lebanon, Saudi Arabia, and the United Arab Emirates – countries where the 9/11 hijackers came from.  Foreign nationals from those countries received a total of 17,835 green cards in 2015, about a third as many as the foreign nationals banned in Trump’s original executive order.  Afghanistan, Kuwait, and Pakistan are also possible – the latter mainly because one of the Saudi terrorists was actually born in Pakistan although she lived almost her entire life in Saudi Arabia.  Afghanistan hasn’t sent any deadly terrorists but it is a scary place. 

Altogether, foreign nationals from these additional seven Muslim countries and Venezuela were granted 54,260 green cards in 2015 – slightly more than nationals from the first list of seven nations banned in Trump’s original executive order.  Those nations all sent 1,344,337 non-immigrants to the United States, mostly tourists, in 2015.  That number is almost 16 times as great as the number who came from the banned countries on Trump’s original executive order.  The economic impact of a ban on these eight countries will be bigger than the original executive order.

Trump’s third consideration is foreign affairs.  The United States is allied with Iraq and has alliances with many of the other countries that could be subject to future visa bans.  Surely this must negatively affect America’s alliances just as the targeting of Japanese in the Immigration Act of 1924 caused a serious diplomatic row with that Empire.  The other foreign policy angle is how America’s adversaries view a ban.  After all, the U.S. immigration system was a source of anti-American propaganda for the Soviet Union and their Communist allies until the 1965 Act – passed partly in response to that international pressure during the Cold War.  Many commentators have already commented on how ISIS propaganda benefits tremendously from this ban.  Regardless, any extension or expansion of the migration ban will affect America’s foreign affairs, regardless of the wisdom of our existing alliances and policies, to such an extent that Trump must consider the effects.

A panel of judges in the 9th Circuit this evening will hear arguments on Trump’s migration ban.  The legal issues surrounding Trump migration ban will not disappear anytime soon but if the ban is legal then this administration will have to consider the factors I outline above when it seeks to extend and expand the ban.  

Today marks one year since the death of former Cato Center for Educational Freedom director, and later senior fellow, Andrew Coulson. Many friends and colleagues had wonderful things to say about Andrew upon his passing, and we invite you to read all the testimonials that we were able to assemble.

Today, however, is not only a day for looking to the past, but to the future. Because Andrew’s ideas are about to enter their biggest stage yet. The project to which Andrew devoted most of his final years, and that encompasses the heart of his thought on education, has been accepted by PBS. School Inc., Andrew’s three-part documentary series on how free markets bring transformative innovation to countless parts of our lives, and how to achieve such dynamism to the world of education, will air on WNET in New York in June, and may begin airing on PBS stations around the country as early as April. We’ll keep you posted on all stations and times as soon as they are available.

As a supplement to the documentary—and for anyone who wants to explore the ongoing debates about Andrew’s ideas on education—Cato will soon be publishing Educational Freedom: Remembering Andrew Coulson, Debating His Ideas, a free ebook that will be available on the Cato website, featuring essays by many education thinkers who knew Andrew and his ideas well.

As we said last year, “Andrew Coulson is no longer with us. Thankfully, his ideas remain, and they will always illuminate the pathway forward.” Indeed, they will.

Over at KiwiReport, a writer named Serena Carsley-Mann asks a good question: “Why do trains in America function so different from trains in Europe?” Unfortunately, she mistakenly thinks the problem is that “trains in America function so badly.”

In fact, America has the most efficient rail system in the world. It is European trains that function badly. I’ve discussed this before in my blog, but since writers like Carsley-Mann continue to get it wrong, it is worth repeating.

According to a Pew study, freight shipped by truck uses about ten times as much energy, and emits far more greenhouse gases, per ton-mile than freight shipped by rail (see page 2). Because rail cars weigh more, per passenger, than automobiles, rail’s comparative advantages for passengers are much smaller, and unlike trucks it will be very easy for cars to close the gap: a Prius with a average of 1.67 occupants, for example, is more energy efficient than almost any Amtrak train. Thus, to save energy, it is better to dedicate rail lines to freight rather than to passengers.

This is what the United States has done, but it is exactly the opposite of what Europe has done. According to a report from the European Union, 46 percent of EU-27 freight goes by highway while only 10 percent goes by rail, while in the U.S. 43 percent goes by rail and only 30 percent by road. Thus, we’re using our rail system far more effectively than Europe. This is not just from an energy view but also from a consumer-cost view, as rails cost less than trucks for freight but more than cars for passengers.

Carsley-Mann actually sees freight trains as an obstacle to effective use of the railroads because the freight trains slow and sometimes delay the passenger trains. But in reality, it is the nearly useless passenger trains that are the obstacle to an efficient freight system. Europe manages to carry 5 percent of passenger travel on intercity rail lines, at the cost of pushing a huge share of freight shipments onto highways. By yielding most of that 5 percent of passenger travel to highways and airlines, American manages to free up the railroads for a huge amount of freight.

To avoid the freight conflict, some European countries are building rail lines exclusively for passengers. For the most part, the cost is very high and the benefits low. To some degree, subsidies to those rail lines attract people from lower-cost forms of transportation. But overall, rail is losing market share to cars and, especially, low-cost airlines, so Europe is fighting a losing battle. As economist Charles Lave wrote in The Atlantic many years ago, the “law of large proportions” dictates that “the biggest components matter most,” so making the cars that move 85 percent of people a little more energy efficient is more effective than getting a tiny share of those people out of their cars and onto trains that are a little more energy efficient.

Carsley-Mann never does figure out why American trains are so different from European ones. The answer is simple: American railroads are private and based on the profit motive they operate as efficiently as possible. European railroads are public and based on the political motive they operate as visibly as possible. Passenger trains are more visible to the public than freight trains (which are almost invisible to people like Carsley-Mann, who see them only as obstacles), so European politicians give their constituents subsidized trains rather than an efficient rail system.

I love passenger trains, but I prefer an efficient private system to a visible but heavily subsidized public system. Now if only we could privatize our airports and highways.

On his first official trip as secretary of defense, Jim Mattis sent a signal to U.S. allies that American foreign policy in the region will feature more continuity than change. In South Korea, Mattis reaffirmed that the United States would react to a nuclear attack by North Korea with an “effective and overwhelming” response, and stated, along with the South’s defense minister, America’s commitment to proceed with the deployment of the THAAD missile defense system. Mattis also provided clarification on the administration’s position in the South China Sea. In a break with past rhetoric by other administration officials, Mattis said “At this time we do not see any need for dramatic military moves [in the South China Sea],” and emphasized the importance of diplomacy.

Mature foreign policy statements have been a rare commodity since Trump’s election, and Mattis’s reassurance tour brought a deep sigh of relief from friends and adversaries alike. Whether or not Trump will follow through on Mattis’s words is an open question, however.

Initial reporting on the Trump administration’s approach to decision-making reveals two things. First, while his outlook cannot be labeled “restraint,” Mattis has a relatively restrained or moderate outlook on foreign policy. Second, the ability of such moderate voices to influence Trump is challenged by a group of policy advisors centered on Chief Strategist (and National Security Council member) Steve Bannon that has a much more aggressive outlook.

Both Mattis and Bannon have had some success in shaping policy. Mattis was reportedly able to tone down the language that Michael Flynn, the national security advisor, used when putting Iran “on notice” after Iran conducted a ballistic missile test. Bannon’s major policy success was the executive order barring immigrants from seven Muslim-majority countries, which he oversaw the drafting of along with policy advisor Stephen Miller. Mattis was allegedly not consulted while the immigration order was being drafted. He also reportedly did not see the final version of the order until hours before its release. Additionally, the executive order that gave Bannon a seat on the National Security Council was reportedly signed by Trump without the president being briefed on the details of the order. The author of the order is unknown.

It is difficult to predict who will have the president’s ear on issues of foreign policy and national security, but the first few weeks of the Trump administration indicate that Bannon wields significant influence given his central role in the immigration executive order. This influence caused tension with Mattis, and the homeland security secretary John F. Kelly who sparred with Bannon over whether or not Kelly could issue a waiver for green-card holders affected by the immigration ban.

Of course, all administrations have some degree of internal division, and these recent disagreements come as new advisors are getting used to their roles in a new administration.

Nevertheless, there appear to be at least two cliques taking shape among Trump’s foreign policy and national security advisors: the relatively moderate and restrained professionals like Mattis, and the aggressive firebrands like Bannon. It remains unclear which advisors belong to which clique, but the struggle between these two groups will shape future policy decisions in the Trump administration for the foreseeable future. Since both have some small “wins” under their belt, it is also unclear which clique will end up winning the important policy decisions. Watching how these two groups develop and lobby for their policies will be essential to understanding the Trump administration’s approach to foreign policy and national security. 

President Trump’s testy telephone conversation with Australian Prime Minister Malcolm Turnball quickly produced a reaction from one ubiquitous U.S. player on foreign policy issues, Arizona Senator John McCain. He contacted Australia’s ambassador in Washington to assure him of Washington’s undying devotion to the U.S. alliance with Australia and to that country’s security and well-being. The implicit message was that Canberra should not take Trump or his actions seriously. In so doing, McCain basically anointed himself as America’s shadow president, with the right and obligation to bypass the elected president and conduct relations with foreign governments and other parties.

His actions were entirely inappropriate. Granted, Trump’s conduct toward Turnball deserves no praise. During the telephone call, a dispute arose over refugee policy, and an angry Trump reportedly berated the Australian leader and abruptly cut the scheduled one-hour session short after 25 minutes. Such behavior was that of a petulant adolescent rather than the expected behavior of a president of the United States.

Nevertheless, the Constitution empowers the president and his appointees to conduct America’s foreign policy. Even senators are not authorized to undercut their authority by engaging in direct, free-lance diplomacy with foreign leaders. Yet that is what McCain did.

Unfortunately, this was hardly the first time that he has engaged in such disruptive behavior. His record is that of an annoying, and sometimes dangerous, loose cannon. For example, during Ukraine’s political crisis in late 2013 and early 2014, McCain showed up in Kiev to urge on anti-government demonstrators in their bid to unseat President Victor Yanukovych’s elected government before the expiration of its term in 2016. America was on their side, he assured them.

McCain engaged in similar meddling in Syria’s civil war. In May 2013, he met with so-called moderate rebels who were trying to overthrow President Bashar al-Assad, and as in Kiev, conveyed America’s alleged solidarity with their cause. This intrusive action occurred at a time when the Obama administration remained wary of the United States becoming entangled in the bloody, complex conflict, and was at least trying to limit the extent of U.S. involvement. Not only were McCain’s actions complicating official U.S. policy, but they should have been embarrassing to the Arizona senator. The reality is that there were (and are) very few truly moderate Syrian rebels. Most of them are Islamists masquerading as moderates to gain support from gullible Westerners. Even McCain seemed unclear about the specific identities or the nature of his interlocutors in Syria.

Especially in light of his dreadful track record, McCain should tend to his senatorial duties and stop trying to be a shadow president or secretary of state. In fact, given his dreadful, ultra-hawkish views and his advocacy of, and often feverish lobbying efforts for, a lengthy series of ill-advised foreign policy ventures (ranging from the calamitous Iraq War to a new cold war with Russia), it might be better for all concerned if he just concentrated on domestic issues.

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