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Some prefer to achieve their livelihood by being traditional employees, while others prefer to go the individual route and become proprietors and independent contractors. For centuries, the common law has distinguished between those two categories of individuals in order to ensure that independent contractors enjoy both the benefits and burdens of going into business for themselves. To that end, federal and state law has always understood the terms “employee” and “independent contractor” to mean two different things.

Enter the First Circuit Court of Appeals. Section 1 of the Federal Arbitration Act excludes from the Act’s provisions enforcing arbitration clauses those contained in “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” Interpreting that language, the First Circuit rejected the view that the term “contracts of employment” includes only (literally) “contracts of employment”—that is, contracts establishing traditional employer-employee relationships. Instead, it said, that FAA excludes any and all “agreements to perform work,” including “agreements of independent contractors to perform work.” That decision is now on appeal to the U.S. Supreme Court in a case called New Prime v. Oliviera.

Cato’s brief shows where the First Circuit went wrong. The Congress that enacted the FAA in 1925 would never have thought it excluded independent contractors. At that time, as today, statutory terms such as “employment” were universally understood to refer to agreements establishing traditional employer-employee relationships according to the principles of common law that evolved over the centuries. Congress knew that because it enacted (and would go on to enact) a series of statutes relying on the common law understanding of terms such as “employment.” Congress also knew and expected that the federal courts would interpret its handiwork in that manner because that is what the courts had repeatedly said that they would do, thereby providing Congress a foundational principle upon which to legislate.

That words such as “employment” referred specifically to traditional employer-employee relationships was not an obscure principle. To the contrary, it was reflected in practically every state workmen’s compensation scheme enacted in early decades of the Twentieth Century. Legislators knew that general provisions addressing traditional employees would never be understood to reach independent contractors. The common understanding of what these terms meant was that clear.

That Congress meant what it said in the FAA is not just a matter of presumption, but of fact. As a historical matter, Congress crafted the Section 1 exemption to avoid unsettling “established or developing statutory dispute resolution schemes covering specific workers.” Those schemes applied only to employees, not to independent contractors. Language and history both confirm that Congress used the term “contracts of employment” for a reason and that it meant what it said, targeting employees, not anyone else.

Because the right to earn a living by structuring one’s economic relations through contract is one of the basic rights that our Constitution was formed to protect, Cato has filed an amicus brief supporting the petitioners in New Prime, Inc. v. Oliveira. Cato seeks to have the Court reverse the erroneous decision below making a hash of Congress’s careful choice of meaningful words and to clarify, as it has many times before, that independent contractors are not employees and statutory terms such as “employee” means precisely what they say.

The American Public Transportation Association (APTA) has just published a paper on the economic cost of failing to modernize transit, referring to the roughly $100 billion maintenance backlog built up by U.S. transit agencies, mostly for rail transit. In fact, a strong case can be made that—with the possible exception of New York—American cities shouldn’t restore deteriorating rail transit systems and instead should shut them down as they wear out and replace them with buses where demand for transit still exists.

APTA claims that not restoring older rail systems will reduce “business sales” by $57 billion a year and reduce gross national product by $30 billion a year over the next six years. Reaching this conclusion requires APTA to make all sorts of wild assumptions about transit. For example, it states that a recent New Orleans streetcar line stimulated $2.7 billion in new infrastructure. In fact, that new infrastructure received hundreds of millions of dollars of subsidies and low-interest loans from Louisiana and New Orleans. In any case, APTA fails to make clear how rehabilitation of existing infrastructure could generate the same economic development benefits as building new infrastructure.

American taxpayers already pay more than $50 billion a year to subsidize transit. Essentially, APTA wants taxpayers to give transit agencies an additional $100 billion to keep transit systems running. I would argue that federal, state, and local governments should provide none of that money. Instead, the best policy towards them is benign neglect.

First, restoring obsolete transit is not the same as modernizing transit. Electric rail transit was developed in the 1880s and 1890s and was largely superseded by buses in the 1920s. APTA doesn’t propose to modernize rail systems by replacing them with buses; it wants to restore the obsolete systems. Outside of New York City, which (as I’ve shown elsewhere) may be the only place in America where rail cannot easily be replaced by buses, this is a waste of money.

Second, the transit backlog is due to bad transit management. Rather than spend money maintaining existing infrastructure, politicians and transit agencies have built new infrastructure. New York built or is building the Second Avenue Subway and East Side Access projects; Washington the Silver and Purple lines; Boston the Green Line extension to Medford; San Francisco built BART to the airport; and so forth. Rewarding badly managed agencies by giving them more money sends the wrong signal to other transportation and infrastructure agencies.

Third, transit ridership is declining nationwide and may soon disappear in many places with the advent of driverless ride-hailing. It may be declining in New York and Washington because deteriorating infrastructure has led to unreliable and unsafe conditions. But it is also declining in places with crisp, new infrastructure such as Norfolk-Virginia Beach and Charlotte. The real reason transit ridership is declining is that alternatives to transit are faster, more convenient, and increasingly less expensive. It makes no sense to dump $100 billion on an industry that is losing both money and customers.

Fourth, contrary to APTA’s claims, transit is irrelevant in most urban areas. New York is the obvious exception: a majority of commuters who live in New York City take transit to work. Transit is somewhat relevant in a few other central cities: Washington, where 38% take transit to work; San Francisco, 37%; Boston, 34%; Chicago, 29%; Philadelphia, 25%; and Seattle, 23%. When counting urban areas as a whole, however, transit is much less relevant: 35% in New York, but only 21% in San Francisco-Oakland; 17% in DC; 15% in Boston; 14% in Chicago; 11% in Seattle and Philadelphia; 10% in Honolulu; and under 9% almost everywhere else.

Many regions have spent enormous amounts on transit systems that carry few people to work. Despite having spent some $3 billion on light rail and commuter rail, transit in Salt Lake City carries just 5 percent of commuters to work. Denver spent more than $6 billion yet transit carries under 5 percent; Dallas-Ft Worth spent nearly $5 billion yet transit carries under 2 percent. There is no clear connection between spending money on transit and transit’s actual importance to an urban area.

As for economic development, transit is at best a zero-sum game for urban areas: even if proximity to transit increases local property values (a proposition that is increasingly dubious), it doesn’t increase regional values, meaning some other property owners must lose for owners near transit to gain. At worst, the high cost of supporting transit may be part of the reason why the urban areas that have spent the most on transit are the slowest growing.

Fifth, the transit industry notoriously spends money in the wrong places. Not only does it spend money on new infrastructure when the existing transit infrastructure is falling apart, the infrastructure it spends money on, whether new or rebuilt, is almost entirely a waste. That’s because the most efficient form of transit, which is buses, doesn’t need dedicated infrastructure except for storage and maintenance facilities.

APTA’s demand for subsidies to “modernize” transit is the last gasp of a dying industry that has become utterly dependent on subsidies for everything it does. In fact, truly modern transit wouldn’t use infrastructure that is so prone to deterioration. No urban area in America other than New York truly needs rail transit, and New York’s problems are due to a local failure to spend money on maintenance and shouldn’t be the responsibility of state or federal taxpayers.

Failing to provide the funds needed to restore rail transit lines will force transit agencies to replace those lines with buses. That will be a victory for taxpayers and a victory for transit riders.

Last Tuesday, North Korea canceled a high-level diplomatic meeting with South Korea and threatened to call off next month’s summit between Donald Trump and Kim Jong Un. North Korea’s statements came just one week after Secretary of State Mike Pompeo returned from Pyongyang with three American citizens held prisoner by the Kim regime and the date for the Trump-Kim summit in hand.

The current episode of tension reflects a wide and dangerous expectation gap between the United States and North Korea, but it should not dissuade the Trump administration from going through with the summit.

If the Trump administration wants to take away the right lessons from North Korea’s display of anger it needs to first understand the root cause of North Korea’s ire. When Pyongyang announced that it was calling off a high-level diplomatic meeting with South Korea it cited the U.S.-South Korea military exercise known as “Max Thunder,” a large-scale air force exercise that has occurred every year since 2009, as the culprit. A statement released by state broadcaster KCNA said, “The maneuver [Max Thunder] is the largest-ever and a reflection of the invariable stand of the U.S. and south (sic) Korea to persist in the ‘maximum pressure and sanctions’ against the DPRK.” In particular, North Korea objected to U.S. F-22 fighters and B-52 bombers participating in the exercise, as the former can easily penetrate North Korean airspace with little chance of detection and the latter is nuclear-capable. After the KCNA denunciation of Max Thunder, the Pentagon released a statement clarifying that B-52s were not slated to participate but North Korea did not drop its opposition to the exercise.

Max Thunder itself is probably not the real reason why North Korea is threatening to call off the Trump-Kim summit. If Kim viewed the exercise as unacceptable he had ample opportunity to raise the issue with the United States and South Korea. The exercise began on May 11 and there was no indication given before or during the exercise that North Korea viewed it as a potential deal breaker. Moreover, if Kim had voiced concerns Washington and Seoul probably would have adjusted some elements of Max Thunder to preserve diplomacy considering they agreed to postpone the annual Foal Eagle exercise so it would take place after the Winter Olympics and adjusted the length of and forces that participated in Foal Eagle to ensure a smooth inter-Korean summit.

Rather than military exercises, North Korean anger stems from two issues. First, Pyongyang seems frustrated about the relative lack of concessions made by the United States in the lead-up to the Trump-Kim summit. In the past month, North Korea freed American detainees and began dismantling its nuclear testing site, but from the North’s perspective, the United States has not taken many similar steps in return.

Second, Kim and his regime are listening to what U.S. officials have said about the upcoming summit and they don’t like what they are hearing, especially from National Security Advisor John Bolton. Indeed, Kim Kye Gwan, North Korea’s vice minister of foreign affairs, called out Bolton by name, saying, “We shed light on the quality of Bolton already in the past, and we do not hide our feeling of repugnance toward him.”

Beyond the personal insults, the North Koreans criticize Bolton for promoting a “Libya model” for North Korean denuclearization. Based on recent statements, Bolton’s use of the term likely refers to an invasive inspections regime. In a recent interview with CBS, Bolton said, “One thing that Libya did that led us to overcome our skepticism was that they allowed American and British observers into all their nuclear related sites. So it wasn’t a question of relying on international mechanisms. We saw them in ways we had never seen before.” However, to the North Koreans, Libya is a cautionary tale because less than ten years after Moammar Gaddafi surrendered his nuclear weapons program he was deposed and brutally killed with the help of American air power.

North Korea’s recent behavior is a sobering reminder about the danger of mismatched expectations. On the one hand, Kim Kye Gwan’s statement indicates that North Korea is approaching the Trump-Kim summit with the expectation that the goal of the summit is to improve the relationship with the United States. Denuclearization is not off the table for the North, but it expects the United States to end the so-called “hostile policy” as a precondition for denuclearization. On the other hand, the Trump administration seems to think that its maximum pressure campaign is an unmitigated success and all-but-predicting that the summit will produce significant progress on denuclearization in exchange for sanctions relief. Critics rightly point out that such claims are premature, at best.

North Korea is likely using the Max Thunder exercise as a tool for reaffirming its expectations in advance of the Trump-Kim summit. The summit is not in mortal danger right now as both Kim and Trump have invested political capital in making the meeting happen and some in the Trump administration has started distancing itself from Bolton’s comments about the “Libya model.” However, both sides need to narrow the current gulf in expectations. If current irreconcilable differences persist, there is a good chance that the summit will end in a dismal failure.

Richard Pipes, the great Harvard historian, has died at 94. Best known for his clear-eyed work on Russia and its Bolshevik Revolution, a topic on which so many thinkers over the past century have fallen short, Pipes also wrote a terrific 1999 book on private property as a cornerstone of civilization, Property and Freedom: The Story of How through the Centuries Private Ownership Has Promoted Liberty and the Rule of Law. It’s a favorite on Cato reading lists, including Tom Palmer’s on principles of liberty and Ian Vásquez’s on economic development. I reviewed it favorably at the time for the Wall Street Journal and noted its wide historical sweep, including Pipes’s account of the many schools and movements since Plato that have taken a stance hostile to rights of private possession. These include not only communists, syndicalists, and the like, but some romantic nationalists and even cultural anthropologists who for a time claimed (wrongly) that primitive peoples dispensed with ideas of mine and thine. 

Pipes always had his eye on the real-world consequences of these views for nations and their development. As I wrote, summarizing his argument:

The fork in the road between Britain and Russia, it would seem, came on the issue of whether the ruler could be said to own everything in the country. In England, this idea was challenged and then rejected with the revolutionary consequence that the king had no more right to trespass on an Englishman’s freehold than anyone else did. Nor (eventually) could he exact financial penalties from his subjects – or do much of anything else, such as take away life and liberty – without due process of law. The idea that rights were something prior to government soon made England the most property-oriented country on earth.

By contrast, in unhappy Russia, the czars’ claim to own everything carried only too much weight. The members of the Russian nobility often found themselves acting as collectors-of-tribute on highly revocable allotments. Serfdom persisted because the obligations of nominal landowners to the crown were too onerous to be met any other way. Whole categories of economic endeavor, such as coach inns and flour mills, were decreed to be the property of the royal family. When Lenin sought to ensure submission to the authority of his Soviets by ordering the pulping of old title deeds, he was acting in the tradition of the worst czars.

He was equally cogent when he stepped back for reflections of a more philosophical nature, as when he invoked David Hume on redistribution: “Render men’s possessions ever so equal, men’s different degrees of art, care and industry will immediately break that equality. Or if you check those virtues, you reduce society to the most extreme indigence; and, instead of preventing want and beggary in a few, render it unavoidable to the whole community.”

Whole review here. Ira Stoll rounds up several resources on Pipes’s work including his archive of writings at Commentary, where he reviewed such works as Hernando de Soto’s The Mystery of Capital, Tom Bethell’s The Noblest Triumph: Property and Prosperity Through the Ages, and Eric Hobsbawm’s memoirs, being appropriately scathing about the last of these. A great mind and a great scholar, who chose for his life’s work subjects that could hardly be more important for humanity’s future. 

 

Efforts to reform the U.S. sugar program fell short last week when an amendment to the farm bill offered by Rep. Virginia Foxx (R-North Carolina) was voted down by the lopsided margin of 137-278. Foxx couldn’t even persuade a majority of her fellow Republicans to support the measure, with only 96 voting in favor and 132 in opposition. Democrats, meanwhile, voted to preserve the sugar status quo by a split of 41-146. For all of the laments one hears about a lack of bipartisanship in Washington, the vote was a powerful reminder that both parties are still able to rally towards a common purpose when special interests and government power are threatened.

report from Agri-Pulse nicely captures this dynamic (emphasis mine):

The top Democrat on the House Agriculture Committee, Collin Peterson of Minnesota, had expressed confidence that Democrats would help defeat the farm bill amendment despite their opposition to the overall legislation, and he delivered…Peterson, who represents one of the largest sugar-growing districts, said he gave an impassioned plea to fellow Democrats Wednesday morning to vote against the bill, reminding them of his leadership in opposing the overall bill. He said he told them that “the only thing I cared about was sugar and I needed their help.”

[House Agriculture Chairman Mike Conaway, R-Texas], said he called in favors from GOP colleagues and credited GOP leaders for also helping defeat the sugar measure. He told reporters that he considered  the amendment an “existential threat” to farm policy because it would have emboldened critics to go after other forms of commodity programs. 

Peterson hails from the party that claims to stand up for the little guy against economic elites while Conaway’s fellow partisans regularly profess skepticism of government and a belief in the free market. The reality, however, is plain for all to see. 

As I detail in a recent policy analysis, the U.S. sugar program is an absurd exercise in discredited central planning whereby the federal government deliberately restricts the supply of sugar in order to drive its price higher than it would otherwise be. Functioning as a wealth transfer from U.S. consumers and businesses to the sugar industry, the program is arguably the most egregious example of the federal government operating at the expense of the majority to benefit a well-connected minority. 

Notably, the reform effort led by Rep. Foxx—while a welcome step in the right direction—would have left significant amounts of the sugar program in place. Tariff rate quotas, for example, which restrain access to cheaper sugar from abroad would have been mostly untouched while government loans to sugar processors were slated to see their collateral demands only slightly raised. Yet even modest reform was too much to stomach for the sugar lobby. The fight for sugar sanity goes on. 

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.

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