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It has been 17 years since the federal government took over security screening at the nation’s airports, and they still haven’t figured out how to schedule more screeners during busy times.

The photo is yesterday afternoon in Denver. It took 26 minutes to get through the line. Leaving from Dulles a couple days earlier it took a ridiculous 46 minutes.

The problem is that monopoly bureaus like the Transportation Security Administration do not value Americans’ time, and they have little incentive to operate efficiently. Why did the Denver airport have just four security lines open yesterday when this facility gets 58 million passengers a year?  

The photo makes clear that the mob scene generated by the bureaucracy creates a major security problem in itself with respect to possible lunatic bombers. Dulles at 46 minutes was even more frustrating and more of a mob scene.

Both airports are vast structures that cost billions of dollars to build. Yet the government does not seem interested buying a few more machines and adding screeners. Government monopolies do not, or cannot, properly trade off costs and benefits.

The ultimate solution to this government-caused congestion problem is to privatize both airport screening and the nation’s airports, as I discuss here and here.

But a good first step would be to devolve responsibility for screening to local governments. The City of Denver, for example, would have a strong incentive to invest in screening lines because the local economy gains huge benefits from the airport. The faraway bureaucrats in Washington apparently couldn’t care less about Denver’s economy or the frustrations of local residents and visitors.

We’ve looked at the K-12 spending trends both nationally and in restive states, broken down per-pupil expenditures into smaller bits, and added North Carolina. I had planned to finish this spending series with this post, but there are a lot of data to examine so I’m going to put off conclusions to the next—and final—post. We now look at total enrollment and inflation-adjusted expenditures, and then at how staffing and inflation-adjusted teacher salaries have moved, both nationally and for our “hot” states. (On all charts, pay close attention to the horizontal axis. Many start with wider increments of time than they end.)

National

Enrollment: We saw a drop between the 1969-70 school year and 89-90, then enrollment lagrely plateaued between 05-06 and 13-14.

Spending: Total public school revenues (standing in for spending because a longer trend is available) massively increased between 69-70 and 07-08—the Great Recession—at which point they started dropping, but as of 14-15 they had essentially returned to pre-recession levels.   

Teacher Salaries: Average salaries for public school teachers have been pretty stagnant since the late-1980s. The period we have been focusing on intensively—99-00 to 14-15—shows salaries peaking in 09-10, then failing to recover to levels at the beginning of that period.

Teacher Staffing: Public schools have been hiring teachers faster than enrollment has risen, starting at 4.5 teachers per hundred students in 1970 and hitting 6.5 in 2008. It dipped to slightly above 6.2 in 2014.

Non-Teaching Staff: Other staff have been rising relative to teachers, with teachers dropping from 51.5 percent of total staff in 2000 to 49.4 percent in 2015.

Arizona

Enrollment: Arizona saw a huge increase in average daily attendance, with numbers doubling between 69-70 and 99-00, while national numbers barely moved. Even between 99-00 and 05-06 Arizona’s enrollment increased about 19 percent while nationally it rose only about 5 percent.

Spending: State-level, inflation-adjusted total spending between 99-00 and 14-15 grew from about $8.4 billion to $9.7 billion, with a peak of $12.1 billion in 06-07.

Teacher Salaries: Teacher salaries have generally been dropping, especially since 89-90.

Teacher Staffing: Between 2000 and 2015 the number of teachers per 100 students fell from a little over 5 to a bit over 4.

Non-Teaching Staff: It’s been growing relative to teachers. In 2000 teachers were 49.3 percent of all staff. In 2015 they were just 46.5 percent.

Colorado

Enrollment: Like Arizona, Colorado saw enrollment increase at rates that exceeded those of the nation, with attendance rising 31 percent between 69-70 and 99-00. Enrollment continued to rise throughout the period.

Spending: Grew from $7.7 billion in 1999-00 to $9.6 billion in 14-15, and peaked in 07-08 at $10.3 billion.

Teacher Salaries: Salaries have fallen since 69-70 and 99-00. Since 99-00 they have dropped 15 percent.

Teacher Staffing: This has hovered pretty steadily around the 5.7 teachers per 100 students mark.

Non-Teaching Staff: We see a relative increase in non-teaching staff. In 2000 teachers comprised 50.7 percent of total staff. In 2015 it was down to 46.3 percent.

Kentucky

Enrollment: The story is very different from the two western states, with big drops in enrollment between 69-70 and 99-00. Enrollment has rebounded since 99-00, but still has not returned to 69-70 numbers.

Spending: Outlays rose appreciably between 99-00 and 14-15, and only took a small dip after peaking at almost $7.8 billion in 09-10.

Teacher Salaries: These grew steadily between 69-70 and 09-10, rising about 24 percent, but have since slipped back a bit.

Teacher Staffing: Since 2000, teachers per 100 students has stayed pretty steady at about 6.1.

Non-Teaching Staff: Again we see a relative increase in non-teachers, though not as big as in the previous two states, and starting from lower levels. Teachers made up only 44.1 percent of total staff in 2000 and 42.9 percent in 2015.

North Carolina

Enrollment: The Tar Heel State saw a slightly faster rate of growth between 69-70 and 99-00 than the nation as a whole, but not like AZ and CO. It has seen pretty steady but not steep increases since then.

Spending: The state saw big fluctuations, rising by about $2.4 billion between 99-00 and 08-09, then declining by roughly the same amount between 08-09 and 13-14.

Teacher Salaries: This has been a bit of a roller coaster, peaking in 99-00, but shedding almost 12 percent of value since.

Teacher Staffing: Pretty steady at about 6.5 teachers per 100 students.

Non-Teaching Staff: North Carolina has seemed to avoid the admin bug, with teachers as the percentage of all staff saying steady at about 52 percent.

Oklahoma

Enrollment: Since 99-00 steady growth, but only for a 9 percent total increase.

Spending: Has been on a gradual upswing, with just a small recession dip from which the state recovered after just three years.

Teacher Salaries: Spiked in 09-10, but returned to just a bit above the norm in 16-17, sitting at $45,245.

Teacher Staffing: Oklahoma has decreased the number of teachers per 100 pupils since 2000, dropping from about 6.6 in 2000 to 6.1 in 2015.

Non-Teaching Staff: While decreasing teaching staff, Oklahoma has seen appreciably increasing non-teaching employees, with teachers constituting 55 percent of total staff in 2000, but only 49.4 percent in 2015.

West Virginia

Enrollment: This state hemorrhaged enrollment between 69-70 and 07-08, falling 28 percent, and it has hovered around 271,000 since 99-00.

Spending: Spending spiked between 99-00 and 09-10, and after dropping significantly is still about $286 million above where it was to start the period.

Teacher Salaries: These peaked in 09-10, but have dipped below their 69-70 mark of $49,141.

Teacher Staffing: Teachers per 100 students dipped slightly since 2000.

Non-Teaching Staff: Administrative and support staff have been rising compared to teachers. Teachers made up 54.1 percent of total staff in 2000, but were down to 51.1 percent in 2015.

Next Time

That’s it for now. I’ll sum up what I think all these data tell us in the upcoming, final post.

During his presidential campaign Donald Trump proposed the “extreme vetting” of immigrants. Civil libertarians criticized the proposal, not least because the Extreme Vetting Initiative mandated by one of President Trump’s first executive orders sought technology that would use machine learning to determine whether visa applicants would be likely to contribute to society and the national interest. Fortunately, Immigration and Customs Enforcement (ICE) – is no longer pursuing this vetting technology.

In January 2017 President Trump issued Executive Order 13769, which stated in part (emphasis mine):

Sec. 4. Implementing Uniform Screening Standards for All Immigration Programs. (a) The Secretary of State, the Secretary of Homeland Security, the Director of National Intelligence, and the Director of the Federal Bureau of Investigation shall implement a program, as part of the adjudication process for immigration benefits, to identify individuals seeking to enter the United States on a fraudulent basis with the intent to cause harm, or who are at risk of causing harm subsequent to their admission. This program will include the development of a uniform screening standard and procedure, such as […] a process to evaluate the applicant’s likelihood of becoming a positively contributing member of society and the applicant’s ability to make contributions to the national interest; and a mechanism to assess whether or not the applicant has the intent to commit criminal or terrorist acts after entering the United States.

The Extreme Vetting Initiative tasked with implementing (among things) this feature of Trump’s executive order, included the following in its statement of objectives:

ICE must develop processes that determine and evaluate an applicant’s probability of becoming a positively contributing member of society as well as their ability to contribute to national interests in order to meet the EOs outlined by the President.

A background document on the initiative outlined requirements, including the exploitation of publicly available information found on blogs, social media, academic websites, and other online sources. The same backgrounder went on to state that the goal was for the initiative to generate 10,000 investigatory leads each year.

Earlier this year dozens of computer scientists, mathematicians, and engineers wrote a letter to then-Acting Secretary of Homeland Security Elaine Duke, outlining the numerous issued associated with the Extreme Vetting Initiative. As I noted in November last year, the letter highlighted that ICE’s proposal would likely be discriminatory as well as unreliable. From the letter:

According to its Statement of Objectives, the Extreme Vetting Initiative seeks to make “determinations via automation” about whether an individual will become a “positively contributing member of society” and will “contribute to the national interests.” As far as we are aware, neither the federal government nor anyone else has defined, much less attempted to quantify, these characteristics. Algorithms designed to predict these undefined qualities could be used to arbitrarily flag groups of immigrants under a veneer of objectivity.

Inevitably, because these characteristics are difficult (if not impossible) to define and measure, any algorithm will depend on “proxies” that are more easily observed and may bear little or no relationship to the characteristics of interest. For example, developers could stipulate that a Facebook post criticizing U.S. foreign policy would identify a visa applicant as a threat to national interests. They could also treat income as a proxy for a person’s contributions to society, despite the fact that financial compensation fails to adequately capture people’s roles in their communities or the economy.

For more information on the Extreme Vetting Initiative, including original ICE documents, visit the Brennan Center for Justice’s resource page.

In a May 14 blog post, Food and Drug Commissioner Scott Gottlieb expressed concern about the effect the nation’s restrictive policy towards the manufacture and prescription of opioids is having on patients with chronic pain conditions. This is one of the first signs that someone in the administration has taken note of the unintended consequences of this misguided policy—a policy that is based upon the false narrative that the overdose crisis is primarily the result of doctors prescribing opioids to patients in pain.

In response to a wide range of public input solicited by the FDA beginning in September 2017, Commissioner Gottlieb stated:

We’ve heard the concerns expressed by these individuals about having continued access to necessary pain medication, the fear of being stigmatized as an addict, challenges in finding health care professionals willing to work with or even prescribe opioids, and sadly, for some patients, increased thoughts of or actual suicide because crushing pain was resulting in a loss of quality of life.

Pointing out that, “In some medical circumstances, opioids are the only drugs that work for some patients,” Dr. Gottlieb announced that a public meeting will be held on July 9 on “Patient-Focused Drug Development for Chronic Pain,” and invited pain patients to offer their perspectives.

Hinting at his dissatisfaction with the 2016 one-size-fits-all opioid prescription guidelines published by the Centers for Disease Control and Prevention that have greatly influenced state and federal opioid policymakers, he signaled that the FDA is considering proposing its own set of guidelines. Unlike the CDC guidelines, which are not evidence-based and were never intended to be prescriptive, Gottlieb stated:

In short, having sound, evidence-based information to inform prescribing can help ensure that patients aren’t over prescribed these drugs; while at the same time also making sure that patients with appropriate needs for short and, in some cases, longer-term use of these medicines are not denied access to necessary treatments. We will take the first steps toward developing this framework in the coming months, with the goal of providing standards that could inform the development of evidence based guidelines.

Opioid prescriptions peaked in 2010, and high-dose opioid prescriptions are down more than 41 percent since then. Yet the overdose rate continues to climb year after year, with fentanyl and heroin being the major culprits while overdoses from prescription type opioids have stabilized and have even slightly receded. The overdose problem was never really primarily caused by doctors treating patients in pain. It has always been principally due to nonmedical users accessing opioids in the illegal market. And as prescription opioids have become less accessible to them, they are migrating over to more dangerous drugs. The present policy towards the problem is making patients suffer while, at the same time, driving up the death rate. 

This is the first indication that a significant member of the Administration might be coming to that realization.

President Trump’s administration is ramping up immigration enforcement in the interior of the United States and along the border.  However, the near-half-century low in illegal border crossers, the longer-settled illegal immigrant population inside of the country, and resistance by state and local governments are hampering his administration’s efforts to boost deportation.  Try as he might, his administration will not be able to ramp up removals to the level seen in the first term of the Obama administration. 

Definitions

A removal is defined as when a person is transported outside of the United States because he or she violated the immigration laws.  Removals are not technically a punishment under U.S. law as it is a civil penalty and not a criminal one.  Some immigration laws are criminal, such as illegal reentry, and those convicted of that crime serve their time in prison and are then removed from the United States.  Although not technically a punishment, the effects of removal can often be worse than imprisonment. 

Removals encompass unlawfully present foreigners who were apprehended inside of the United States, which is what we commonly think of as “deportations,” and those apprehended while trying to enter the country but who are excluded.  Those removed are placed into legal proceedings to be formally expelled from the United States.  Returns refers to Mexicans and Canadians who are apprehended at the border and is a less severe and more rapid process.  Since the second Bush administration, a much larger percentage of illegal immigrants caught on the border have been removed rather than returned.

All of the years in these charts refer to the fiscal years.  For instance, fiscal year (FY) 2017 runs from October 1st, 2016 through September 30, 2017.  This presents some limitations for comparing immigration enforcement under the Trump administration with the Obama administration for FY 2017 as Obama was president for the first four months of that year.  As a result, the increase in enforcement during the first year of Trump’s administration is undercounted in most of the figures below. 

Criminal and Noncriminal Removals and Enforcement

Criminal removals are for those who are convicted of crimes, mostly nonviolent and nonproperty offenses such as violations of immigration law.  Much of the fear today is that the Trump administration will increase the removals of noncriminal illegal immigrants.  While they certainly are targeted, the number and percentage of noncriminal removals are barely changed in 2017 compared to 2016 (Figure 1).  The number of criminal removals climbed by about 11,000 and noncriminal removals by about 3,000 in 2017 relative to 2016. 

 

Figure 1

Criminal and Noncriminal Removals

 

Source: Immigration and Customs Enforcement.

 

The removal numbers in Figure 1 include many of those apprehended along the border and removed, a number influenced more by the flow of illegal immigrants into the United States than the intensity of enforcement.  Removals from the interior of the United States are the real worry as they could uproot long-settled illegal immigrants and disrupt their families, many of whom include U.S.-born American citizen children.  Focusing on removals from the interior of the United States shows that President Trump has more than doubled the proportion who are noncriminals (Figure 2).  The number of removals from the interior of the United States was up 25 percent in 2017 over 2016, from 65,332 to 81,603.  That is a substantial increase but still far below the annual figures for the first six years of the Obama administration. 

 

Figure 2

Interior Removals by Criminality

 

Source: Immigration and Customs Enforcement.

 

Criminal removals as a percent of all removals increased at the beginning of the Trump administration from 50 percent in December 2016 to 59 percent in March 2017, but those are only a few months and more complete data is necessary to fully understand when Immigration and Customs Enforcement (ICE) started to focus more on noncriminals (Figure 3).

 

Figure 3

Criminal Removals at Beginning of Trump Administration

 

Source: Immigration and Customs Enforcement.

 

The Trump administration is flexing its immigration enforcement muscles by ramping up arrests.  ICE arrested about 33,000 more people in 2017 than in 2016, representing a 30 percent increase (Figure 4).  Furthermore, a far greater percentage of those arrests were noncriminals—26 percent versus 14 percent.  To put this in perspective, the percentage of criminal arrests in Trump’s first year is similar to 2014 during the Obama administration although Obama’s ICE arrested more people overall.  Furthermore, ICE ERO administrative arrests during Trump’s first year were about half of the number of those during Obama’s first year and the entire difference was that Obama arrested more noncriminals.  Comparing ERO administrative arrests for January 20, 2017 through September 30, 2017 to January 20, 2016 through September 30, 2016 shows an even sharper increase of 42 percent from 77,806 to 110,568. 

 

Figure 4

Enforcement and Removal Operations Administrative Arrests

 

Source: Immigration and Customs Enforcement.

ICE relies heavily on detainers that it places on immigrants apprehended by other law enforcement agencies.  These detainers request that the agency holding the immigrant delays their release for a period of time so that ICE can take custody for removal.  The number of detainers is also based on federal immigration enforcement priorities which have been widened to all illegal immigrants under the Trump administration.  Consequently, the number of detainers that ICE issued increased by 56 percent from December 2016 to November 2017 (Figure 5). 

 

Figure 5

ICE Detainers by Month

 

Source: Transactional Records Access Clearinghouse.

 

Border Apprehensions

The Trump administration is expanding interior immigration enforcement but its removals will remain below those of President Obama because so many fewer illegal immigrants are entering the United States. Border Patrol apprehensions along the Southwest Border are low by historical standards and likely to keep falling depending on conditions south of the border (Figure 6).  The low number of illegal immigrants entering the country significantly reduces the scope for including border removals to pad the total removal numbers.  The Trump administration will have to rely on interior removals which will keep their numbers low relative to President Obama. 

 

Figure 6

Border Patrol Apprehensions on the Southwest Border

 

Source: Customs and Border Protection.

 

Courts

ERO administrative arrests (Figure 4) are up more than removals (Figure 1) and interior criminal removals (Figure 2).  Trump’s administration is trying to increase the number of deportations but an arrest is merely the first part of a long legal process with serious delays.  The first is the roughly 692,000 cases delayed in immigration court (Figure 7).  In 2018, the average immigration case is pending 718 days before a decision—a month and a half longer than in 2016 (Figure 8).  The Trump administration’s insistence on prosecuting all illegal border crossers is making the situation worse despite other efforts to streamline removals.  Immigrants have more due process rights than ever before and many of them are not Mexican so it takes longer to remove people from the United States, a delay that is reflected in the immigration court backlogs.

 

Figure 7

Immigration Court Case Backlog

 

Source: Transactional Records Access Clearinghouse.

 

Figure 8

Immigration Court Backlog in Days

 

Source: Transactional Records Access Clearinghouse.

 

 

Conclusion

The Trump administration is desperately trying to increase the number of removals but it is unlikely that they will reach the numbers achieved during Obama’s first term for at least three reasons.  First, states and localities are not cooperating with the Trump administration nearly as much as they did during the Obama administration, which will make it harder to identify illegal immigrants.  Second, many fewer illegal immigrants are trying to enter the United States so Trump will be unable to pad the numbers with border removals.  Third, immigration courts are desperately backlogged so the pace of removals will be slow.   

 

 

 

 

On April 19, 2018 the Trump administration released an updated version of the U.S. Conventional Arms Transfer Policy, the primary document outlining the strategy and guidelines for American arms sales abroad. Compared to the Obama- and Bush-era guidelines, the Trump administration’s policy emphasizes the economic benefits from arms sales. As a result, the new policy is focused on streamlining the arms sales process, loosening controls on what can be exported, and encouraging the U.S. government to be more active in brokering deals. At a news briefing announcing the new policy Peter Navarro, assistant to the president for trade and manufacturing policy, said that, “This will keep our defense industrial base in the vanguard of emerging defense technologies while creating thousands of additional jobs with good wages and generating substantial export revenues.”

Though the consequences of this policy change will take years to unfold, there are several things we can already predict about the limits and dangers of the new policy. Below we list the most important areas to watch and provide links to some of the best analysis available to date around the web.

It’s all about jobs, but it won’t create many.

If the administration’s primary goal is to enrich a few major defense contractors, it may succeed. If, on the other hand, the goal is to create American jobs and bolster the economy more generally, disappointment is inevitable.

Jonathan Caverley, writing at War on the Rocks, argues:

Even if the Trump administration boosts sales against such headwinds, this will not create many additional jobs. Arms exports are a surprisingly inefficient means of employing people at home. Using census data, the Commerce Department estimates that a billion dollars of defense exports would “create or sustain” 3,918 jobs, considerably fewer than the 5,700 jobs per billion created by increased US exports more broadly. Doubling the United States’ annual arms exports to $40 billion, a highly unrealistic goal, would thus create fewer than 80,000 new jobs. There are other industries the United States can promote that will have larger effects on jobs.

Unleash the drones

Until now the United States has kept a close hold on armed drones like the Predator and Reaper, allowing China to meet most of the global demand. Under the new policy the United States will begin to sell some drones through the direct commercial sales process.

In an oped for the the Washington Post Michael C. Horowitz and Joshua A. Shwartz write:

The new policy goes further than the Obama administration’s 2015 guidance in a few ways. This means U.S. manufacturers can export more directly to other countries and bypass the foreign military sales process, which entails more time-consuming involvement from the U.S. government. Second, the new rules reclassify drones with strike-enabling technology, like laser target designators, as unarmed, which will make it easier to export them.

Counterterrorism baked right in

A much less visible policy change with important ramifications is the move by the House Foreign Affairs Committee to amend the Arms Export Control Act to include counterterrorism as an explicit strategic justification for weapon sales.

As Caroline wrote for Ink Stick, this seemingly subtle change in language expands the legal and institutional footprint of the war on terror and does so despite the fact that most of the major conventional weapons for sale by the U.S. aren’t much use for fighting terrorism or insurgencies. 

Every fed is now a salesperson

With this increased sales push, the Trump administration has established a new “whole of government” approach. From the same Inkstick article, Caroline also notes,

The change will effectively turn civil servants who had been third-party brokers between foreign governments and American defense contractors into de facto salespeople. Officials talking up American defense products isn’t new, but giving them the directive to increase “economic security” gives profit a greater emphasis — with the commander-in-chief and his 2017 sales pitches to the Saudis, for example, offering model behavior in this regard.

Arms sales will now (likely) cost U.S. taxpayers more money

It’s still unclear how this strategy will be implemented at the guidance and framework level, but there are several logical changes that could flow from a new emphasis on profit. This could include a transition from deals that use offsets as incentives to increased use of Foreign Military Financing and other incentives that would shift the burden of incentives from industry to the federal government. Caroline explained the implications of this change, writing

Currently, the majority of incentives to foreign buyers of American weapons come in the form of offsets. These agreements are made once the US government has cleared a sale and the company can liaise with whichever foreign government is purchasing the product. Offsets are meant to make the deals more attractive, and can include anything from co-production to technology transfer to Foreign Direct Investments. This takes a major cut out of any profit for the defense contractors, who shoulder most of the cost. In 2014 alone, contractors reported $20.5 billion in defense-related merchandise exports, with $13 billion worth of those sales including some kind of offset. The total value of reported offset agreements for that year was $7.7 billion — over one-third the value of total defense exports for that year.

Obviously, this makes offsets an unattractive option for increasing economic security. The defense industry would prefer not to bear that burden—so then how will diplomats sweeten the deal for interested buyers while still protecting profit margins? …

Foreign Military Financing…to the rescue?

This type of financing comes directly out of the US federal budget—specifically out of the State Department’s portion. The final budget omnibus that was signed into law in March settled on $6.1 billion to give freely to other countries to purchase American weapons. That’s right—$6 billion of American taxpayer dollars this year alone will go towards subsidizing the arsenals of other nations so that they too can “Buy American.” Foreign Military Financing had, until now, been on the decline. From 1985 to 2015 the program decreased 50 percent in real terms. With this new economic security component to stated guidance on arms sales, there is a very real possibility that Foreign Military Financing could continue to rise.

Arms sales will continue to be a risky business

As we wrote in a Cato Policy Analysis published in March, the United States has a poor track record when it comes to assessing the potential risks from selling weapons abroad. Since 2002 the United States has sold over $300 billion worth of major conventional weapons to 167 countries including places with repressive governments, histories of human rights abuses, and which are engaged in active conflicts.

Unfortunately, despite the many negative unintended consequences that arms sales can spawn, nothing in the Trump administration’s new policy suggests it will pay any more attention to these risks than previous administrations. Given the administration’s zeal to sell more weapons abroad, the most likely outcome is even less sensitivity to downstream risks. Stay tuned.

With 25 conflicts added to the Battle Map, April was a busy month. So busy the Dispatch was delayed again. But better late than never, right?

Just like March, April was heavy with conflicts revolving around guns, as the debate spurred by the Parkland shooting continued. But seemingly eternal hot-spots including Confederate flag displays, prayer in schools, and sex ed flared up, too.

  • Guns: We recorded seven gun-related incidents, most pitting freedom of expression against safety or beliefs about the appropriateness of gun-related messages. Allegations of curbed speech included the Shawnee Mission, KS, school district telling students what they could or could not say at their April 20 walkout to protest gun violence. Students in Wisconsin, Massachusetts, and Nevada alleged that their pro-gun expression was curbed in various ways. A principal’s pro-gun comments in Charlotte-Mecklenburg, NC, led to possible disciplinary action against her and prompted Rep. Robert Pittenger (R-NC) to write a letter to the U.S. Department of Education asking if other districts had seen an employee’s speech bring out the “thought police.” A North Carolina state legislator made a moral plea for arming teachers, saying, “We should give them a fighting chance. Otherwise, when they die, and children die whom they could have defended, their blood will be on our hands.” Finally, Kyle Kashuv, a Parkland survivor who has defended gun rights, was repeatedly in the news for actions school personnel allegedly took against him.
  • Confederate Flags: Overall the Map contains 34 conflicts involving displays of Confederate flags, and two new ones were added in April, both revolving around displays on trucks in school parking lots. In Bay City, Michigan, accusations that an African-American student ripped a flag off a truck and the school did nothing about it prompted both pro-flag and Black Lives Matter demonstrations that closed the high school for a day. In Cleveland County, NC, students were suspended for flying Confederate flags. District officials, reacting to widespread displeasure over stories that flag displays were banned, said that it was fine to fly American flags, just not Confederate.
  • Sex Education: Sexuality has so many moral, religious, and safety ramifications, it’s no wonder it is constantly inflaming conflict. Indeed, I still need to read the book (it’s actually been a busy several years, not just month) but scorching disagreement over sex ed is an international phenomenon. April saw a national, coordinated effort to get parents to remove their kids from school to protest overly explicit sex education—dubbed the “Sex Ed Sit Out”—no doubt patterned after the Parkland gun walkout. Meanwhile a bill was introduced in Louisiana to go in the opposite direction, moving away from abstinence-only sex education.
  • Religion: Sex ed elicits a lot of religious concerns, but more directly religious expression and activities also spurred battles in April, as religion has done from the very beginning of public schooling. A bill was introduced in the Louisiana Senate to allow teachers to pray with students during the school day as long it doesn’t interfere with teaching. The Freedom from Religion Foundation warned that the legislation “would encourage teachers to show their students that they prefer and endorse Christianity, ostracizing non-Christian students.” Meanwhile, a teacher in Mobile, AL, was sent home after wearing a t-shirt that said “Just Pray.” Wrote teacher Chris Burrell in a since-deleted Facebook post, “I wasn’t trying to promote religion, it was just my Monday feel-good shirt.” Finally, Worcester, Maryland, saw people (ironically) getting angry over “Mindfulness” yoga, which some residents thought was putting Hindu spiritual activities into the schools, not just promoting good social and emotional health.

There were other conflicts in “the cruelest month,” of course—big headline grabbers involved a racially charged “promposal,” flowers for a gay teacher, and ordered use of Band-Aids—and we also asked a poll question on our Facebook page: “Should parents have the right to keep their child home to protest sex education?” The overwhelming response—95 to 5 percent—was “yes.” Right now we’re asking if it is acceptable for a teacher to pull a student’s hair, presumably in jest, to wake him up. Vote now, and we’ll report the results next month—hopefully towards the beginning of the month.

Richard Clarida had his nomination hearing to become Vice Chair of the Board of Governors of the Federal Reserve System before the Senate today.  He delivered a nearly mistake-free performance, giving articulate and concise answers to Banking Committee members’ questions.  His responses showed an understanding of both the Fed’s current normalization plans and some political concerns.

Clarida is widely agreed to be an expert on the international monetary system, with his nomination receiving a bipartisan letter of support, a rare occurrence in today’s Washington.  However, most of the questions he fielded were on the regulatory aspects of the Fed.  Here, Clarida mostly underscored Chair Powell’s interest in employing cost-benefit analysis to appropriately tailor regulations throughout the financial system, without sacrificing safety and soundness. 

Clarida’s missed opportunity came when Senator Elizabeth Warren asked whether any Fed “rule” could be made stronger.  Candidly, his answer was mostly boilerplate.  Instead of standard talking points, Clarida could have highlighted the evolution of his own thinking on monetary rules and targets since the crisis that has led him to embrace a price level targeting regime.  While such a target is better than the Fed’s current inflation target, there are reasons to believe Clarida may become an advocate of superior option: nominal GDP level targeting.  Adopting the proper target would improve monetary policy, in terms of both credibility and effectiveness, and address many of the concerns voiced by Senators today—from seeing escalating home foreclosures during downturns to having the Fed employ multiple rounds of QE to combat those slowdowns.

The Washington Post editorialized last month in favor of dropping the voting age to 16. I dashed off a letter to the editor, which they didn’t run, and is here adapted:

At what point are young people to be entrusted with important life responsibilities? The Post has repeatedly opposed easing the drinking age from 21 so as to allow persons of 18 or 20, who may include service members returning from combat missions, to enjoy a glass of beer. It opposes subjecting late-teen juvenile offenders to the level of accountability applied to adult criminal defendants. Its coverage suggests sympathy with proposals to raise the marriage age to 18, which would mean that a couple of 17 is not deemed mature enough to enter on binding vows of mutual support even with parental blessing and judicial ascertainment of their independent choice.

Now the Post supports slashing the voting age to 16. Perhaps the pattern here is that the Post sees 16 year olds as incapable of making decisions to govern their own lives, yet competent to govern everyone else’s.

 [cross-posted from Overlawyered]

On Friday, White House Chief of Staff John Kelly justified the administration’s new policy of separating children from parents fleeing violence in Central America by explaining:

They’re not MS-13… . But they’re also not people that would easily assimilate into the United States, into our modern society. They’re overwhelmingly rural people. In the countries they come from, fourth-, fifth-, sixth-grade educations are kind of the norm. They don’t speak English; obviously that’s a big thing. … They don’t integrate well; they don’t have skills.

His comments mix true facts—that Central American immigrants aren’t criminals, that they tend to have less education, that they often speak less English—with several inaccuracies—that they can’t fit into modern society, that they don’t have skills that the United States can employ, and ultimately that they don’t assimilate or can’t integrate well.

First Generation Central American Immigrants Assimilate

Kelly is correct that the vast majority of Central American immigrants do not speak English when they arrive in the United States. In 2016, according to data from the American Community Survey, 82 percent of Central American immigrant adults over the age of 25 who arrived that year spoke English “not well” or “not at all,” but as Figure 1 shows, length of residence does appear to result in greater language acquisition, with nearly three quarters knowing English after three decades or more in the United States.

Adult Central American Immigrants Speaking English Not Well

Their rapid integration into the labor market belies their supposed lack of skills and inability to adapt to a modern economy. With less than a year in the United States, already nearly half of Central American adults had found employment in 2016. As Figure 2 indicates, employment rates increase with the length of residence in the United States. Those with more than five years in the United States had an employment rate over 70 percent, more than 10 percentage points higher than the rate for all U.S. adults.

Share of Employed Adult Central American Immigrants

Naturally, this labor market integration eventually raises immigrants out of poverty. As Figure 3 shows, poverty among Central American adult immigrants who have lived in the United States in 2016 drops substantially, and those with 30 or more years experience in the United States had a lower poverty rate in 2016 than all U.S. adults.

Share of Adult Central American Immigrants in Poverty

It is possible that the better outcomes for immigrants who have lived in the United States longer were caused by better starting points, rather than by assimilation. I used the 1-year sample from 2006 to compare to 2016 to verify that residence is driving these trends, not wealthier and more employable immigrants in prior waves. For example, 78 percent of Central American immigrant adults who arrived from 2002 to 2006 spoke English “not well” or “not at all” in 2006. In 2016, only 63 percent of those who arrived during those years did. In 2006, just 60 percent of immigrant adults who arrived that year were employed. 73 percent of them were in 2016.

Descendants of Central American Immigrants Assimilate

Perhaps Kelly meant that the children and grandchildren of Central American immigrants don’t assimilate well. Unfortunately, the American Community Survey doesn’t make it easy to identify people as the children of Central Americans once they reach adulthood. However, they do ask about a person’s ancestry, and since most Americans with Central American ancestry are the children of immigrants, this category allows us to understand the trends on the intergenerational assimilation of Central Americans. Ancestry is a better measure than ethnicity, which people often abandon after one or two generations.

English language assimilation continues even faster into the second generation. Figure 4 highlights the impressive difference between first-generation immigrants with Central American ancestry and their descendants born in the United States (i.e. “natives”). 91 percent of Americans with Central American ancestry speak English “very well” with another 6 percent speaking it “well”. Only 3 percent speak it poorly or not at all. This compares with 49 percent in the first generation.

English Language Proficiency of Adults

The descendants of Central American immigrants also make significant strides in educational attainment. Kelly is right that Central American immigrants have little formal schooling—half had dropped out of high school, and just eight percent had a college degree in 2016. Adults with Central American ancestry who were born in the United States had the exact same level of educational attainment as all other natives—30 percent had a college degree, and only 10 percent dropped out of high school.

Educational Attainment for Adults

Central American native-born adults have no fall-off in terms of finding jobs either. In 2016, 78 percent of them were employed—a higher rate than Central American immigrant adults and nearly 20 percentage points higher than all other adults born in the United States.

Employment Status for Adults with Central American

Nearly 28 percent of native-born children with Central American ancestry were in poverty in 2016, but as Figure 7 shows, the percentage drops sharply among adults to the same or lower level than other U.S.-born Americans. Fully 90 percent of Americans with Central American ancestry over the age of 36 were not in poverty.

Share in Poverty for Adults

Other measures of assimilation—like patriotism—are difficult to capture in the American Community Survey data. But to the extent that enlisting in the military reflects a love for country, American adults with Central American ancestry were more than twice as likely to be an active duty member of the military than other U.S.-born American adults, as Figure 8 shows.

Share in Active Duty Military for Adults

How to Improve Assimilation: Give Legal Status

The level of assimilation that Central American immigrants and their children achieve is remarkable given that nearly half of all Central American immigrants are in the United States without formal legal status. This means that they cannot find legal employment, that the law requires employers to discriminate against them, that they cannot ever naturalize and become citizens, that they cannot receive in-state tuition and other benefits available to legal immigrants in many states, that they have no certainty about their future and could be forcibly removed at any time.

In other words, integration of Central American immigrants is occurring despite the best efforts of the United States government to prevent it. If Kelly is concerned that the rate of assimilation is still not quick enough, he should argue for legalizing immigration to the United States for workers without a college degree and for giving a pathway to citizenship to those who have lived in the United States for several years. These measures would incentivize better integration than criminally prosecuting parents and separating them from their children.

Obviously, Kelly’s concerns—even if true—have no bearing on the reasonability of forcibly taking children away from their parents. But at a minimum, we can conclude that Kelly’s concerns about assimilation and integration are wildly overblown. Central Americans assimilate quite well.

North Carolina is becoming the latest hot spot in the education funding wildfire—thousands of protesting teachers are expected in Raleigh on Wednesday—so before I deliver the promised wrap up on my state spending series, I thought I’d add NC to the mix.

As you can see on the following chart, North Carolina’s total spending per-pupil, which includes both operational and capital costs, fell appreciably between the 1999-00 school year, the earliest with readily available federal data, and 14-15. It dropped from inflation-adjusted $10,397 to $8,986, a roughly 14 percent decline. Like other states already profiled, spending peaked right before the recession, but unlike hot-spot states Colorado, Oklahoma, and West Virginia, it never recovered to eventually exceed the beginning of the period. It basically kept dropping until the last year in the period.

Where have the biggest changes been? Breaking the spending down in the chart below, the state has generally kept instructional spending pretty steady, ending only 3 percent lower in 14-15 than 99-00. The big drops were in capital outlays and interest on school debt. The latter disappeared almost entirely, and the former dropped 71 percent, from $1,549 to $448. Like other hot-spot states, North Carolina saw increases in various support categories, with the biggest percentage increase in “other support,” which grew 50 percent.

So there’s your North Carolina snapshot. Coming next: Our final installment looking at some of the possible reasons for these changes.

Robert McCoy was charged with the murder of three of his family members in Bossier City, Louisiana. The state brought capital charges against him, but McCoy maintained his innocence—claiming he was not even in the state at the time of the murders—and demanded a jury trial. But in light of the evidence against him, McCoy’s lawyer thought the best trial strategy would be to admit guilt to the jury and hope for leniency in sentencing. McCoy adamantly opposed this plan, but his lawyer pursued it anyway and told the jury that McCoy was guilty. The jury returned three murder convictions and sentenced McCoy to death.

Today, the Supreme Court held that it violated the Sixth Amendment for McCoy’s lawyer to admit his guilt over his express objection, and it ordered the state of Louisiana to grant McCoy a new trial. The majority opinion by Justice Ginsburg accords with the principle of defendant autonomy, and the long-standing maxim that the Sixth Amendment guarantees the right to a personal defense. While a defendant is, of course, guaranteed the “Assistance of Counsel,” the defendant himself remains master of the defense and is entitled to make fundamental decisions in his own case. The heart of the Court’s analysis closely follows the framework (and language) articulated in Cato’s amicus brief, which emphasized that defendant autonomy—not ineffective assistance of counsel—was the proper lens through which to view this case:

Autonomy to decide that the objective of the defense is to assert innocence belongs in this latter category [of decisions within the defendant’s sole prerogative]. Just as a defendant may steadfastly refuse to plead guilty in the face of overwhelming evidence against her, or reject the assistance of legal counsel despite the defendant’s own inexperience and lack of professional qualifications, so may she insist on maintaining her innocence at the guilt phase of a capital trial. These are not strategic choices about how best to achieve a client’s objectives; they are choices about what the client’s objectives in fact are.

Counsel may reasonably assess a concession of guilt as best suited to avoiding the death penalty, as [McCoy’s lawyer] did in this case. But the client may not share that objective. He may wish to avoid, above all else, the opprobrium that comes with admitting he killed family members. Or he may hold life in prison not worth living and prefer to risk death for any hope, however small, of exoneration. When a client expressly asserts that the objective of “his defence” is to maintain innocence of the charged criminal acts, his lawyer must abide by that objective and may not override it by conceding guilt.

Slip op. at 6-8 (citations omitted).

The Supreme Court’s vindication of McCoy’s autonomy is all the more crucial because the jury trial itself—that cornerstone of American criminal justice—is fast vanishing to the point of practical extinction. Our Constitution and legal heritage are premised on citizen participation in the criminal justice system. But today, more than 95 percent of criminal convictions are obtained through plea bargains, in which prosecutors can bring insurmountable pressure against defendants. Even innocent defendants are often forced to plead guilty, simply because the threat of a much harsher sentence at trial is too great. And coercive plea bargaining is exacerbated by the practical inability of most appointed defense counsel to subject prosecutions to meaningful testing. Public defenders are saddled with impossible caseloads, with individual attorneys often required to manage hundreds of different felonies per year, and even more misdemeanors. The role of defense counsel, intended to serve as the defendant’s trial advocate before a jury, has largely been reduced to that of plea negotiator.

There’s no easy solution to the problem of coercive plea bargaining, but the least we can do is not discourage trials even more than we already have. Jury trials entail risk and uncertainty, but the defendant should know that he will have a zealous advocate, committed to defending his innocence and putting the state to its burden. The Court’s decision today—guaranteeing defendants the right to decide for themselves whether to admit guilt at trial—is a small but important step toward restoring the centrality of the jury trial in our adversarial system of criminal justice.

The Fourteenth Amendment states that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.” Passed during Reconstruction, these provisions held the promise that freedman would finally be granted the same rights and protections as their white brethren. Yet less than five years after this amendment was enacted, the Supreme Court eviscerated the Privileges or Immunities Clause in what became known as the Slaughter-House Cases (1873).

There the Court held that the clause—which was supposed to protect substantive rights against state infringement—only guaranteed a limited set of federal rights, such as the right to access seaports, to use navigable waters, and to demand protection on the high seas (not exactly the key motivations for the Civil War). The ruling not only delayed the protection of African Americans’ civil rights, it left the Court’s Fourteenth Amendment jurisprudence hopelessly confused and contradictory.

Slaughter-House eventually led to the development of modern “substantive” due process doctrine as a makeshift bandage over the hole in the Fourteenth Amendment left by the unprotected privileges and immunities. While allowing the Court to protect some rights, the “incorporation” of certain rights through the Due Process Clause relegated other, often “economic” rights to second-class status. Instead of judges’ taking a hard look at the actual reasons a law was passed and asking whether the government has overstepped its constitutional bounds, infringements of the right to earn a living or the freedom of contract barely receive a passing glance. They are upheld unless nobody—not even the judge hearing the case!—could possibly imagine a legitimate rationale for the law. Suffice it to say, hardly any laws are struck down under this so-called rational-basis test.

Enter Ndioba Niang and Tameka Stigers, both of whom are traditional African-style hair braiders attempting to support themselves by offering their services to willing customers. The Missouri Board of Cosmetology and Barber Examiners, however, demands that they first pay thousands of dollars to receive completely irrelevant training that has virtually nothing to do with hair-braiding. Applying the usual government-can-do-whatever-it-wants-regarding-economic-regulations level of judicial scrutiny, both the federal district court and the U.S. Court of Appeals for the Eighth Circuit upheld the licensing scheme.

This approach is wrong: ethically, historically, and legally. There is a long and well-documented history recognizing the right to earn an honest living as being at the center of the Anglo-American legal tradition and indispensable to the maintenance of a free and open society. Industry insiders often lobby for licensing laws and regulations—and then populate the boards or agencies tasked with enforcing the new rules as a means of limiting their competition. By contrast, those harmed are often politically powerless groups with limited means to fight back. But as long as the government says the magic words of “safety,” “health,” or “consumer protection” in asserting its restrictions, courts are content to turn a blind eye.

Because the right to earn a living is one of the basic rights that our Constitution was formed to protect, Cato has filed an amicus brief supporting the hair-braiders’ petition to the Supreme Court. We ask that the Court take Niang v. Tomblinson and establish that courts must meaningfully examine government incursions against this essential liberty, regardless where in the Fourteenth Amendment it finds the relevant right.

 

The smart money was always on the Supreme Court to make the kind of ruling it did today, strike down a federal law that purported to tell states whether they could legalize sports betting. That doesn’t make it any less exciting or refreshing—and it’s deliciously apt as both the Washington Capitals and Vegas Golden Knights remain in the hunt for the Stanley Cup. 

In the first “anti-commandeering” case in more than 20 years, the Court resoundingly (7-2) reaffirmed a principle that should be obvious: the federal government can’t force states to pursue federal policy. That there were seven votes for that proposition underlines the renewed interest in federalism that’s spreading across the country. 

Indeed, as important as Murphy v. NCAA is for the gaming industry, the reason this case was so closely watched is because of its implications on so many areas of policy that have revealed federal-state tensions of late. From environmental regulation to sanctuary cities, marijuana to guns, states are flexing their sovereign muscles in a way that strengthens our body politic. It’s insane to think that in a large, pluralistic country like the United States, so many decisions should be made one-size-fits-all in Washington. Federalism is good for red states and blue states alike. 

Finally, a note on what the Court didn’t decide today: despite the protestations of the two dissenting justices (Ruth Bader Ginsburg and Sonia Sotomayor), it’s not at all clear that the federal government has constitutional authority to ban or regulate in-state gambling (if it decided to do so directly now that it can’t force the states to do its dirty work). If New Jersey and Nevada want to allow the March Madness money to flow, while Utah and Georgia don’t, what business is it of Congress? Justice Clarence Thomas was right to call this out—so remember this day if and when the justices ever reconsider their overexpansive Commerce Clause jurisprudence. 

For more background on this case, see my previous post discussing Cato’s brief, my op-ed on the subject, and my short law review article

 

When medical examiners conclude that the cause of death is opioid overdose, they rely primarily on the opioid blood concentration level in comparison to a pre-determined “fatal” cutoff. This approach is potentially inaccurate; the fatal ranges used are wide, and they overlap significantly with the ranges for living opioid users.

Numerous fatal ranges have been quoted for methadone: 220-3040μg/L (mean, 1371), 320-2980μg/L (mean, 772), and 600-3000μg/L. Baselt’s Disposition of Toxic Drugs and Chemicals in Man found fatal levels of 400-1800μg/L (mean, 1000) and 60-3100μg/L (mean, 280). These ranges are much too broad for determining cause of death because they include ranges experienced by many living users.

Worm et al. (1992) compared the methadone blood concentration levels of individuals who reportedly died from methadone toxicity while in treatment, out of treatment, or living: 30–1240μg/L (mean, 470), 30–990μg/L (mean, 270), and 30–560 μg/L (mean, 140). While the mean was lower for living methadone users, the ranges overlapped substantially.

Loimer and Schmid (1992) found a blood concentration range of 20–1308 μg/L (mean, 451.4) after a moderate oral methadone dose in 104 living addicts. Gagajewski and Apple (2003) found blood concentration ranges in deaths where methadone was an incidental finding of 180-3000 μg/L (mean, 1100 μg/L). In contrast, by Milroy and Forrest (2000) found the mean methadone range for those who reportedly died from methadone toxicity as 584–2700μg/L (mean, 584), with the majority under 500 μg/L.

Karch and Stephens (2000) compared the blood concentration levels between deaths “caused” by methadone toxicity and deaths where methadone was an incidental finding; they found no statistically significant difference.

Fatal morphine to blood concentrations from heroin use also vary widely. The minimum fatal concentration under North Carolina standards is 100μg/L, and Baselt has given fatal ranges of 50-3000 μg/L (mean, 430) and 10-1100 μg/L (mean, 300). Steven Karch, in his book Pathologies of Drug Abuse, examined twelve studies regarding fatal morphine concentrations and also found a wide range of fatal levels, from 100-2800 μg/L.

Darke et al. (1997) compared morphine concentration levels of current heroin users and heroin overdose deaths. Heroin-related deaths had a higher median concentration (350μg/L versus 90μg/L), but the concentrations overlapped substantially. In particular, a third of current users had morphine concentrations double the “fatal” level of blood morphine concentration.

Darke et al. (2007) compared the morphine concentration levels in deaths ruled morphine toxicity with those ruled homicide but with morphine in the body, finding no significant difference between the two groups.

With fatal toxic concentrations levels being so broad and overlapping with ranges that many addicts live with, a toxicology report is of little help when determining the cause of death. These broad ranges can skew medical examiner’s reporting and lead to an overrepresentation of heroin and methadone overdoses.

Theseus Schulze contributed to this blog post.

President Trump is seeking tariffs of $50 billion annually on more than 100 products imported from China. He is targeting telecommunications and other high-technology sectors where he and others contend that American companies have, in effect, been forced to turn over their technology to Chinese partners – in some cases by revealing their trade secrets – in exchange for being allowed to do business in China and have access to the booming Chinese market. These tariffs are to be imposed outside the legal bounds of the WTO treaty through unilateral actions taken under Section 301 of the US Trade Act of 1974.

For many of these U.S. allegations about China, however, WTO obligations apply, and could provide more effective recourse.  The various options under the WTO treaty for challenging Chinese trade practices will be explored in more detail in a forthcoming paper. This blog post focuses on one particular WTO obligation, covering trade secrets.

The Trump administration has been raising concerns about China’s failure to protect trade secrets, but evidently ignored so far is Article 39 of the TRIPS Agreement in the WTO treaty, which establishes a WTO obligation for the “Protection of Undisclosed Information.”[1] The United States was among the leaders in advocating the inclusion of Article 39 in the TRIPS Agreement as part of the WTO treaty, but the United States has, to date, not initiated an action in WTO dispute settlement claiming a violation by China of this WTO obligation.

Article 39 is a major innovation in intellectual property protection under international law. It is “the first multilateral acknowledgement of the essential role that trade secrets play in industry”[2] and “the first multilateral agreement to explicitly require member countries to provide protection for… ‘trade secrets.’”[3] One of the accomplishments of the Uruguay Round of multilateral trade negotiations that concluded the WTO treaty and established the WTO, “’[t]he inclusion of trade secrets under the TRIPS has been hailed as a major innovation.”[4]

This innovative WTO obligation offers an opportunity for challenging both the sufficiency of Chinese law and its application as part of a WTO complaint that China has not fulfilled its responsibility to enforce the protection of “undisclosed information.”

A specific focus of any WTO complaint by the United States relating to the failure of China to enforce the protection of trade secrets will be the continuing legal shortcomings of the Anti-Unfair Competition Law of China, which, as the Office of the United States Trade Representative has pointed out in its Special 301 Report for 2018, include “the overly narrow scope of covered actions and actors, the failure to address obstacles to injunctive relief, and the need to allow for evidentiary burden shifting in appropriate circumstances, in addition to other concerns.”[5] As USTR observes, in the 2017 update of the Anti-Unfair Competition Law, “despite long-term engagement from the United States and others – including from within China – China chose not to establish a stand-alone trade secrets law, and instead continued to seat important trade secrets provisions in the AUCL, an arrangement which contributes to definitional, conceptual, and practical shortcomings relating to trade secrets protection.”[6]

Those who would rather apply the broad illegal brush of unilateral tariffs instead of the sharp legal stiletto of a precise claim in WTO dispute settlement will protest that Article 39 has never been tested in a WTO dispute. This is true. Yet similar protests were heard ten and fifteen years ago against bringing legal claims in WTO dispute settlement under the Agreement on Technical Barriers to Trade and the Agreement on the Application of Sanitary and Phytosanitary Measures, which have both since been proven to be reliable tools for upholding and enforcing WTO obligations. Not having been tested is not the same as having been tried and found wanting. Until proven otherwise, a legal claim of a failure to protect “undisclosed information” under the novel obligation in Article 39 of the TRIPS Agreement must be seen as a potentially positive means to the end of protecting trade secrets.

It will certainly be said as well that proving a legal claim of illegal infringement of undisclosed information under Article 39 in WTO dispute settlement will not be easily accomplished. This also is true. As the complainant, the United States will have the burden of proving this and all its legal claims against China in  WTO dispute settlement. In challenging the enforcement of the Chinese law, the United States, with respect to each alleged infringement of a trade secret, will have to show to the satisfaction of a WTO panel that there is in fact “undisclosed information” comprising a trade secret. Moreover, the United States will have to prove to the panel each particular instance of the illegal infringement of specific trade secrets.

All of this will necessarily involve the accumulation and the submission of a veritable mountain of evidence – not easy in any case and certainly not easy in a case against a WTO Member with such an opaque and elusive economic and administrative system. Without question, China presents a formidable climb in the necessary fact gathering for winning a WTO case. But the United States has climbed this mountain successfully before in a series of complicated WTO complaints it has brought and won against China. Why is there so little confidence that the world-class legal advocates at USTR can climb it again?

Lastly, it will doubtless be insisted by those busy imposing unilateral tariffs that pursuing this claim and others in the WTO will take much time and much trouble and that, even if the United States prevails, a remedy is at best several years away. This likewise is true. But how much time and how much trouble are likely to result from the retaliatory legal actions and the retaliatory trade actions that are the certain consequence of tariffs imposed by the United States unilaterally and outside the legal framework of the WTO? Will US trade secrets be any better protected during the time it would take instead to seek and implement a WTO judgment under Article 39? And what other untold and untoward consequences will there be from an abandonment by the United States of America of the international rule of law?

[1] Article 39, TRIPS Agreement.

[2] Francois Dessemontet, “Protection of Trade Secrets and Confidential Information,” para. 3, at https://www.unil.ch/files/live/sites/cedidac/files/Articles/Protection%20Trade%20Secrets.pdf .

[3] Douglas C. Lippoldt and Mark F. Schulttz, “Trade Secrets, Innovation and the WTO,” Think Piece, E15 Expert Group on Trade and Innovation, E15 Initiative (Geneva: International Centre for Trade and Sustainable Development and World Economic Forum, August 2014), 1.

[4] Francois Dessemontet, “Protection of Trade Secrets and Confidential Information,” para. 2.

[5] Office of the United States Trade Representative, “2018 Special 301 Report” (April 27, 2018), 40.

[6] Ibid.

In a recent opinion piece for the Wall Street Journal I highlighted the plight of America’s Finest, a fishing vessel that, unless it is granted a waiver, will be prohibited from operating in U.S. waters due to its violation of the Jones Act. Although built in Washington state, the ship used steel, amounting to approximately 10 percent of the ship’s weight, that was cut and bent in the Netherlands. Coast Guard rules related to the Jones Act limit the amount of such foreign-modified steel to 1.5 percent (foreign-made raw steel, in contrast, can be used in unlimited amounts). 

Unsurprisingly the column has generated some notes of dissent, including a letter to the editor from Chris Philips, the managing editor of Fishermen’s News:

Regarding Colin Grabow’s “The Jones Act Drives America’s Finest Into Exile” (op-ed, April 30): The Jones Act is a cabotage rule similar to those enacted in most countries having a coastline, including Canada, Japan, South Korea, China, Germany and France. Mr. Grabow claims: “The shipyard says it simply wasn’t aware of the rule.”

The shipyard in question has been building Jones Act vessels for more than 40 years. No one at Dakota Creek Industries, from the security guard to the president, is unaware of the rule.

Mr. Philips is correct that the Jones Act is a cabotage rule. His contention that it is similar to those of most countries, and those he lists in particular, however, is incorrect. The World Economic Forum, for example, has described the Jones Act as the “most restrictive example” of such laws and none of the countries listed by Philips feature the Jones Act’s requirement that ships engaged in cabotage trade be domestically built. Furthermore, both Germany and France as members of the European Union allow ships from other EU members to engage in cabotage.

As for the claim by the shipyard which built America’s Finest that it was “wasn’t aware of the rule,” a fair reading of my column makes plain that this was in reference not to the Jones Act, but rather its specific restriction that foreign-modified steel is limited to 1.5 percent of the ship’s weight. Indeed, I cited that 1.5 percent figure in the sentence preceding the claim about a lack of awareness. 

Philips then continues:

Mr. Grabow says the price of new vessels encourages the use of older ships. This is a no-brainer and a non sequitur. The same market forces apply to any depreciable asset world-wide. He also makes the oft-repeated claim that the Jones Act “made it difficult to ship emergency aid to Puerto Rico.” This is simply false.

Such comments reflect a failure to engage with the substance of what I wrote. By prohibiting access to foreign-built ships—or in this case, domestically-built ships which use too much foreign-worked steel—the Jones Act artificially drives up the cost of newer vessels. This, in turn, forces mariners to work on ships that are less safe and efficient than newer vessels. Indeed, the company which ordered America’s Finest was motivated in part by a desire for greater efficiency and to provide its employees with safety improvements. This is by no means a non sequitur, and gets to the core of the burden imposed by the Jones Act.

Regarding aid to Puerto Rico, meanwhile, I stand by my words. Greenpeace, for example, says that it would have been easily able to transport donated supplies on a foreign-registered vessel to Puerto Rico absent the Jones Act, but instead the matter was “quite complicated.” Economist Thomas Grennes further notes that a “Norwegian-flag ship that was docked in New Orleans offered to take supplies to Puerto Rico, but the waiver expired before it could complete its voyage.” 

Philips concludes:

The Jones Act exists to protect our nation’s shipbuilding industry, which is critical to the security of this country. Those of us in the maritime and military fields understand this very well.

If this is so then the Jones Act, as typical of protectionist schemes, is a failure. In 2015 the U.S. Maritime Administration (MARAD) listed the number of active shipyards in the United States at 124 of which only 22 are “mid-sized to large shipyards capable of building naval ships and submarines, oceangoing cargo ships, drilling rigs and high-value, high-complexity mid-sized vessels.” In comparison, Japan currently has over 1,000 shipyards and it is estimated that China has over 2,000. Europe has roughly 60 shipyards capable of producing ships at least 150 meters in length. 

Measured in terms of output the picture is equally dismal, with the shipbuilding sector hugely dependent on government contracts. As MARAD itself notes, 10 out of 12 large deep-draft vessels delivered in 2014 were to U.S. government agencies and “98 out of the 150 new vessels ordered from U.S. private shipbuilders [that year] were for the U.S. military.” This lack of competitiveness and dependence on government is also evidenced by the fact that from 2006-2016 U.S. shipyards produced an average of merely 4.1 tankers and cargo ships per year. This is the opposite of a thriving sector. 

Such statistics are the tip of the iceberg in documenting the Jones Act’s myriad shortcomings, both in terms of ensuring a healthy shipbuilding sector and bolstering the country’s national security. 

During yesterday’s Senate Select Committee on Intelligence (SSCI) confirmation hearing on Gina Haspel’s nomination to become director of the CIA, I noted on Twitter that the Army and the CIA had literally walked away from the lessons and successes on detainee/POW interrogations learned during the 1991 Persian Gulf War. That prompted responses like this:

Fair critique or missing my point?

I agree with Beale that the circumstances of the capture of Iraqi soldiers and officers in the 1991 Gulf War were different than the rendition, detention, and interrogation (RDI) program run by the CIA, and the people (actual terrorists or innocents) swept up in it. But the notion that one group of captives (cooperative, captured Iraqi general officers) should be subjected to one standard while another group (uncooperative, captured alleged/actual terrorists) should be subjected to a different, violent, and brutal standard is wrong–on moral, legal, and effectiveness grounds.

As Senator (and former tortured POW) John McCain (R-AZ) noted in 2014 when the SSCI Torture Report summary was released:

But in the end, torture’s failure to serve its intended purpose isn’t the main reason to oppose its use. I have often said, and will always maintain, that this question isn’t about our enemies; it’s about us. It’s about who we were, who we are and who we aspire to be. It’s about how we represent ourselves to the world.

The other refrain we’ve heard in the debate over Haspel’s nomination is the same one we’ve heard from torture proponents (like President Trump), namely that torture works. Let’s take another look at what the SSCI torture report summary had to say about the difference in results between the FBI and CIA interrogators when dealing with an alleged or actual “dedicated jihadist” that Mr. Beale describes. From p. 208 of that report:

As anyone who knows my work understands, I have lots of problems with the way the FBI often conducts itself. But there’s one thing that Bureau agents are generally quite good at–eliciting information, including confessions, from even hardened murderers. How much more useful, accurate information would we have received in the wake of the 9/11 attacks if the FBI had been responsible for all such interrogations? My guess is, a lot.

But there was a time when the Army itself–which has its own dark chapter on torture in the post-9/11 era–knew how to do interrogations right. It’s what I was referring to in my tweet regarding the operations of the Army’s Joint Debriefing Center (JDC) during the Gulf War. While I was still at CIA, I filed a FOIA to try to get those reports released. Not surprisingly, in 1994 the Army wasn’t keen on doing so, but I did manage to get a heavily redacted version released, which you can read here.

One reason I filed the FOIA was that as an Army Reserve officer, I was deeply proud of how my fellow soldiers had comported themselves during the campaign. This extract from the Intelligence Information Report (IIR) titled “The Gulf War: An Iraqi General Officer’s Perspective” shows why:

Doing interrogations right is about us, not our enemies. But when we do interrogations right, it only helps us. Whether that lesson has truly been learned will be revealed in the Senate floor vote on Haspel’s nomination. 

This week, housing activists sued Secretary Carson and the Department of Housing and Urban Development (HUD) for delaying implementation of Affirmatively Furthering Fair Housing (AFFH), a controversial Obama-era HUD rule. The suit claims AFFH “was of great importance to Congress in enacting the [Fair Housing] Act.”

But as I’ve outlined previously, there isn’t a linear relationship between the Fair Housing Act and AFFH. The Fair Housing Act is focused on discrimination in the housing market and AFFH is focused on segregation.

There are other problems with AFFH. For example, AFFH requires federal and local government to spend up to $55 million annually collecting information, a good deal of which is unhelpful to its objective of understanding why racial segregation occurs. AFFH requires local governments to provide information on racial and ethnic concentrations, but that information doesn’t really tell policymakers what they want to know.

If policymakers are interested in determining the cause of racial segregation in cities, they don’t have to collect data and guess at it. A major cause of racial segregation is already known: zoning regulation. Zoning regulation segregates by race because race is frequently correlated with income.

Zoning segregates by income through density limits, minimum lot sizes, and by reducing the supply of housing in cities, thereby creating regional housing affordability issues that push low-income racial minorities out.

San Francisco’s mass exodus of racial minorities is a good example of this in practice. As one Atlantic article put it, “The people moving out [of San Francisco] are less likely to have completed college, and they tend be older, African American, and Hispanic…Perhaps no aspect of the annual migration in and out of San Francisco is as notable as the outflow of African Americans.”

The data supports the idea zoning increases segregation. In one study, 50 percent of the difference in levels of racial segregation between leniently regulated (less-segregated) Houston and restrictively zoned (more-segregated) Boston were a result of restrictive regulation. In another study, reducing zoning regulation was estimated to reduce the difference in racial segregation by at least 35% between the most and least segregated areas.

Regulations that limit development density may have the largest impact on racial segregation. Up-zoning (or increasing allowable development density) would reduce segregation naturally as individual choice improves. Up-zoning would support property rights and improve housing affordability as it increases housing supply.

If policy makers have decided that racial segregation rather than racial discrimination is the issue, a useful alternative to AFFH would require cities to identify neighborhoods that are currently zoned for low-density development and make plans to up-zone them. Cities have this information on-hand and wouldn’t have to expend enormous resources gathering it. This information would provide useful information about the origin of racial segregation.

Although collecting information on zoning would be more helpful, the Fair Housing Act doesn’t call for it. That makes this suggestion similar to AFFH from a process standpoint.

As a result, HUD should do what they can to remove AFFH, and eliminate the up-to-$55 million/year price tag along with it. HUD monitoring racial and income segregation isn’t going to meaningfully reduce barriers to housing opportunity. Local and state government relaxing restrictive zoning will.

One story about poverty in the United States goes like this: Poverty is simple to escape. Finish high school. Get a job, even a menial one. Do not have kids until you’re married. And if you do all these things, you’re pretty unlikely to be poor.

Conservatives like this story because it suggests that no significant social changes are needed to end poverty. On this view, poverty may even be just a personal choice. It’s largely up to you whether you follow the so-called “success sequence” or not.

Critics, though, are quick to point out that the success sequence is much easier described than followed, and that following it is much easier for some people than for others. Failing or dangerous schools offer little reason for students to remain. Getting a job is easier in some places than others, and easier for some types of people than others. In some communities, marriage partners are all too few. And avoiding having children is a lot to ask, because it’s a natural human desire to want to have them.

If the success sequence doesn’t hold up so well, what do we do about it? And what specifically libertarian steps remain to be done to fight poverty?

This month at Cato Unbound, we’re debating the usefulness of the success sequence as a tool for thinking about American poverty. Cato Senior Fellow Michael Tanner has written the lead essay, which I encourage you to read. Comments are open, and we welcome readers’ feedback. Discussion with a panel of diverse outside experts will continue through the end of the month.

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