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Republicans are letting themselves get cornered by slanted tables appearing to show the rich gaining the most from tax reform. The official distribution tables are not presenting GOP tax changes in a fair manner, as I discuss here.

But Fox News also? On Sunday, Fox displayed this image, and host Eric Shawn asked Rep. Jim Renacci, “…if you make more than a million, if you’re a richie, you save $21,000 … Do you think that’s fair and appropriate?” Renacci did not do a good job of pushing back.

Presenting dollar cuts with no context is meaningless. The proper context is how much people currently pay in the taxes being cut. (The Fox figures are way off, by the way).

The table below shows Tax Policy Center estimates of average cuts for the Senate bill in 2019, and my estimates of the average amount paid in individual income, corporate income, and estate taxes under current law. The “richies” might get the largest dollar cuts, but they will pay an enormous pile of taxes in 2019 with or without the GOP reforms.

The $30-$40K group won’t pay any federal income taxes under current law, on average. So the “cut” that group receives would stem from more people not paying anything and from an increase in refundable credits, which are spending subsidies.

The middle groups would receive far larger percentage tax cuts than the top group.

Figures in the table are based on TPC data in T17-0268 detail table and T17-0043 and my estimates.

Republicans cannot tell Fox News what to report, of course, but they can require that its own Joint Committee on Taxation show more detail in its tables and to present tax changes in a fair context, which it is not doing. In turn, that may encourage news outlets to present the GOP plan in a more accurate and neutral light.

“A man’s home is his castle”—this is not just an aphorism, but a longstanding legal principle. From Biblical times through to the English common law, the home was recognized as a place of refuge in which the owner is protected against uninvited private parties and unjustified government intrusion. That legal shield against arbitrary invasions of the home was embodied in the Fourth Amendment, which resulted in large measure from Americans’ reaction to the British authorities’ use of general warrants to search colonists’ homes without individualized suspicion. As a result of this history, “when it comes to the Fourth Amendment, the home is first among equals.” Florida v. Jardines, 569 U.S. 1, 6 (2013). 

In Collins v. Virginia, the issue before the Supreme Court is whether a police officer, uninvited and without a warrant, may enter private property, approach a home, and search a vehicle parked just a few feet from the house. Cato has filed a brief arguing that permitting such a practice would be squarely inconsistent with the Fourth Amendment’s special solicitude for the privacy of the home. At common law, and under the Fourth Amendment, the protection accorded to the home extends to its surrounding grounds and out-buildings—the so-called “curtilage.” Because this area is closely tied to the home, both physically and psychologically, the curtilage is regarded as part of the home itself for Fourth Amendment purposes. This protection is the foremost example of the Fourth Amendment’s general defense against unreasonable government intrusion into private property. Indeed, the text of the Amendment protects “[t]he right of the people to be secure,” not just in their “persons,” but also in their “houses, papers, and effects.”

The general justification for allowing warrantless searches of vehicles is the reduced expectation of privacy in vehicles as they travel on public roads. But there is no such reduced expectation when a vehicle is parked at home. To the contrary, expectations of privacy are at their zenith at the home and its surroundings. And to the extent that the warrantless search of automobiles is justified by their mobility, a vehicle parked at home is immobile; if it leaves the home and curtilage it would become subject to search. Moreover, the existing doctrine on “exigent circumstances” assures that the warrant requirement will not undermine critical law enforcement needs. For example, the need to prevent physical harm or the imminent destruction of evidence would allow officers to intrude on the curtilage without a warrant.  But in the absence of those circumstances, the Fourth Amendment’s warrant requirement protects Americans’ most private refuge against the abusive use of government power.

As the 5th round of talks on the renegotiation of the North American Free Trade Agreement (NAFTA) wrap up, the United States, Canada and Mexico continue to work out the technical details of their various proposals. Being the week of Thanksgiving, and because I can’t stop thinking about all the great food I’m going to eat on Thursday, I figured it’s a perfect time to reflect on the benefits of NAFTA for Americans who buy a variety of agricultural products.

When you look at products imported for consumption, that is, products that receive no additional processing, imports from Canada and Mexico have grown quite a bit since NAFTA was finalized in 1994. Imports are important because they allow consumers greater choice (like fruits and vegetables in winter!), as well as lowering prices so that everyone gets to enjoy some Thanksgiving cheer.

The top consumer oriented imports from Mexico in 2016 were fresh vegetables ($5.6 billion), other fresh fruit ($4.9 billion), and wine and beer ($3.1 billion). From Canada, the top imports were snack foods ($4 billion), other consumer oriented products ($2.6 billion), red meats ($2.2 billion), and processed fruits and vegetables ($1.4 billion). In addition, in 2016, the U.S. imported $25.8 million in live turkeys in 2016, with 99.9% coming from Canada (the rest are from France).  

The United States exports a lot to Canada and Mexico as well, which rank 2nd and 3rd for U.S. agricultural exports (China is the top export partner). U.S. agricultural exports to its NAFTA partners grew from $8.7 billion in 1992 to $38.1 billion in 2016, while imports grew from $6.5 billion to $44.5 billion. It is no wonder, therefore, that U.S. farmers and others in the agricultural industry greatly support NAFTA, and don’t want to see it scrapped.

A 2015 report by the USDA on the 20th anniversary of NAFTA, it concluded:

The 20th anniversary of NAFTA provides testimony to the lasting value of agricultural trade liberalization to the North American economy. By removing thousands of tariffs, quotas, import licensing requirements, and other policy measures that formerly distorted agricultural trade and FDI among the United States, Canada, and Mexico, NAFTA facilitated a large increase in cross-border economic activity in the agricultural and processed food sectors.

So this Thanksgiving, I’m thankful for NAFTA, and I hope the United States, Canada and Mexico do what they can to prevent any rollbacks to the liberalization we have achieved, and work to modernize it so that we continue to benefit from this great deal.

On Friday, the Treasury Department released a report on Financial Stability Oversight Council (FSOC) designations. This report could have addressed the problem underlying FSOC’s designation authority: the fact that it makes explicit which financial institutions are “too big to fail,” paving the way for more bailouts of the kind we saw in 2008. Sadly, the report flew wide of the mark, focusing on the minutiae of the designation process and all but ignoring the glaring bailout problem.

A little background. FSOC is an entity created in 2010 by Dodd-Frank, the sweeping financial reform legislation passed in the wake of the 2008 crisis. It is comprised of the heads of various financial regulatory agencies, and is chaired by the Secretary of the Treasury. One of its purposes is to facilitate communication among regulators, helping to give them a complete picture of the financial sector beyond their own territories.

FSOC’s other purpose — and arguably its primary one — is to identify systemic risk and designate certain entities as “systemically important financial institutions” (SIFIs). These SIFIs are then subject to heightened oversight by the Federal Reserve. The idea is that increased oversight will reduce the chances of these companies running into trouble, and thereby obviate the need for bailouts.

But the government has not shown itself to be adept at identifying systemic risk. Not in 2008. Not in any of the last eight financial crises, in fact. Even if the coordination among regulators facilitated by FSOC improves the government’s ability to see trouble brewing, it will never have perfect foresight.

When one of these SIFIs stumbles — as one eventually will given a long enough timeline — how will the government avoid a bailout? In the past, large firms understood with a wink and a nod that Uncle Sam was backstopping their bets. But there was at least some ambiguity. And in the case of Lehman Brothers, the government did not ultimately provide a safe landing. Could the government have let Lehman fail if it had already branded it “systemically important”? I tend to think not.

Back to the new report. The report does a good job of identifying the problems that FSOC and SIFI designation present:

Designation by the Council…should not imply that the government will rescue the designated firm in the event of failure. A market expectation of such a rescue could cause inefficient investment decisions and increased risk-taking. Nor should government discipline be substituted for the market discipline of investors, counterparties, and clients as a result of the designation process.

I couldn’t have said it better myself. Later, the report states that “a company subject to a Council designation should not receive a financial advantage from any perception that the government may rescue the company in the event of its failure. Such a perception could give the company an unfair competitive advantage in funding markets.” Again, an excellent point.

Unfortunately, while the report accurately identifies and describes some of the chief problems with the SIFI designation, it completely fails to identify any corresponding solutions.

As to market advantage, the report does note off-hand that the market may adjust once the regulatory effects become more clear. But this explanation makes little sense. Yes, the market will incorporate the advantage by pricing in the government backstop a company is likely to enjoy as a SIFI.  That doesn’t mean the effect goes away. Instead, the company’s position in the market will reflect the costs and benefits of being designated as systemically important.

As for the SIFI designation potentially forcing the government’s hand if a bailout is needed, the report simply outlines the problem and then never mentions it again. The report does recommend using an activities-based approach to regulation, although it is not clear whether this is intended to address the specific problem of creating moral hazard by designating certain firms as SIFIs. In the past, while FSOC has been troublingly opaque about its designation process, it does seem that firm size has been the most salient concern. The report notes that focusing on activities may reduce the need to designate firms, principally because firms will likely avoid activities that might trigger designation. And yet, the report provides little detail about how FSOC will evaluate activities to determine their systemic risk or even what “risk” in this context means. Given the government’s poor track record in predicting crises, it would be helpful if the report had explained how FSOC’s analysis will be different going forward. Finally, the report suggests using designations sparingly.  But as long as any firm is designated as a SIFI, the specter of government bailouts remains.

It is worth noting that the report is written as a memorandum to President Trump, and comes in response to a request he sent to the Treasury Department earlier in the year. In that request, the president asks Treasury principally about the process for designating SIFIs — a process that has left much to be desired.

But the request also asks Treasury to assess whether FSOC and its SIFI designations align with the objectives laid out in the president’s February executive order establishing principles for financial regulation. Among those objectives is to “prevent taxpayer funded bailouts.” Addressing whether SIFI designation itself might lead to more bailouts was squarely within the four corners of the president’s request. And Treasury completely ignored it.

The report makes some worthwhile suggestions about the designation process. For example, it recommends that FSOC notify companies earlier in the process, so that they can take measures to address FSOC’s concerns and avoid SIFI designation entirely. Of course, to assume that addressing these issues is a good thing is to assume that FSOC has correctly identified problems in the first place. And that may be a big assumption.

The report also recommends that FSOC “should only designate a company if the expected benefits to financial stability from Federal Reserve supervision and enhanced prudential standards outweigh the costs that designation would impose.” This is a good recommendation but I’m fairly disheartened that it’s one that must be made. Should regulators need to be told that they should only act to make things better, not worse?

Then there’s the report’s recommendation that, before making a SIFI designation, FSOC should consider whether a company is actually likely to face financial trouble: “Material financial distress at a nonbank financial company does not pose a threat to U.S. financial stability if the company will not experience material financial distress.” Indeed: things that do not happen rarely cause distress. Again, I’m disappointed this must be explicitly stated.

It might be less distressing if the report had simply failed to mention the risk that SIFI designation could give rise to more bailouts. That would leave open the possibility that alerting Treasury staff to this danger would spur some action. Instead, the report’s authors, aware of the risk and explicitly stating the need to address it, offer no explanation of how that might be accomplished.

The bottom line is that there is probably no way for the government to designate firms as “systemically important” without simultaneously creating the guarantee of bailouts later on, should the need arise. As has been argued in several other places, the SIFI designation process not only fails in Dodd-Frank’s stated mission of ending “too big to fail,” but explicitly enshrines it in law.

The FSOC itself need not be disbanded, but if we’re serious about eliminating taxpayer-funded bailouts — and I hope we are — its power to name SIFIs should end.

[Cross-posted from Alt-M.org]

The United States is helping one of the most vicious authoritarian regimes in the world bomb and blockade one of the poorest and most defenseless countries in the world. Painful as it may be for Americans to hear, war crimes are being committed with America’s support.

Saudi Arabia launched its war on Yemen in 2015 on flimsy national security grounds and almost immediately garnered criticism from the United Nations and human rights groups for indiscriminate bombings, and in some cases deliberate targeting, of civilian areas. Saudi bombs have landed on residential homes, marketplaces, refugee camps, schools, hospitals, and at least one funeral. In spite of these allegations and clear evidence of extreme human suffering, the United States has supported the Saudi campaign from the beginning by providing refueling assistance, logistical support, intelligence cooperation, and diplomatic cover (not to mention massive arms sales).

To date, conservative estimates put the number of Yemenis killed by Saudi bombs at more than 13,500 (including more than 5,000 confirmed civilians). What has made the situation an order of magnitude worse is Saudi Arabia’s de facto blockade of Yemen’s air, sea, and land ports, preventing the delivery of much needed humanitarian aid. The main sewage plant in Yemen’s capital Sana’a ran out of fuel, couldn’t import more, and hasn’t run for months at a time, helping intensify the spread of disease. More than 900,000 Yemenis are suffering from cholera, a disease that could be treated if the Saudis would permit entry of aid and medical supplies. But, according to the BBC, the Saudis have turned away up to 29 vessels with 300,000 tons of food and 192,000 tons of fuel, plus a UN ship transporting 1,300 tons of health, water, sanitation, hygiene, and nutrition supplies.

About 17 million Yemenis are in urgent need of food; 7 million of those are facing starvation. Roughly 400,000 children under the age of five are suffering from acute malnutrition and, if Yemen doesn’t get relief soon, up to 150,000 of those children will likely die within a few months.

Journalists from CBS News, looking to shine a light on what the United Nations has called a “man-made catastrophe,” were recently denied entry into Yemen by Saudi authorities. Riyadh doesn’t want the world to know what it’s doing. CBS instead found Yemenis willing to film the horror, which aired on 60 Minutes this past weekend. The stomach-churning footage is not easy to watch. David Beasley, who runs the UN’s World Food Program, told 60 Minutes that, “the Saudi-led coalition” – a phrase he apparently used advisedly to include the United States – “are using food as a weapon of war. And it’s disgraceful.”

Let’s be clear: there is no credible strategic justification for US complicity in this abominable cruelty. The Saudis claim the war is necessary to crush the Houthi militants in Yemen, a group that has received backing from Iran. Incidentally, Iranian support for the Houthis was negligible until well into the Saudi air campaign, with Iran boosting support largely in response to Riyadh’s offensive. In any case, the war itself has done more to bolster the position of Al-Qaeda’s affiliate in Yemen than to effectively push back against Iranian influence.

But even if that weren’t the case, nothing can justify this kind of brutal collective punishment and excruciating human suffering inflicted on millions of innocent people. Putting hundreds of thousands of children at risk of starvation is an intolerable crime, and only one among many currently being perpetrated. Shamefully, the issue doesn’t elicit nearly the level of outrage as President Trump’s Twitter feuds and rhetorical attacks on professional athletes. The public indifference is rather shocking.

A few members of Congress have spoken out publicly against the savagery in Yemen. Senator Chris Murphy (D-CT) has repeatedly made the case for restricting U.S. military support for Saudi operations in Yemen, has called on Riyadh to lift the blockade, and has accused the U.S. of complicity in war crimes. Senator Rand Paul (R-KY), too, has forcefully condemned U.S. involvement in Saudi crimes. Rep. Ro Khanna (D-CA), Rep. Walter Jones (R-NC), and Rep. Mark Pocan (D-WI) have joined the chorus. And last week the House passed a non-binding resolution declaring U.S. involvement unauthorized. Unfortunately, the executive branch is insulated from these somewhat meager efforts to check and balance.

As Cato’s foreign policy team has said from the beginning, the United States should immediately halt all support to Saudi Arabia and use its influence to allow Yemen the relief it needs. The manner in which the war is being conducted will cast a long shadow over America’s reputation, and undermines Americans’ claim to uphold human rights. And empowering some of the most violent and extreme elements within Yemen is likely to increase threats to U.S. national security down the road. 

You can learn about how the federal government works from Washington Post obituaries. Many people who have had careers in Washington seem to have focused on lining their pockets rather than serving the public interest. Everyone wants to succeed, of course, but for most Americans that means private-sector jobs that add value to society. Washington, by contrast, provides unique opportunities to make money by harming society and betraying the public trust.

Sunday’s Post had a detailed obit for Bobby Baker, who was a close friend and “protégé” of Lyndon Johnson in the Senate, but who ended up in prison for tax evasion, theft, and fraud.

Here are some excerpts:

Mr. Baker was just 20 at the time and a staffer for the Senate leadership, keeping track of legislation and when it would be coming up for a vote. His vast knowledge of the operations of the Senate and his facility in the art of accommodation—moving pet legislative projects ahead for some senators or helping fulfill the proclivities of others for drink, sex or cash—would make him an invaluable asset to [Lyndon] Johnson.

Using his guile, political skill and finesse in the art of the deal, Mr. Baker amassed a fortune of more than $2 million in his moonlighting activities with holdings in cattle, insurance, vending machines, real estate and gambling operations in the Caribbean. He lived in the Spring Valley section of Washington, close to the far wealthier Johnson. He achieved all of this on an official salary of $19,600 a year.

Years later, he justified his highflying ways in his memoir, which was aptly titled: “Wheeling and Dealing: Confessions of a Capitol Hill Operator.”

“Like my bosses and sponsors in the Senate, I was ambitious and eager to feather my personal nest,” Mr. Baker wrote in the book, a collaboration with author Larry L. King.

“As they presumed their high stations to entitle them to accept gratuities or hospitalities from patrons who had special axes to grind, so did I,” Mr. Baker added. “As they took advantage of privileged information to get in on the ground floor of attractive investments, so did I. As they used their powerful positions to gain loans or credit that otherwise might not have been granted, so did I.”

Mr. Baker’s world of privilege and political connections came crashing down in the fall of 1963….It was discovered that Mr. Baker owned a condominium where high-profile Washington figures were entertained by women who were not their wives.

It was also disclosed that Mr. Baker was the co-founder of the Quorum Club, located in the Carroll Arms, a small hotel on Capitol Hill. It was a place where lawmakers, lobbyists and other interested parties would drink, play cards and dally with young women.

His legal downfall came in 1967, when he was indicted on charges of tax evasion, theft and fraud. Mr. Baker had allegedly been asked by savings and loan industry officials in California to deliver a six-figure sum to Sen. Robert Kerr (D-Okla.), who died in 1963. According to Mr. Baker’s memoir, that money was to have been an inducement to derail a bill that would have been costly to the savings and loan industry. Mr. Baker’s transgression, according to the grand jury, was that he kept nearly $50,000 for himself.

Is Washington more or less corrupt than during the Bobby Baker era? On the one hand, the government is much larger today than during the 1960s, handing out more subsidies to more people and groups. On the other hand, there is more transparency today due to the rise of the Internet and the broadening of media competition. So there are more opportunities for corruption today, but it might be more likely that the worst abusers get caught.

Corruption is one reason why most federal programs do not, on net, serve the public interest, and why we would be better off without them. For the many other reasons, see DownsizingGovernment.org.

By the way, Wiki has a useful list of historical political scandals—everything from the Whiskey Ring and Teapot Dome to Dennis Hastert and Chaka Fattah.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Figure 1

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

 

Source: Author’s Calculations from GAO.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Different in Scale

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

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

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

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

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

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

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

Different in Methodology

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

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

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

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

Different in Application

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

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

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

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

 

Table 1: Presidential Proclamations to Exclude Certain Classes of Aliens

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

2017

7 Countries NO NO YES YES 184 million

1

EO 13726

2016

Libya YES YES NO NO 10

2

EO 13722

2016

North Korea YES YES NO NO 61

3

EO 13712

2015

Burundi YES YES NO NO 29

4

EO 13694

2015

Unspecified YES YES NO NO 39

5

EO 13692

2015

Venezuela YES YES NO NO 7

6

EO 13687

2015

North Korea YES YES NO NO 97

7

EO 13685

2014

Ukraine YES YES NO NO 19

8

EO 13667

2014

C. African R. YES YES NO NO 89

9

EO 13664

2014

S. Sudan YES YES NO NO 40

10

EO 13662

2014

Russia & Crimea YES YES NO NO 278

11

EO 13661

2014

Russia & Crimea YES YES NO NO 60

12

EO 13660

2014

Ukraine YES YES NO NO 218

13

EO 13645

2013

Iran YES YES NO NO 32

14

EO 13628

2012

Iran YES YES NO NO 117

15

EO 13619

2012

Burma YES YES NO NO 482

16

EO 13608

2012

Iran & Syria YES YES NO NO 9

17

EO 13606

2012

Iran & Syria YES YES NO NO 21

18

P 8697

2011

Unspecified YES YES NO NO ?

19

P 8693

2011

Unspecified & Various YES YES NO NO 22,383

20

P 8342

2009

~17 Nations YES YES NO NO ?

21

P 8158

2007

Lebanon & Iran YES YES NO NO 15

22

P 8015

2006

Belarus YES YES NO NO 195

23

P 7750

2004

Unspecified YES YES NO NO ?

24

P 7524

2002

Zimbabwe YES YES NO NO 87

25

P 7452

2001

Balkans YES YES NO NO 374

26

P 7359

2000

Sierre Leone YES YES NO NO ?

27

P 7249

1999

Serbia YES YES NO NO 2,184

28

P 7062

1998

Sierre Leone YES YES NO NO ?

29

P 7060

1997

Angola YES YES NO NO ?

30

P 6958

1996

Sudan YES YES NO NO 283

31

P 6925

1996

Burma YES YES NO NO 482

32

P 6749

1994

Bosnia YES YES NO NO 334

33

P 6730

1994

Liberia YES YES NO NO 556

34

P 6685

1994

Haiti YES YES NO NO 1194

35

P 6636

1993

Nigeria YES YES NO NO ?

36

P 6574

1993

Zaire YES YES NO NO ?

37

P 6569

1993

Haiti YES YES NO NO ?

38

EO 12807

1992

High Seas YES NO NO NO ?

39

P 5887

1988

Nicaragua YES YES NO NO ?

40

P 5829

1988

Panama YES YES NO NO ?

41

P 5517

1986

Cuba NO NO YES NO 10 million

42

P 5377

1985

Cuba YES YES NO NO 665

43

P 4865

1981

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

98%

93%

2%

0%

 

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

 

Table 2: Presidential Proclamations to Exclude Certain Classes of Aliens

  Date

Target and Purpose

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

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

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

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

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

 

Figure 1

Apprehensions Per Border Patrol Agent

Source: Customs and Border Protection.

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

 

Figure 2

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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