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Today you are supposed to settle up with the IRS on your 2017 taxes. One would think that Tax Day was a painful, hated day for Americans. But the IRS commissioner recently noted that about 80 percent of households receive refunds upon filing, rather than having to make a further payment.

The predominance of refunds is a problem. For one thing, Tax Day has become more like Christmas with the receipt of gifts from Uncle Sam, rather than a day of sober reflection about the costs of government. Those costs are obscured under the income tax by employer withholding and Tax Day refunds. (I discuss other ways that politicians hide costs here).

Another problem with widespread refunds is that they make the system more vulnerable to cyber criminals. With 112 million people a year receiving an average IRS refund of $2,900, the tax system is a juicy target for scammers. One growing problem is that criminals are hacking tax preparation firms to access client data, then submitting fake returns with large refunds, and then finally convincing victims to give them the cash.

Vast IRS data collection on just about every adult in the nation has created major privacy and cybercrime vulnerabilities. Michael Hatfield of the University of Washington has examined some of the risks, including extensive refunds.

The refund problem has been exacerbated by the growth in refundable tax credits—mainly the earned income tax credit and child tax credit—which provide more than $80 billion a year in subsidies to tens of millions of people. These programs are rife with abuse, and should be scaled back or eliminated.

Another reform would be for the IRS to change its guidance for employer withholding to reduce the amounts deducted from worker paychecks. If more filers had to pay additional taxes in April, the system would be less vulnerable to scams and more people would be reminded that government spending ultimately comes out of their wallets.

Tomorrow is Tax Day, which is the deadline for you to mail or e-file your 1040 to the IRS.

We should say thanks on Tax Day, but not to the federal politicians who impose $1.6 trillion of income taxes on us and spend that treasure on low-value, damaging, and pork-barrel programs.

Rather, we should thank the entrepreneurs and other high earners who work hard, create jobs, invent new industries, and make a lot of money doing so. Those folks bear most of the costs of all that federal spending.

The harder you work and more value you add, the more the government wallops you under the income tax. The more benefits you generate for society through the marketplace, the larger the share of your earnings the government confiscates.

The chart shows that the top-earning 1 percent of households paid 39 percent of all individual income taxes in 2015, while the top 10 percent paid 71 percent. The data is here. Those shares have risen over time, and the new tax law exacerbates the upward skew in burdens.

The data for 2015 also show that average federal income taxes paid as a share of income for the top 1 percent of households was 27 percent, while the average for the other 99 percent of households was 11 percent. 

Some people call this “progressive,” but to me it is unproductive and discriminatory. It also weakens political responsibility when the costs of government are borne so narrowly.

So on Tax Day, we should ponder the huge cost of government, while also considering whether it is healthy for democracy when such a small group carries most of the load.

The Boston Globe reports Colorado Senator Cory Gardner is crafting a bill that would prevent the federal government from interfering with states that have voted to legalize cannabis for recreational or medicinal purposes. The Senator is busy recruiting several co-sponsors for the bill, and he has received assurances from President Trump that he would sign such a bill into law.

This would be a step in the right direction and would alleviate concerns in many states that the Department of Justice, under new guidance from Attorney General Sessions, might enforce federal marijuana prohibition.

Unfortunately, as long as the Drug Enforcement Administration continues to classify cannabis as a Schedule 1 drug, quality clinical research on the potential medical applications of cannabis will remain significantly inhibited. By definition, a Schedule 1 drug has “no currently accepted medical treatment use.” Recent studies have shown that chronic pain patients have been able to reduce their opioid dosage and consumption by adding cannabis to their pain management regimen. A study of Medicare Part D patients from the University of Georgia published in JAMA earlier this month demonstrated this effect in states where medicinal marijuana has been legal. Another study published the same week from the University of Kentucky showed this effect was even greater in states where marijuana is legal for recreational use. And another recent study from the Minnesota Department of Health earlier this year found 63 percent of patients taking medical marijuana for their chronic pain were able to reduce or eliminate their opioid use within 6 months.

But this is old news. Studies from the University of Michigan in 2016 and from the University of California in 2017 also had similar findings. And researchers in Greece reported in 2012 that cannabidiol in marijuana “interferes with brain reward mechanisms responsible for the expression of the acute reinforcing properties of opioids” and might potentially be useful in medication-assisted treatment of opioid addiction. Researchers at Mt. Sinai School of Medicine point to this potential as well. 

While it is hoped that Senator Gardner succeeds in getting legislation to the President’s desk for his signature that would allow states to go their own way on the issue, it would be even better for Congress or the President to go a step further and put an end to the misguided and unjustifiable classification of cannabis as a Schedule 1 drug. In any event, one hopes this is the beginning of the end for marijuana prohibition. 

 

In a recent letter to the Trump administration, leading congressional Democrats ask the administration not to allow protections for enrollees in short-term health plans.

Yes, you read that right. Dated April 12, the letter comes from Sens. Patty Murray (WA) and Ron Wyden (OR), as well as Reps. Frank Pallone (NJ), Bobby Scott (VA), and Richard Neal (MA), each the top Democrat on a different congressional committee with jurisdiction over health care. They ask the administration to withdraw in its entirety a proposed rule that, if implemented, would offer significant protections to enrollees in so-called “short-term limited duration plans.”

The administration has proposed lengthening the maximum term for such plans from 3 months to 12 months, which had been the limit for nearly two decades before the Obama administration shortened it. The administration has also asked for public comments (due April 23) on whether it should allow insurers to offer short-term plans with “renewal guarantees”—a consumer protection that allows enrollees who develop expensive illnesses to continue paying low, healthy-person premiums.

The letter asks the administration to “withdraw the proposed rule in its entirety,” which would block those consumer protections. These Democrats literally want to prevent short-term plans from giving consumers the peace of mind from knowing they will be covered for an entire year. Worse, these Democrats want to prohibit short-term plans from offering a consumer protection that protects the sick from premium spikes. 

The reason for this animosity toward short-term plans is rather clear: ObamaCare supporters don’t want the competition. Federal law exempts “short-term limited duration plans” from ObamaCare and other federal health-insurance regulations. Short-term plans free consumers to purchase only the coverage they want, rather than have ObamaCare force them to buy coverage they don’t want, including coverage for things they may find morally repugnant. ObamaCare supporters do not want consumers to have that freedom, because when consumers leave ObamaCare coverage for short-term plans, ObamaCare premiums will reflect more and more of the cost of that law.

It is the height of irony for Democrats to call consumer-oriented short-term plans “junk plans” when ObamaCare is making coverage worse for the sick. One study found ObamaCare’s preexisting-conditions provisions penalize insurers $6,000 per opioid addict they enroll—so whichever health plan offers the best coverage pays the most penalties—and that ObamaCare is making coverage for opioid addiction and other ailments worse and worse as a result. At the same time, the law is causing premiums to rise so rapidly they double every few years. The only “junk” plans here are ObamaCare’s.

Expanding short-term health-insurance plans would give consumers the freedom to vote with their feet. Democrats don’t want consumers to have that freedom, because they know what the outcome of that vote will be. ObamaCare would continue to crumble, and Democrats would have to work with Republicans to replace it. The letter from Murray, Wyden, Pallone, Scott, and Neal provides all the more reason for the Trump administration to allow short-term plans to offer renewal guarantees.

The Chinese tech giant Alibaba recently invested $600 million in a start-up that specializes in facial and object recognition. Thanks to the investment the start-up, SenseTime, is now the world’s most valuable artificial intelligence start-up. Although such technology undoubtedly has potential when it comes to picking up your morning coffee and easing congestion at metro ticket lines, it has been making news in China because it is playing an increasingly prevalent role in that country’s growing surveillance state. While the Chinese are leaders in surveillance technology innovation, we should keep in mind that facial recognition in the U.S. also poses a unique and significant threat to privacy, and it’s a threat that is not being adequately addressed.

Facial recognition fits in the family tree of biometric investigatory technologies, which determine identity via analysis of unique biological and physical traits. Many are familiar to anyone who watches CSI shows or other fictional portrayals of law enforcement: fingerprint and DNA analysis are a couple of examples.

If law enforcement has access to your fingerprints it’s likely because you volunteered them as part of a job requirement, you’re an immigrant, they were recorded after you were arrested, or they were collected at a crime scene. About 40 percent of fingerprints in the FBI’s fingerprint database are not related to arrests or forensic investigations. The FBI’s DNA database only includes DNA related to criminal arrests or forensic investigations.

Unlike databases for fingerprints and DNA, one of the FBI’s facial recognition services allows agents to search through databases that mostly include information related to law-abiding Americans, with only 8 percent of the facial images in the network being associated with criminal or forensic investigations. This is in part thanks to the fact that the FBI has access to drivers license photos from at least 16 states as well as passport photos from the State Department. All told, this Facial Analysis Comparison and Evaluation services allows the FBI to access more than 411 million facial images. A Georgetown study on facial recognition estimates that about half of American adults can be found in a law enforcement facial recognition network.

This is especially concerning because facial recognition can be used to conduct surveillance. It’s already being used for the purpose in China, and here in the U.S. the law enforcement community seems poised to spread the use of facial recognition without sufficient limitations in place.

At the federal level, the Department of Homeland Security (DHS) has been especially keen to use facial recognition, where the technology is sought for small border drones and used to verify airport travelers’ identities. The use of facial recognition at airports is especially controversial because Congress never authorized DHS to collect and analyze American citizens’ facial images. Nevertheless, DHS is subjecting American citizens to face scanning at select airports across the country.  

While hardly ubiquitous among states and local law enforcement, facial recognition looks set to become a common feature of policing. Body cameras outfitted with real-time facial recognition capability are set for deployment this fall, and some police departments, such as the New York City Police Department, already use facial recognition tools to review surveillance footage. The Los Angeles Police Department also has a history of using facial recognition tools.

Police officers with real-time facial recognition capability will dramatically change law enforcement, especially if their facial recognition tools are linked to databases that are mostly made up of law-abiding Americans’ face images.

Even if facial recognition on police body cameras was only able to identify people with outstanding warrants there would still be issues. In 2015, the Department of Justice’s Civil Rights Division issued its report on the Ferguson, Missouri, police department. The report noted that police officers in Ferguson were regularly cracking down on minor infractions, putting many residents in dire financial straits.

Ferguson is hardly the only city city where warrants are issued for failing to pay fees. A 2014 NPR report on unpaid court fees and fines noted that many of New York City’s 1.2 million outstanding warrants were for unpaid court fines and fees. The same NPR article reported that in 2011 courts in Philadelphia sent bills to about one in five of the city’s residents.

Police pursuing these fees can lead to the worsening of police-community relations, as  shown by the following anecdote from the DOJ Ferguson report, which its authors state reflected the treatment many African Americans “have come to expect from Ferguson police.”

An African-American man recounted to us an experience he had while sitting at a bus stop near Canfield Drive. According to the man, an FPD patrol car abruptly pulled up in front of him. The officer inside, a patrol lieutenant, rolled down his window and addressed the man:

Lieutenant: Get over here.

Bus Patron: Me?

Lieutenant: Get the f*** over here. Yeah, you.

Bus Patron: Why? What did I do?

Lieutenant: Give me your ID.

Bus Patron: Why?

Lieutenant: Stop being a smart ass and give me your ID.

The lieutenant ran the man’s name for warrants. Finding none, he returned the ID and said, “get the hell out of my face.”

Had the police officer been wearing a body camera with real-time facial recognition capability he would perhaps have passed this man by, but other residents with outstanding warrants for minor infractions or small fines would have to fear a similarly unprofessional and confrontational encounter. It doesn’t take a great imagination to speculate about how disastrous real-time police body cameras would be for police-community relations in a city where a sizable portion of the population have outstanding fines or warrants for non-violent and non-property crimes.

Lawmakers could propose a policy of linking police body cameras with real-time facial recognition capability to databases that only include suspects wanted for violent or property crimes. However, this is a slippery slope that we should avoid altogether.

Such a policy would quickly become target for amendment. In the wake of a sex offense policymakers who backed this policy would eventually be asked, “Why didn’t the database include the sex offender registry?” In some jurisdictions lawmakers would face pressure to include vast and error-prone gang databases in real-time facial recognition networks. Once a facial recognition database is built there will be continued pressure from lawmakers law enforcement officials for more images to be added.

Facial recognition poses a unique threat to law-abiding American citizens, millions of whom are in facial recognition networks merely because they drive. Lawmakers can prevent increased risk of surveillance by forbidding real-time facial recognition on police body cameras. With such devices, police won’t need a “Papers, please” law to identify citizens going about their business; our faces will be our papers.

 

The Tax Policy Center (TPC) has released a new analysis of the Tax Cuts and Jobs Act passed in December. The analysis examines the distributional effects of the individual income tax changes separately from the corporate and estate tax changes. 

In the abstract of the new report, TPC suggests that high earners got the best deal. They say, “The individual income tax cuts as a percentage of after-tax income will be largest for high-income households.”

In the table, I have presented TPC’s new data for 2018 in a different way. The table shows the average impact for households within each income quintile, as well as the top 1 percent.

Columns 3 and 5 in the table show that lower- and middle-income groups received the largest relative individual income tax cuts from the GOP law. They received the largest percentage cuts in their taxes.

Let’s go through the columns …

Column 1 shows that higher-income groups received larger percentage point cuts in their average tax rates (taxes as a percent of income). This is one of the (problematic) measures that TPC presents in its report.

Column 2 shows TPC estimates for total prior law federal taxes as a percent of income. This includes individual income, corporate, payroll, excise, and estate taxes. By “prior law,” I mean taxes that people would have paid in 2018 without the GOP cuts.

Column 3 is column 1 divided by column 2. It is individual income tax cuts as a percent of total prior law taxes. The tax cuts are generally smaller for higher income groups. The top 1 percent received the smallest percentage tax cuts.

Column 4 shows TPC estimates of prior law individual income taxes as a percent of income. The bottom two quintiles are less than zero because, on net, those groups do not pay any income tax. Indeed, they receive refundable credits, or spending subsidies from the government.

Column 5 is column 1 divided by column 4. It is individual income tax cuts as a percent of prior law individual income taxes. In my view, this is the best and fairest measure of the tax cut’s distributional effect.

The bottom two quintiles are “n/a” because those folks, on net, do not pay any individual income taxes. Those two groups will receive larger refundable credits (subsidies) under the GOP law.

Looking at column 5, by far the largest percentage tax cuts go to the middle class. The middle quintile received a huge 31.6 percent income tax cut, which is three times the 10.6 percent cut received by the top quintile. The top 1 percent received a much smaller cut of 6 percent.

These results mean that the GOP’s individual income tax cuts made the income tax system more “progressive,” with higher earners paying a larger share of the overall burden. At the same time, households with lower incomes will receive larger spending subsidies (refundable credits) from the government. That was the wrong direction to go, but it is a reality that is still being underreported in the media.

In the long run, none of this may matter. The individual tax cuts are scheduled to expire after 2025, and lawmakers are running up such huge deficits that there will be pressure to let the tax changes lapse at that time.

Prior analyses of the distributional effects of the tax reform are here and here.

Agencies use informal guidance documents in lieu of formal regulation to clarify and interpret uncertainties in existing law and enforcement. While there are many legitimate reasons they might want to do that, such forms of subregulatory guidance or “stealth regulation” can also offer a tempting way to extend an agency’s power and authority into new areas, or ban private actions that hadn’t been banned before – all without going through the notice and comment process required by regulation, with its protections for regulated parties.

Fair? Lawful? The Department of Justice under Attorney General Jeff Sessions has lately sought to bring agency use of guidance documents under better control, and in particular end the use of documents that 1) are obsolete, 2) improperly use the process to circumvent the need for formal regulation, or 3) improperly go beyond what is provided for in existing legal authority. Shortly after I covered this issue in December, Sessions revoked 25 guidance documents on such grounds. Caleb Brown interviewed me about all this for a Cato Daily Podcast last week.

Earlier, I covered “rule by Dear Colleague Letter” (as Education Secretary Betsy DeVos has called it) in posts on the regulation of universities during the Obama and Trump eras. Scott Shackford at Reason points out that the rescission of an earlier DoJ guidance letter on overbearing local government use of fines and fees should be read not as blessing those practices as okay, but as reflecting the likelihood that the federal government lacks clear statutory or constitutional authority to intervene against them. (adapted from Overlawyered). 

In 1961, Julia Child published the first volume of Mastering the Art of French Cooking, which along with her show The French Chef introduced a culinarily parochial nation to the mysteries of boeuf bourguignon, coq au vin, and the rich duck liver known as foie gras (literally “fatty liver”). Child is celebrated for raising the standard of American cooking and enlarging the national palate. Yet according to the state of California, she is one of history’s greatest monsters.

As of 2012, California banned the sale of any product that “is the result of force feeding a bird for the purpose of enlarging the bird’s liver beyond normal size.” This rather clumsy description targeted foie gras. Animal rights activists have long derided the foodstuff on the theory that the traditional method of production is a moral abomination. In 2005 they succeeded in passing a law that, after a seven-year delay, banned not only force-feeding within the state, but also the sale of any such product produced elsewhere.

In defense of their delicacy, industry representatives challenged the ban. Lead by a Canadian nonprofit, they filed a petition asking the Supreme Court to hear their case. The Cato Institute has now joined the Reason Foundation to file an amicus brief encouraging the Court to take the case. The brief argues that Congress has established uniform standards for poultry products, consistent with federal authority to normalize the flow of interstate commerce, and that California isn’t entitled to override this congressional judgment.

Reasonable people may disagree as to the ethics of food production, and each of us is entitled to consume or eschew what we wish. What we aren’t entitled to do is impose our idiosyncratic ethics on others. Foie gras is a safe, wholesome ingredient—though it may go straight to your hips—consumed by millions around the world. Some disapprove of that, just as some disapprove of animal products altogether. Jello Biafra long ago warned that in Jerry Brown’s hippie utopia the suede-denim secret police would force your children to meditate in school. Even he didn’t foresee the possibility of mandatory veganism, yet that’s where we’re headed if this law is allowed to stand.

In sum, the high court should review Association des Eleveurs de Canards et d’Oies du Quebec v. Becerra because sometimes state power simply isn’t all it’s quacked up to be.

Will global warming of a couple of tenths of a degree Celsius bring about certain disaster? That’s what a widely circulated report by Marlow Hood of the French Associated Press suggests about the horrors to come if global warming exceeds 1.5°C.

But this is one of those cases where the prescription is worse than the disease.

According to the Climate Research Unit at the University of East Anglia, we’ve already warmed about 0.9° since 1900, although temperatures have been remarkably flat in the first 14 years of this century. A bit less than half of the total warming probably had nothing to do with the combustion of fossil fuels, as it began in 1910, when the increase in atmospheric carbon dioxide was tiny.

Global temperatures are a mere 0.6° away from the dreaded 1.5° threshold. Yet there are reasons to question the concerns voiced in the AFP report; does one seriously believe that if you tack on another 0.6°, all that prosperity, wealth, and health that was accrued since 1900 starts to melt away?

Since then, vibrant economies grew like topsy. Per capita wealth in the U.S. increased by more than a factor of ten, and life expectancy nearly doubled.

Despite the fact that cities naturally warm from the bricks, buildings and pavement retaining heat, and also warm slightly from carbon dioxide increases, heat-related deaths are in decline because people adapt to frequent and repetitive events. And global warming preferentially heats the coldest airmasses, not the hottest ones. It’s noteworthy that winter cold kills 20 times more people than summer heat. 

And in spite of rising temperatures, there has been economic development throughout Asia and South Asia in recent decades, with China’s average GDP growth exceeding eight per cent since 2000. In sub-Saharan Africa there have been rapid increases in life expectancy, between 20 to 42% since 2000. It’s unlikely that temperatures 0.6 degrees higher will dramatically reverse that.

Yet the AFP article points to research which says that, despite huge gains in global per capita GDP to date, it will fall globally by 13% if the world meets the 2° ceiling. According to the World Bank, global GDP is currently growing at an impressive 3.7% per year, despite climate change.

The research cited by the AFP is flawed at its core, because it assumes that all the warming since 1900 has been caused by human activity. If the spurt that began in 1910 (and ended in 1945) indeed was due to us, then the atmosphere would be so sensitive to changes in carbon dioxide that it would be hotter than blazes right now.

Global temperatures did spike in 2016, but that was thanks to a big El Niño event, a periodic fluctuation of the tropical Pacific Ocean that releases a lot of heat into the atmosphere. Both satellite-sensed and surface-measured temperatures have since fallen back near to what they were at the end of the 14-year “pause” in warming, prior to the El Niño. Both records show net warming to be about half of what was forecast to be occurring by this time.

The 1.5° goal turns out to be very expensive compared to the two degree limit. Recently Joeri Rogelj of the International Institute for Applied Systems Analysis in Vienna calculated in his econometric model that the cost of limiting warming to the IPCC’s 1.5°C is three times the cost for two degrees Celsius.

And that doesn’t even consider the illogic that literally a few tenths of a degree of additional warming will somehow turn the world around from its prosperous trajectory of the past 120 years.

This week’s report, by Elizabeth Thomas and colleagues from the British Antarctic Survey, that snowfall has been increasing in Antarctica is hardly surprising. What is different that it is much more comprehensive than previous studies, which were largely limited by a virtual lack of pre-1957 data. That was the “International Geophysical Year”, in which systematic observations of Antarctica’s climate began.

The new study looks at the last 200 years of snowfall trapped in 79 ice cores taken from around the continent. It supplements other recent findings that also made headlines.

Determining Antarctica’s overall ice balance has been, well, slippery. One favored method has been to look at gravitational data measured by satellite. Thicker ice means more mass, which means greater gravity. These studies usually come up with a net loss, translating to from 6/1000 of an inch of sea level rise per year to 12/1000 (both values being rather small beer). But different measurements show otherwise. Three years ago, Jay Zwally and his colleagues at NASA used satellite-based altimetry and concluded Antarctica was undergoing a net gain in ice.

Common sense dictates that it should be snowing more in Antarctica. Think of it as Buffalo on steroids when it comes to snow. In the fall, when Lake Erie isn’t frozen, cold air passing over it from the west picks up evaporated moisture and dumps it on the land in the form of snow squalls. The warmer the water and/or the colder the air is, the more is snows. Unlike a mere Great Lake, Antarctica is surrounded by a largely unfrozen ocean, and when any atmospheric disturbance sends moisture onshore, it snows too.

Around Antarctica, there’s been a slight—meaning a couple of tenths of a degree—warming of the surrounding ocean, which means that the air blowing over it picks up a bit more moisture than it used to. Unlike Lake Erie, the Southern Ocean is huge, and any atmospheric disturbance that shoves more oceanic air up onto the continent is going to be pushing a substantial stream inland with ever more moisture, even for a very slight ocean temperature rise.

The “surface mass balance” of a glacier or an ice sheet is the difference between accumulated snowfall and what either melts or evaporates. In anticipation of increased snowfall, the last (2013) scientific summary by the United Nations’ Intertgovernmental Panel on Climate Change shows that the projected 21st change in the Antarctic mass balance to be weakly positive. That’s why it’s perplexing that the new finding is so newsworthy.

But now we know that the snow has been increasing down there for the past 200 years…and that the increase started before the major emissions of atmospheric carbon dioxide.

The House of Representatives are set to debate and vote on introducing a Balanced Budget Amendment to the Constitution of the United States. Such a move is almost certain to fail, as it requires a super-majority in both chambers of Congress, and three-quarters of the states—38 out of 50—would need to ratify it. Coming hot on the heels of the recent spending-cap busting omnibus bill, it’s difficult not to see this as a form of Republican fiscal virtue-signalling.

As I wrote in my recent paper on fiscal rules, the best way to build support for fiscal conservatism is to deliver it. That means constructing an argument about the supply and demand for government, getting public and political buy-in for a new fiscally responsible budgeting framework, and taking the necessary steps to get to a stage where the budget is balanced, ideally though spending cuts. Neither party has shown an appetite for this so far – in fact, quite the opposite.

Rule design is an incredibly important part of acceptance, and then adherence to a rule, too, though: critics and economists have a point about some of the downsides of a pure year-on-year BBA (as proposed). Evidence from around the world suggests rules that are too inflexible to changing circumstances and recessions prove less durable.

The specific proposed bill would require budget balance every year unless three-fifths of Congress overall voted for an exception. This would be both too stringent and too lenient at the same time: creating difficult within-year budgeting conditions when outcomes deviated from plans, but also giving Congress carte blanche to abandon fiscal probity during “emergencies”. Rather than this rigid form of rule, Congress would be better served examining countries such as Switzerland, which insists on year-on-year “structural” balance, equating to absolute balance over time, and which compensates for deviations from plans and emergency spending by adjusting spending caps in future.

There’s another issue with the rule though, and one where libertarians will be divided. It tries not only to ensure balanced budgets, but also to cap the overall size of the federal government at 20 percent of GDP. This relates to a fear that conservatives such as Paul Ryan have had in the past about BBAs (he voted against one in 2011). Then he said:

My specific concern was that under this bill, a future Congress could raise spending levels without any limits and then raise taxes without any limits to meet the increased spending levels.  The result would still be a balanced budget, but without any caps on spending or taxes.  In the end, this proposal would allow Congress to continue to chase ever higher spending levels with ever higher tax rates.  Consequently, for these reasons, I could not support this Amendment.  I do; however, support a balanced budget amendment that would keep spending and tax rates in line with their historical averages.  If this version of the amendment is brought to the House floor, it would have my support.

Now all libertarians would agree with Ryan that keeping government small is desirable. And as Milton Friedman explained, it’s government spending that is the real tax burden on the private economy, so it’s spending that is what we want to reduce. The question really is then whether a pure BBA will help or hinder this goal?

Ryan’s view, shared by some of my colleagues, is that a BBA neutral between taxes and spending would make the case for tax increases easier to make. Politicians could say “we have to balance the budget, and so we must raise taxes to protect spending.”

My view is that using a BBA to try to achieve two objectives – balancing the books and determining the size of government – means there will never be a consensus for one to be introduced and endure. Democrats wouldn’t tolerate it. And that loses some key benefits of having one as a tool to encourage spending restraint.

Politicians have complete freedom to raise taxes now. They don’t. Why? One reason is surely that deficit-financed spending creates a fiscal illusion. People do not feel the effects of higher spending being linked to their pay checks or spending power. A BBA would make this link between taxes and spending explicit over time, eliminating the expectation of a free lunch. Just as in the UK when the public took deficit reduction seriously, the constant question politicians would be asked when they proposed higher spending would be “how are you going to pay for this?”

The strategy of “starving the beast” by cutting taxes first has seemingly had no discernible effect on curbing this spending, given it can be financed by borrowing. It seems highly likely that if spending and taxes tracked each other, that support for spending would be more likely to fall than rise.

Importantly, a Swiss-style debt brake would not allow Congress to raise spending without any limits and then raise taxes later. But it wouldn’t determine what the size of government should be – allowing governments to raise taxes first to facilitate higher spending. In other words, it would encourage honest and transparent budgeting.

Those who believe in smaller government should have the courage of their convictions in saying “if you want low taxes, then we need spending restraint.” Yes, there’s a risk of the opposite equilibrium developing – but right now that risk exists too as the recent spending bill showed, and there are many other downsides associated with continuing to sail into the debt abyss.

On April 11 the Washington Post cited a new study from the American Action Forum that reinforces arguments I have made here and here, that despite a dramatic reduction in the opioid prescription rate—a 41 percent reduction in high-dose opioid prescriptions since prescriptions peaked in 2010—the overdose rate continues to climb, as nonmedical users have simply migrated to more dangerous substitutes like fentanyl and heroin while the supply of diverted prescription opioids suitable for abuse continues to come down.

I have a minor quibble with the study’s finding that “the annual growth rate of prescription opioid-involved overdose fatalities significantly slowed from 13.4 percent before 2010 to just 4.8 percent after.” In fact, the Center for Disease Control and Prevention end-of-2017 Data Brief No. 294 reported:

The rate of drug overdose deaths involving natural and semisynthetic opioids, which include drugs such as oxycodone and hydrocodone, increased from 1.0 [per 100,000] in 1999 to 4.4 in 2016. The rated increased on average by 13% per year from 1999-2009 and by 3% per year from 2009-2016. (Emphasis added)

As an aside, it is worth mentioning that four researchers working in the CDC’s Division of Unintentional Injury Prevention reported in the April 2018 American Journal of Public Health that the CDC’s method for tracking opioid overdose deaths have over-estimated the number due to prescription opioids, calling the rate “significantly inflated.” Many overdose deaths actually due to fentanyl are folded into the “prescription opioid” numbers since, technically, fentanyl is a prescription drug even though it is rarely prescribed outside of the hospital in a form suitable for abuse. 

The AAF report understates the significant role that the abuse-deterrent reformulation of OxyContin and other opioids have played in driving nonmedical users to heroin and fentanyl. The researchers “suggest” abuse-deterrent formulations “could be a major factor driving the rise in heroin fatalities.” But evidence of the connection is much more powerful and convincing, as I presented in the Cato Policy Analysis “Abuse-Deterrent Opioids and the Law of Unintended Consequences” in February of this year.

The Washington Post says Ben Gitis, the lead investigator, stated that “many people became dependent on prescription opioids, and when the narcotics became difficult to obtain, people turned to whatever alternative they could find. The cartels saw that market and filled it rapidly.” He suggests in his study that overprescribing by doctors in the late 1990s and early part of this century was the driving force behind opioid abuse and addiction. This is another area where I have to disagree.

While there were undoubtedly unscrupulous doctors operating “pill mills,” some doctors who prescribed opioids too liberally with the best of intentions, and dishonest and overzealous pharmaceutical sales reps falsely representing the safety of their product, these factors were exceptions to the rule, and peripheral rather than central to the opioid overdose problem. 

It must be remembered that numerous studies throughout the 1970s, 1980s, and 1990s documented that patients were being undertreated for pain because of an irrational fear of opioids. In 1989, Charles Schuster, the Director of the National Institute on Drug Abuse, stated. “We have endowed these drugs with the mysterious power to enslave that has been overrated.” The “opiophobia” of the time gradually—and correctly—gave way to a more rational and humane approach to patients in pain. Furthermore, numerous studies, including Cochrane systematic analyses in 2010 and 2012, as well as a report this past January in BMJ by researchers at Harvard and Johns Hopkins show that opioids have an addiction rate of roughly 1 percent or less in the medical setting. And Dr. Nora Volkow, the current Director of NIDA, in a 2016 New England Journal of Medicine article, stated, “addiction occurs in only a small percentage of persons who are exposed to opioids — even among those with preexisting vulnerabilities.”

The National Survey on Drug Use and Health repeatedly finds that less than 25 percent of nonmedical users of prescription opioids obtain them from a doctor. Three-quarters obtain them from a friend, family member, or dealer. The NSDUH also found that nonmedical use of prescription opioids peaked in 2012, and total (medical and nonmedical) opioid use in 2014 was less than in 2012.

Studies repeatedly show upwards of 90 percent of opioid overdose victims have multiple drugs on board. In New York City in 2016, 75 percent of opioid overdoses were from heroin or fentanyl, and 97 percent also were found to have multiple drugs in their system at the time—46 percent of the time it was cocaine. And a November 2017 study from Washington University found 33.3 percent of heroin users entering rehab in 2015 stated that their gateway drug was heroin—as opposed to 8.7 percent in 2005. These numbers do not describe the profiles of patients victimized by doctors who were too liberal in their prescription of opioids. These are nonmedical users seeking drugs in the illicit and dangerous market that results from drug prohibition. 

And the problem is not confined to the US. In the European Union, where doctors historically have been “stingy” in prescribing opioids, expecting stoicism from their patients (and where it is much harder to “doctor shop”) there is an opioid crisis as well.  EU overdose rates have increased for the last three consecutive years for which data have been collected. It seems to be worse in the UK, Spain, and Sweden. And the distribution of drugs follows the same pattern as in the US: predominantly heroin and fentanyl. The same is happening in Australia.

Overdose deaths from methamphetamine and other stimulants have also been surging in recent years and now are at record levels. And recent reports from New England point to a surge in deaths from fentanyl-laced cocaine, the latest version of the “speedball.”

The reasons behind the rise in the illicit use and abuse of mind-altering drugs in the developed world is a subject worthy of serious investigation. The causes are most likely multifactorial. But policymakers need to disabuse themselves of the notion that the prescription of opioids to patients by doctors is at the heart of the problem. That notion has made too many patients suffer needlessly as the old “opiophobia” of the 1970s and 1980s has returned. 

The American Action Forum study provides yet another reason for our policymakers to end their focus on the supply-side. If they lack the political will to re-examine drug prohibition, they should at least put the focus on harm reduction programs, such as needle exchange and supervised injection facilities, medication-assisted treatment for addiction, and making naloxone available over-the-counter.

A US attack on Syria is imminent, but don’t expect a congressional debate on whether it’s wise or lawful, the Wall Street Journal reported this morning. “I think for a surgical strike, they easily have the authority to do it,” says Senate Foreign Relations Committee chairman Bob Corker. 

That’s the same Senator Corker who, not long ago publicly agonized that President Trump’s “volatility” and recklessness could put America “on the path to World War III.” One wonders what he could have had in mind if not something like this

Russia vows to shoot down any and all missiles fired at Syria. Get ready Russia, because they will be coming, nice and new and “smart!” You shouldn’t be partners with a Gas Killing Animal who kills his people and enjoys it!

— Donald J. Trump (@realDonaldTrump) April 11, 2018

Might I suggest that taunting and threatening a nuclear-armed rival is far more disquieting than insulting Mika Brzezinski, tweeting out CNN/Wrestlemania mashup videos, or whatever else usually provokes cries of “not normal” from official Washington? This particular tweetstorm will likely be followed by a barrage of Tomahawk missiles and the risk of a wider war. Maybe Corker and his colleagues should show some concern about it and do something—like their jobs.

Corker’s claim that the president “easily [has] the authority” to launch airstrikes is nonsense. In the absence of an imminent threat, the Constitution denies the president the power to initiate war. That this is supposed to be a “surgical” attack is a distinction that doesn’t make a constitutional difference. No prominent figure in the Founding Generation thought the president had the right, absent authorization from Congress, to engage in “limited” war. Washington even doubted his authority to take unilateral action against hostile Indian tribes, writing that “The Constitution vests the power of declaring war with Congress; therefore no offensive expedition of importance can be undertaken until after they shall have deliberated upon the subject, and authorized such a measure.”

In this case, Congress hasn’t authorized an attack against the Assad regime. The 2001 AUMF—already stretched beyond credulity to underwrite the war against ISIS—can’t be made to fit what Trump plans. 

Trump has no legal authority to order the strike; what’s more, his administration insists that we have no legal right to hear the reasons he thinks he can. Last year, DOJ’s Office of Legal Counsel drafted a legal memorandum justifying Trump’s drive-by Tomahawk attack on a Syrian airfield in April 2017. The administration is currently fighting in federal court to prohibit the release of that memo, in a Freedom of Information Act lawsuit filed by the the Protect Democracy Project. As Protect Democracy noted in a filing Monday, “the withheld documents are serving as the working law that embodies [the administration’s view of] the governing legal authority for the use of military force.” As the administration contemplates ordering military action in Syria—and elsewhere—aren’t the American people entitled to know what limits, if any, it acknowledges on its authority to wage war? Apparently, not: that’s on a need-to-know basis, and we don’t need to know.

In 1793, James Madison wrote that “In no part of the constitution is more wisdom to be found than in the clause which confides the question of war or peace to the legislature, and not to the executive department.” Were it otherwise, he explained, “the trust and the temptation would be too great for any one man.” Human nature’s “most dangerous weaknesses… ambition, avarice, vanity, the honorable or venial love of fame” all conspire against “the desire and duty of peace.” When he issued that warning, Washington was president—a man with a storied record of resisting such temptations. Today… well, it seems clear that advances in destructive power and the concurrent degeneration of presidential character have made Madison’s warning even more vital.

And yet, “this town” doesn’t seem especially concerned about Trump’s deranged and lawless threat. A few hours after the tweet, Twitter trends for Washington D.C. showed it registering behind Paul Ryan’s retirement, #NationalPetDay, and Mariah Carey’s “battle with bipolar disorder.” 

 

The gulf between our first president and our 45th is pretty vast; but our downward spiral seems to have picked up speed in recent decades. I’m old enough to remember when people considered Barack Obama reckless for blurting out his Syrian “red line” at a press conference, wrung their hands over George W. Bush’s “cowboy” rhetoric, and feared that Dan Quayle was too dumb to trust “a heartbeat away” from the presidency. 

In the space of a week, President Trump has whipsawed from demanding an immediate withdrawal from Syria to warning about the “Big price” Assad and Putin are about to pay. The rest of us are left wondering what prompted the reversal: could Trump’s legal difficulties have played a part, or was it just something he saw on TV? Either way, according to Senator Corker—and most of official Washington—waging war is Trump’s call. At this point, what could possibly convince them that’s too big a risk to take?

A chemical weapons attack allegedly carried out by Syrian government forces against the rebel-controlled city of Douma has prompted the Trump administration to consider military strikes against the Assad regime. The United States will likely follow through with military retaliation given last year’s U.S. missile strike against a Syrian air base following a similarly large chemical weapons attack. Since the last U.S. attack clearly failed to deter Syria from using chemical weapons, the Trump administration faces pressure to inflict greater pain on the Assad regime this time around. However, a stronger U.S. military response—or any military action for that matter—carries more risks than rewards.

The argument supporting U.S. military action is more or less the same as the argument made in 2017: the United States must punish the Assad regime in order to deter any future use of chemical weapons by the regime. However, Washington seriously overestimates its ability to influence or change Damascus’s behavior.

In theory, deterring the future use of chemical weapons requires the United States to make the costs of using these weapons unacceptably high. Over the course of the civil war, the Syrian government has repeatedly demonstrated the ability to absorb a great deal of military and economic costs. A military strike against Syrian air bases or chemical weapon sites may cause some temporary slowdown in the regime’s operations but it will neither end the civil war nor prevent the regime from using chemical weapons in the future. Moreover, Russian and, to a lesser extent, Iranian support for the Syrian government will help insulate Syria from the costs of U.S. military action.

Using military force to prevent future chemical weapons attacks would require much more than a limited attack. Short of deposing Assad, which Russia and Iran would try hard to prevent, the United States would have to carry out sustained attacks against air bases, command and control assets, and chemical weapons sites to degrade the regime’s ability to conduct future chemical weapons attacks. This would be a major escalation of the U.S. military role in Syria, which is at odds with President Trump’s desire to reduce America’s involvement in the country. There is also no guarantee that Assad and his allies would be cowed by a U.S. escalation. If Syria responds with more chemical weapons attacks or some other form of counter-escalation the United States would have to decide to up the ante or back down.

Another risk of a larger U.S. military response is the increased likelihood of inadvertent escalation with Russia. A sustained U.S. military pressure campaign that lasts long enough to significantly degrades the Assad regime’s chemical weapon capabilities would necessarily increase the probability of American and Russian forces making contact with one another.

Figuring out what limited military attack can deter Assad from using chemical weapons without risking a broader escalation of the U.S. role in Syria—what my colleague John Glaser called the “Goldilocks military option”—is a practically impossible needle for the Trump administration to thread. A strike that minimizes escalation risks will be too small to change Assad’s calculus about chemical weapons and a larger attack risks escalating a conflict that the United States has no great interest in fighting. The Trump administration must come to terms with the limitations of U.S. military power. 

In a surprising move, former House speaker John Boehner has joined the board of directors of Acreage Holdings, a multi-state company focused on growing and selling marijuana. Boehner was a long-time opponent to marijuana legalization but is quoted in the Washington Post as saying:

I have concluded descheduling [marijuana] is needed so that we can do research and allow [the Department of Veterans Affairs] to offer it as a treatment option in the fight against the opioid epidemic that is ravaging our communities.

The Post article goes on to note that:

Descheduling cannabis would not legalize it nationally, but it would end federal marijuana enforcement and allow states to set their own marijuana policies without federal interference.

It remains to be seen whether Boehner’s reversal on marijuana legalization is indicative of a larger trend, but at a minimum it is a step in the right direction.

The Parkland shooting, even almost two months later, remains a very painful topic, and there seem to have been many very important factors at play. One that hasn’t been discussed very much, but probably needs to be examined, is whether the kind of schools students attend makes a difference. At least one author, Stella Morabito at The Federalist, has discussed this, and has identified many problems that she thinks are associated with public schools ranging from their large sizes to their seeming hostility to Christianity.

All of the problems she discusses may be factors—school size has been suspect for a long time—but as a starting point we ought to look at the numbers.

Hyewon Kim—a Cato Center for Educational Freedom Intern—compiled information on school shootings in the United States from 2000 to 2018 using the Tribune-Review database. The database is limited to legitimate school shootings; that is, shootings that occurred on or near a K-12 school campus while classes were in session or when students were present. The list also excluded suicide-only incidents.

Hyewon found 134 school shootings from 2000 to 2018. Only eight of these occurred in private schools while 122 occurred in public schools. The type of school could not be definitively classified for 4 of the shootings. As shown in the figure below, about 94 percent of the shootings that could be classified occurred in public schools while only about 6 percent occurred in private schools.

 

Since there are many more public schools than private schools, we must consider that difference. The most recent data from the National Center for Education Statistics show that around 25 percent of U.S. K-12 schools are private, while about 10 percent of schooled children attend private schools. In other words, the data suggest that children that go to private schools are disproportionately less likely to experience a school shooting than children in public schools.

Of course, considering the difference in the number of students across the two sectors does not account for differences in the types of students. After all, at least some of the divergence in school shootings found are likely due to other factors such as household income and parent education levels.

However, a recent study by Danish Shakeel and me, presented at the International School Choice and Reform Conference, finds that private schools experience better school culture than public schools even after controlling for several characteristics such as school size, location, racial composition of students and teachers, and the percent of students from low-income families. We find that private schools are significantly less likely than public schools to experience problems such as student fighting, bullying, and, perhaps most importantly, weapon possession.

Anytime you write about a tragedy and point to your favorite policy reform as the solution, it can seem opportunistic and, frankly, a little callous. But it is not groundless to think that school type could matter, and nothing should be off-limits for discussion to end these sorts of tragedies.

Vanessa Brown Calder and I examined the Low-Income Housing Tax Credit (LIHTC) in a November study. The LIHTC is a $9 billion federal program that is supposed to increase the supply of apartment units for people with moderate incomes.

We found that the LIHTC imposes high administrative burdens, generates local government corruption, inflates construction costs, and crowds out market-based housing supply.

The Heritage Foundation recently published its analysis of the LIHTC, and scholars Adam Michel, Norbert Michel, and John Ligon come to similar conclusions.

They find:

  • “The LIHTC is a complex program that has spawned a cottage industry of lawyers and accountants.”
  • “The value of the LIHTC is largely captured by investors and intermediaries, not renters.”
  • “The LIHTC is a costly and inefficient corporate welfare program that has failed to boost the U.S. housing stock.”
  • “Since its inception as part of the 1986 tax reform, the LIHTC has proven ineffective and inefficient.”

The authors conclude that “it is time to repeal the LIHTC and focus on reducing artificial barriers to new housing supply.”

Vanessa examined those artificial barriers in a 2017 Cato study. She argued that state and local governments can tackle housing affordability by cutting the thicket of land-use and zoning regulations that restrict housing supply.

The Heritage scholars concur:

The LIHTC and other housing subsidies are largely treating the symptom of high housing costs, rather than the cause of overly restrictive land-use regulations. Reforms to make it easier to privately build and finance new and expanded housing developments of any type would go a long way toward relieving the current upward pressure on rent in America’s cities.

The LIHTC is a failed federal response to a problem caused—or at least exacerbated—by state and local policies. As Congress considers legislation to adjust some of the provisions in its recent tax reform law, it should put the housing tax credit on the chopping block.

President Trump delivered a disturbing tweet this morning regarding a U.S. military strike in Syria, which is reportedly impending:

Russia vows to shoot down any and all missiles fired at Syria. Get ready Russia, because they will be coming, nice and new and “smart!” You shouldn’t be partners with a Gas Killing Animal who kills his people and enjoys it!

— Donald J. Trump (@realDonaldTrump) April 11, 2018

This amounts to an embrace of Russia’s challenge and it risks a significant escalation of the U.S. role in Syria. It is a profoundly dangerous example of brinkmanship. Americans are now supposed to ready themselves for a military clash with a nuclear power over a U.S. military strike against the Assad regime that has no legitimate justification.

First, any U.S. strike against Syria will be illegal unless it first receives explicit authorization from Congress. As was the case with Trump’s previous missile strike against the Assad regime last April, he will be acting unlawfully if he takes this action.

Second, what does the administration expect to accomplish here? No U.S. military action short of all-out regime change is going to deter the Assad government from committing future atrocities. The strike in April 2017 had zero strategic or tactical utility. It did nothing to resolve the Syrian civil war. It did not serve U.S. national interests in any tangible way. Nor did it serve any humanitarian objective. The Assad regime has continued to use violence against its own people. 

Third, it strains common sense that we would take an illegal military action with virtually no chance of success and with high risks of escalation because roughly 40 people were killed by chlorine in a civil war that has killed 500,000 people by bullets and bombs. Chemical weapons occupy a special place in our minds as a particularly cruel form of violence, but there is nothing special about them, except perhaps that they are less lethal than the conventional military means by which most Syrians have been killed or maimed in this war.

Reports indicate that the Trump administration is trying to find a Goldilocks military option that would be more damaging than the pin-prick punitive strike last April, but not big enough to entangle the United States in another Middle East quagmire by toppling the Assad government or clashing directly with Russian or Iranian forces in a way that triggers escalatory measures. This is a farcical exercise that ignores the utter lack of strategic, tactical, legal, or humanitarian rationale for military action.

Just days prior to news of this recent chemical weapons attack in Syria, President Trump articulated his desire to withdraw U.S. forces from the country. His instincts were correct

Today, the Cato Institute is launching a new online initiative: Checkpoint: America–Monitoring the Constitution-Free Zone.

For over 60 years, the executive branch has, through regulatory fiat, imposed a “border zone” that extends as much as 100 miles into the United States. Within this area–which, according to the ACLU, encompasses two-thirds of the U.S. population–are a series of Soviet-style internal checkpoints run by the Department of Homeland Security’s Customs and Border Protecton (CBP) service. The majority of these stretch across the southwestern United States from southern Calfornia to the Texas Gulf Coast. As outlined below, CBP agents operating these checkpoints routinely violate the constitutional rights of citizens and other who are forced to pass through them to get to work, go to the store, or make it to a vacation destination in the American Southwest.

Because these checkpoints can be either fixed or mobile, research for this project involved the use of multiple data sources to help provide precise geolocational data and detailed physical descriptions of a given fixed checkpoint, or, where captured on overhead imagery, a temporary checkpoint. In particular, prior reports by the Government Accountability Office (2009 and 2017), as well as Google Earth and the Streetview functionality in Google Maps, were critical in helping pinpoint existing checkpoints and making possible relatively precise physical descriptions of the facilities and equipment present at each. The ACLU, including it’s Arizona chapter, also provided valuable data.

The need for this project, and for greater scrutiny of these checkpoints, is more pressing than ever.

A 1976 Supreme Court decision, U.S. v. Martinez-Fuerte, provides the primary legal justification for CBP’s operation of these checkpoints. Because of the sweeping nature of the decision and its ongoing impact, it’s worth looking at some of the key particulars of the Court’s ruling.

The case, which centered on three separate incidents involving the illicit transportation of Mexican nationals into the United States, examined the question of whether the use of such checkpoints for warrantless seizures and visual inspection (i.e., searches) violated the Fourth Amendment.

Writing for the Court’s majority, Justice Powell asserted that given the huge problem of illegal immigration and CBP’s responsibility to prevent it, under “the circumstances of these checkpoint stops, which do not involve searches, the Government or public interest in making such stops outweighs the constitutionally protected interest of the private citizen…In summary, we hold that stops for brief questioning routinely conducted at permanent checkpoints are consistent with the Fourth Amendment and need not be authorized by warrant.”

The majority’s reasoning seemed to be that adhering to the Constitution’s traditional probable cause standard was too onerous on CBP in its efforts to stem illegal immigration.

Justices Brennan and Marshall dissented forcefully, with Brennan arguing: 

The Court assumes, and I certainly agree, that persons stopped at fixed checkpoints, whether or not referred to a secondary detention area, are “seized” within the meaning of the Fourth Amendment. Moreover, since the vehicle and its occupants are subjected to a “visual inspection,” the intrusion clearly exceeds mere physical restraint, for officers are able to see more in a stopped vehicle than in vehicles traveling at normal speeds down the highway. As the Court concedes…the checkpoint stop involves essentially the same intrusions as a roving-patrol stop, yet the Court provides no principled basis for distinguishing checkpoint stops.

And there was something even more fundamentally troubling about the majority’s opinion: it was arguably racist in character, and would likely lead to racial/ethnic profiling going forward. Quoting Brennan again:

Every American citizen of Mexican ancestry and every Mexican alien lawfully in this country must know after today’s decision that he travels the fixed checkpoint highways at the risk of being subjected not only to a stop, but also to detention and interrogation, both prolonged and to an extent far more than for non-Mexican appearing motorists. To be singled out for referral and to be detained and interrogated must be upsetting to any motorist. One wonders what actual experience supports my Brethren’s conclusion that referrals “should not be frightening or offensive because of their public and relatively routine nature.”…In point of fact, referrals, viewed in context, are not relatively routine; thousands are otherwise permitted to pass. But for the arbitrarily selected motorists who must suffer the delay and humiliation of detention and interrogation, the experience can obviously be upsetting. And that experience is particularly vexing for the motorist of Mexican ancestry who is selectively referred, knowing that the officers’ target is the Mexican alien. That deep resentment will be stirred by a sense of unfair discrimination is not difficult to foresee.

Indeed, one need not actually be a Mexican or have Mexican ancestry to be victimized at one of these checkpoints. Just being dark-skinned and having an accent was enough for Armenian-American immigrant Greg Rosenberg to be stopped, roughed up, and detained without charge for 19 days after an encounter with CBP agents at the Laredo, Texas checkpoint in 2014. Through 2015, at least 35 people have been shot and killed by CBP agents, according to data compiled by the ACLU and CBP’ own internal data. To date, no agents involved in these use-of-force incidents has been fired.

For too many American immigrants or legal permanent residents living in or just passing through the southwestern United States, Justice Brennan’s fears of these checkpoints becoming racial profiling and civil liberties violation stations long ago became a reality.

The checkpoints are also largely ineffective in performing their stated task: catching illegal border crossers.

As the 2017 GAO report referenced above notes (p. 38):

CBP reported in the budget justification that apprehensions at checkpoints ranged from 1.34 to 2.52 percent of nationwide apprehensions across fiscal years 2013 through 2016.

The 2009 GAO report, also referenced above, noted (p. 5) that approximately 4% of deployed CBP agents were deployed at these internal checkpoints. Thus, a significant portion of CBP agents are tied to checkpoints that account for a miniscule portion of apprehensions of persons not legally authorized to be in the United States.

Additionally, as GAO found in their latest work (2017, p.50), many of the residents living in the southwest border region believe CBP’s available manpower should be deployed along the border itself:

For example, members of one community group we interviewed said that there are hundreds of illegal crossers and smugglers who attempt to circumvent the local checkpoint by walking through the surrounding ranches. Echoing views from ranchers we interviewed for a December 2012 report, 56 members of one community group we spoke with as part of this review said that they would like to see Border Patrol direct more enforcement efforts at the immediate border to prevent illegal crossers from entering their communities or properties. Officials we interviewed from two sheriffs’ departments in nearby counties said they have heard similar views from residents.

Instead, CBP insists on keeping checkpoints well away from the border, operating them primarily as generalized crime control stations that disproportionately target American citizens. Indeed, as the 2017 GAO report notes (p. 45):

In addition to analyzing where apprehensions and seizures occurred, we analyzed marijuana seizure data to determine how seizures that occurred at checkpoints compared to those that occurred at other locations…out of the 30,449 seizures that occurred at checkpoints, at least 12,214 (40 percent) were 1 ounce or less of marijuana seized from U.S. citizens. In contrast, seizures occurring at non-checkpoint locations were more often higher-quantities seized from aliens. For example, more than three-quarters of marijuana seizures at non-checkpoint locations were of over 50 pounds (25,792 out of 33,477 seizures).

Thus, in addition to failing at their primary mission of curtailing illegal border crossings, CBP personnel manning these stations are running largely useless “weed dime-bag checkpoints” that only help to perpetuate the failed War on Drugs.

Beginning in 2014, CBP officials in Arizona reacted with threats and intimidation as a group of citizens in the town of Arivaca attempted to monitor the local CBP checkpoint for potential rights violations. In response, the citizens sued the CBP for the right to record or otherwise monitor CBP activities at the checkpoint. A lower court tossed the case in 2016, but the Arivaca residents appealed and in February 2018, the Ninth Circuit Court of Appeals reinstated the case, which has been remanded to the U.S. District Court in Tuscon.

The fact that CBP agents are attempting to prevent American citizens from monitoring checkpoint activities only underscores why the efforts of the people of Arivaca, as well as this new Cato project, are so important in the ongoing effort to prevent and expose misconduct and constitutional rights violations by CBP personnel. It is also hoped that this project will help spur a long overdue discussion about the very rationale behind these checkpoints.

Ironically, in his search for additional manpower to police the southern border, President Trump has turned to America’s military–a move my Cato colleague Alex Nowrasteh has correctly characterized as unnecessary and dangerous.

It is also a less effective measure–fiscally and legally–than disestablishing useless CBP fixed checkpoints and redeploying the hundreds of CBP agents currently manning them down to the southern border. Unlike American troops, CBP agents are law enforcement officers, capable of making arrests and processing illegal border crossers through America’s established deportation process. Redistributing exising CBP personnel in this way would also remove a constitutional blight that has plagued American border communities like Arivaca for decades. Whether President Trump will show the wisdom required to adopt such an approach is another matter.

Fear of immigrant criminality is driving many changes to domestic immigration enforcement programs during the Trump administration.  One of the earliest such changes was the reactivation of the 287(g) program that allows state or local law enforcement agencies to enforce federal immigration law after entering into a partnership with Immigration and Customs Enforcement (ICE).  The Obama administration substantially scaled back 287(g) after numerous government reports found serious flaws in the program.  Gaston County, North Carolina sheriff Alan Cloninger said his sheriff’s office enrolled in 287(g), “for the protection of the citizens of Gaston County.”  Sheriff Cloninger’s desire to increase public safety is the primary reason, if not the only reason, why 76 local and state level law enforcement agencies across the country have enrolled in 287(g).

Surprisingly, there is little research on whether 287(g) had any effect on crime.  To test whether 287(g) had its intended effect, Cato research associate Andrew Forrester and I investigated whether 287(g) adoption actually lowered crime rates in North Carolina counties where it was established.  From 2003 through 2013, we find no statistically significant relationship between crime rates in counties that adopted 287(g) agreements relative to those that did not in North Carolina.  Importantly, we look at the number of deportations due to 287(g) enforcement by county, which allows us to examine 287(g)’s specific effects.  This means that 287(g) failed to reduce crime in counties where it was activated prior to 2013 when the Obama administration canceled many 287(g) agreements across the country.

In North Carolina, the crime-prevention justification for 287(g) does not hold but neither does the primary critique that it would raise crime rates by reducing citizen cooperation with the police.  It is possible that immigrants in 287(g) counties reported fewer crimes due to fear of immigration enforcement and, thus, an increase in crime would not be recorded in official statistics.  However, some crimes, like murder, are difficult to hide and tend to be reported regardless of local immigration enforcement policies.  To account for this, we further break down the crime rates by the offense and find no relationship between 287(g) and murder or any other individual crime.  Since crime rates did not increase after 287(g) adoption in North Carolina counties, it did not impact trust between local police and the population enough to affect crime rates.   

The only statistically significant relationship that we did find was an increase in the average number of assaults against police officers in 287(g) counties.  We do not know why 287(g) is causally related to the increase in assaults against police officers and we do not know the identities or characteristics of those who committed them.  Besides otherwise law-abiding illegal immigrants who are deported as a result of 287(g) and their American friends, families, consumers, employers, and landlords, police officers in North Carolina also appear to be victims of this program that fails to reduce crime.

Almost 62 percent of the 287(g) agreements currently in effect, 47 out of 76, were signed after President Trump took office.  In the coming months and years, many more state and local law enforcement agencies could also enroll in 287(g) out of the desire to reduce crime.  Charlotte-Mecklenburg Police Chief Kerr Putney recently said:  

The intent [of 287(g)] was to make sure we’re taking felons and gang members, who are violent, out of play … If you apply [the program] specific to those reasons, I think you’d have a totally different outcome.  If you’re asking everybody about their national origin, I think it’s a different application.  And so if it were as it were designed, I think it’s a good tool. I don’t know that it’s being applied that way.

Our research addresses Chief Putney’s concern that 287(g) is not an effective anti-crime tool.  The experience of North Carolina’s counties where 287(g) failed to reduce crime while it increased the number of assaults against police officers should at least be a warning to other counties and police agencies that are considering joining this program: It will not reduce crime.

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