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It’s summertime and across the United States, children are away from school. The custom of long breaks in the school year dates to when most Americans worked in agriculture and often needed their children’s help on the farm. Of course, most children simply didn’t attend school, instead helping with housework and grueling farm labor year-round. In 1820, for example, primary school enrollment in the United States was just over 40 percent. That percentage rapidly shot upward in the coming decades, reaching 100 percent by 1870. But even then, many children didn’t make it past elementary school. In 1870, U.S. mean years of schooling stood at just 4.28. That number has risen steadily ever since. What changed? Technology, for one thing.

In his book Enlightenment Now, Harvard University professor Steven Pinker recounts how technology helped get boys off the farm and into the classroom. He quotes a tractor advertisement from 1921:

“By investing in a Case Tractor and Ground Detour Plow and Harrow outfit now, your boy can get his schooling without interruption, and the Spring work will not suffer by his absence. Keep the boy in school—and let a Case Kerosene Tractor take his place in the field. You’ll never regret either investment.”

As more farms adopted efficiency-enhancing agricultural devices like kerosene tractors, more boys attended school instead of working the fields. For girls, the huge time savings brought on by labor-saving household devices played a similar role. As running water, electricity, washing machines, and other modern conveniences spread, time spent on housework plummeted. Pinker’s book also contains a telling chart documenting the change.

Most of the work replaced by those technologies had traditionally fallen to mothers—and to their daughters. The time freed up by innovation enabled more girls to attend school.

Washing machines and tractors have accomplished more than just cleaning clothes and ploughing fields. They also freed America’s children to receive an education.

Today, there are still children kept from school by household labor requirements. The burden disproportionately falls on girls. According to the United Nations, data from 42 countries show that rural girls are more likely to be out of school than rural boys. In rural Sub-Saharan Africa, the U.N. data also shows that girls often spend more time gathering wood and water than boys—time that could be spent in a classroom instead.

Fortunately, access to running water and electricity is rapidly spreading across the globe. As more households gain access to modern technologies, more children will leave behind backbreaking physical labor for school books and studying.

A couple of recent New York Times articles discuss pregnancy discrimination in the workplace. In its most recent spread, the Times outlines a variety of stories of expectant mothers losing jobs or job responsibilities and cites the growing number of pregnancy-related Equal Employment Opportunity complaints to imply rates of pregnancy discrimination may be increasing.[1]

As a solution, the article’s authors propose pregnant women would be better off with additional government protection, perhaps similar to the protection afforded to Americans with disabilities. The Times should be careful what it wishes for.

While arguing for added protections for pregnant women, the Times forgets to mention that rights to accommodation for people with disabilities didn’t work out as planned. One study finds the Americans with Disabilities Act (ADA) of 1990 reduced “employment of disabled men of all working ages and disabled women under age 40.”

Other evidence finds the ADA reduced employment rates for men with disabilities by 7.2 percentage points and was “associated with lower relative earnings” and “slightly lower labor force participation rates” for people with disabilities.

Indeed, when ADA took effect in 1990, 28.4 percent of people with disabilities were employed (compared with 78.4 percent of non-disabled persons). In 2014, the employment rate for people with disabilities had fallen to 12.9, or less than half of the 1990 figure. The employment rate didn’t changed much for non-disabled persons, so the employment gap between disabled and non-disabled widened considerably during this period.

Figure 1: Employment Rate Through Time for Persons with and Without Disabilities, Ages 21-64

Data Source: Census Bureau’s Current Population Survey   Measuring disability prevalence accurately can be difficult, so some individuals take issue with these results. But other survey data that use different definitions corroborate these trends (e.g. NHIS and SIPP).   Moreover, disability prevalence did not decline in a way that might indicate ADA genuinely helped many persons with disabilities find jobs and left a more difficult-to-employ population behind. The proportion of Americans with a work-limiting disability has grown since ADA implementation.     Figure 2: Disability Prevalence Through Time, Ages 21-64    Data Source: Census Bureau’s Current Population Survey  

The government was trying to help people with disabilities, so why did ADA hurt their employment prospects?  A 2010 study examining the ADA 20 years after its passage concludes

The unclear expectations on what constitutes appropriate accommodations for people with disabilities is likely having a chilling effect on the employment prospects of the disabled population. Fears of costly litigation and administrative grievances are driving some employers to be suspect, if not downright hostile, to hiring workers with a disability. Reflecting an all too common irony in social policy, the ADA might be having the exact opposite effect of the intent of the legislation.

According to the Times, pregnant women should have the same accommodation rights. But if pregnant women knew about the impact of the ADA on disabled population, fewer might be interested in this form of government “protection.”

[1] Note that these figures don’t provide evidence of that per se.

Domestic and international politics surrounding the Trump administration’s planned summit with Moscow are largely overshadowing the tangible U.S. national interests at play. Trump’s frequently expressed esteem for President Putin, along with his apparent admiration for authoritarian strongmen from Kim Jong Un to Rodrigo Duterte, rubs much of Washington and many U.S. allies, particularly in Europe, the wrong way for two reasons. First, it suggests that Trump is abandoning America’s purported role as a global defender of democracy. Second, it suggests that Trump is unwilling to take a tough stance toward Moscow despite the U.S. intelligence community’s assessment that Russia meddled in the 2016 election and constitutes a major, continuing threat to America’s security and geopolitical interests.

But even if Trump is more brazen than his predecessors in his fondness for autocrats, the United States has a long history of showering brutal dictators with rhetorical praise and direct support. And while Trump has been rhetorically easy on Putin in a way that has made NATO allies, and the U.S. foreign policy community, uncomfortable, the nuts and bolts of U.S. policy toward Russia have not changed. The Trump administration has pushed to expand NATO, boosted U.S. troop deployments in the Baltics, conducted provocative military exercises with its alliance partners in various East European locales as well as the Black Sea, and refused to give ground to Russian interests in Ukraine or the Balkans. Indeed, the administration has even engaged in military exercises with Ukrainian forces and approved the sale of “defensive” arms to Kiev.

Proposals for a tougher approach toward Russia essentially amount to imposing more economic sanctions, which have not proven effective in changing Russia’s policies or strategic calculus, and retaliatory covert cyber operations, which would likely escalate tensions to little greater effect.  Moreover, some of the anger toward Moscow among politicians and pundits has generated a worrisome intolerance of those in the policy community who dare advocate a more conciliatory posture. Indeed, at times that shrill criticism is reminiscent of the excesses that Senator Joseph McCarthy and his followers exhibited. That development damages America’s political culture.

Contrary to much of the political commentary, meeting with adversaries, such as Putin and North Korea’s Kim Jong-un, is not tantamount to appeasement. Nor are sensible negotiations and a willingness to compromise. While Russian meddling in the 2016 election was a serious offense, we must avoid letting it drive U.S. policy into determined, unrelenting hostility. The two countries are already perilously close to a second Cold War, and it is imperative to keep the lines of communication and diplomacy open. 

The alleged threat from Russia, including the apparent election meddling, must be kept in perspective. The United States remains the world’s economic and military superpower and is remarkably insulated from external security threats. Meanwhile, Russia’s economy is approximately the size of Spain’s, it has limited conventional power projection capabilities, and it suffers from burdensome domestic problems, including corruption, as well as demographic trends that are likely to sap its power potential in future years.

A Trump-Putin summit is worthwhile, as there are a number of contentious issues that need to be addressed and require diplomacy to resolve. Those volatile disagreements include sharp differences over policy toward Syria, Iran, North Korea, and Ukraine.  Even a candid bilateral dialogue at the highest level may not resolve those differences, at least not quickly. But just as the Trump-Kim summit helped ease tensions and the risk of a dangerous confrontation, the summit meeting between Trump and Putin may help dampen the growing U.S.-Russian animosity. That would be useful, because it will be difficult to make even modest progress toward solving problems such as Syria, Ukraine, and North Korea without substantial Russian input and cooperation.

To achieve a bilateral détente, though, U.S. objectives must remain limited and realistic. It may be possible to induce the Kremlin to dial back its support for separatist rebels in eastern Ukraine or limit the Russian military presence in Syria. It is not an achievable objective to insist that Russia return Crimea to Ukraine. Moscow will no more do that than Israel will return the Golan Heights to Syria or Turkey relinquish occupied northern Cyprus to the Republic of Cyprus.

President Trump has yet to demonstrate the strategic acumen necessary to deftly engage in nuanced diplomacy with adversaries in a way that tangibly advances U.S. interests. The summit with Kim was a mixed bag. The achievement consisted primarily of changing the overall dynamics of the bilateral relationship in a less confrontational direction. Although that meeting did not deserve the knee-jerk negative response from Trump’s political opponents (or, for that matter, the knee-jerk positive response from his supporters), there also were few truly tangible gains.  Moreover, the president seemed more interested in stagecraft, rather than statecraft. He needs to improve that performance in his summit with Vladimir Putin.

President Trump ordered the end of his child separation policy, and a court has ordered the reunification of parents who were separated from their children. The Department of Homeland Security (DHS) has said it will stop referring parents, but many conservatives felt that the family separation was a positive development in the fight against illegal immigration and even required by law, so here is a review of nine of their most common defenses of the policy. 

1. “It’s the law, and that’s what the law states.” -White House Press Secretary Sarah Huckabee Sanders

  • No, it doesn’t, and in many cases, the law prohibits criminal prosecutions.

No law requires immigrant children to be separated from their parents. Under the Trump administration’s “zero tolerance” policy, DHS chose to refer to the Department of Justice (DOJ) twice as many border crossers—and far more parents—for prosecution for “improper entry” under 8 U.S.C. 1325. This law provides that “any alien who… attempts to enter the United States at any time or place other than as designated by immigration officers… shall… be fined… or imprisoned not more than 6 months.” Those who claim that this statute requires separation must defend the view that it 1) requires referring all offenders for prosecution, 2) requires separating children during that referral, 3) requires prosecutors to seek jail time, and 4) allows no exceptions.

None of these four claims are true. 1) The “shall” in this statute doesn’t require prosecution of every single offender, but rather limits the penalties to be imposed (“shall be… not more than”). As DOJ’s own manual affirms, “the prosecutor has wide latitude in determining when, whom, how, and even whether to prosecute… [as] has been recognized on numerous occasions by the courts” (citing a half a dozen cases). The statute, however, specifies the maximum or minimum penalties should the prosecutor decide to prosecute. 2) In any case, nothing in this statute requires that—in the process of DHS’s referral for prosecution—a parent be separated from their child, and 3) the statute explicitly allows prosecutors not to seek jail time. In response to an ACLU lawsuit, DOJ even admitted to the court that the detention and prosecution decisions are entirely “discretionary.”

4) As importantly, 8 U.S.C. 1158 provides that “Any alien who…  arrives in the United States (whether or not at a designated port of arrival…), irrespective of such alien’s status, may apply for asylum…” In other words, it is completely legal for illegal immigrants to apply for asylum not at a designated port of entry. Congress enacted the statute permitting asylum in 1980 after it criminalized improper entry in 1952, indicating that it did not envision asylees being prosecuted. Moreover, the United States is a party to the United Nations 1951 Refugee Convention. Article 31 prohibits, with some exceptions, “penalties, on account of illegal entry or presence” on refugees because “the seeking of asylum can require refugees to breach immigration rules.” The DHS Office of Inspector General has found prosecuting asylum seekers at the border “may violate U.S. treaty obligations” under the Convention.

Congress has certainly never made it mandatory to separate families. In fact, the House Committee on Appropriations in 2005 under Republican control stipulated in its report attached to the annual appropriations bill that it “expects DHS to release families or use alternative to detention such as the Intensive Supervised Appearance Program whenever possible,” and that if detention is temporarily necessary or otherwise unavoidable, it “directs DHS to use appropriate detention space to house them together.”

2. “If you are seeking asylum for your family, there is no reason to break the law and illegally cross between ports of entry.” -DHS Secretary Kirstjen Nielsen

  • False. Secretary Nielsen has admitted DHS is turning back many asylum seekers at ports of entry and that it is still separating many families who are admitted at ports.

In January 2017, the American Immigration Council (AIC) filed a complaint about the DHS’s practice of turning away asylum seekers at ports of entry. Human Rights First documented numerous other cases in May 2017, concluding that the policy “is pushing some asylum seekers to dangerously cross the border between formal entry points.” In July, AIC filed a class action lawsuit challenging the policy. In December 2017, NPR reported that DHS officials at a port in San Diego were telling asylees from Central America “they can’t come in.” In June 2018, the Atlantic published video of asylum seekers being turned back at ports of entry—one man was turned back 20 times in four days. This forced them to sleep homeless under a bridge in Mexico. The same month, the Intercept reported on the officials in Texas rejecting asylum seekers from Central America, producing video of the illegal actions, and the Washington Post reported on a father with a 15-year-old son whom CBP officials had rejected nine times over the course of nine days. Here are many other cases.

In April 2018, Secretary Nielsen herself admitted this was happening and said, “We are metering, which means that if we don’t have the resources to let them in on a particular day, they are going to have to come back.” It is illegal under 8 U.S.C. 1158 to refuse to allow a person to submit an asylum application. It takes minimal resources to process an asylum claim, so the idea that they need to stop processing now is baseless. Moreover, because the practice has forced homeless, hungry, and desperate people to cross between the ports, DHS still has to process the claims, while at the same time, it has chosen to expend resources to arrest them, refer them for criminal prosecution, and house the children in detention facilities—all of which is more expensive than processing the original claim.

Finally, DHS is still separating some families who presented themselves at ports of entry for asylum. Secretary Nielsen has stated that “for those seeking asylum at ports of entry… we only separate if the child is in danger, there is no custodial relationship between ‘family’ members, or if the adult has broken the law.” The ACLU filed a lawsuit on behalf of a woman who DHS separated from her 7-year-old daughter after she turned herself in at a port of entry. DHS eventually returned the child five months later without an apology. In December 2017, DHS separated four fathers from their children, claiming that it couldn’t verify their relationships. Many other cases have been documented by Erika Pinheiro, policy and litigation director at Al Otro Lado. The separation policy is far broader than DHS maintains.

3. “If you as a parent break into a house, you will be incarcerated by police and thereby separated from your family. We’re doing the same thing at the border.” -DHS Secretary Kirstjen Nielsen

  • No, it’s not the same. Burglary is a serious crime and generally a felony. Illegal entry is not.

Ignoring the illegality of prosecuting asylum seekers and setting aside the fact that there is no requirement to prosecute, illegal entry is a misdemeanor offense. Illegal entry is most similar to technical violations of motor vehicle law, such as driving without a license, not breaking and entering, because it amounts to nothing more than movement without a proper permit. Many misdemeanors do not even require police to take a person into custody at all. A variety of traffic offenses—including driving without a license, operating an unregistered vehicle, speeding, and other offenses—are misdemeanors in dozens of states. In general, police simply issue a summons to appear in court (for an example, see the Virginia code here). If a child is in the vehicle, they are not separated from the parent pending the final dispensation of the case.

In the unusual cases in which a parent is brought into custody for such a violation, the children either wait in the police station while the parent is processed or are handed off to a relative. For example, in the case of Gail Atwater v. City of Lago Vista, a local police officer arrested Atwater for a seatbelt violation with children in the car. The officer initially said that the children could come to the police station, but allowed a friend of Atwater to pick them up. In other words, there is a massive difference between the treatment of minor offenses committed by Americans and these parents coming to the border. Moreover, if U.S. parents and children are separated for these types of offenses—as in the Atwater case—it is an outrage, not a justification for further separations.

4. “The separation of parents and their children is because of a court ruling.” –Speaker Paul Ryan

  • No, it only requires the government to treat children humanely.

No court case requires the separation of parents and children. Defenders of the Trump policy point to the Flores settlement agreement and the Ninth Circuit’s 2016 interpretation of it, but neither requires family separation.

In 1985, Border Patrol arrested a 15-year-old Salvadoran girl named Jenny Lisette Flores attempting to cross the border illegally. She was attempting to reunite with her mother who had come to the United States during El Salvador’s long and bloody civil war. She—and all other minors in government custody—were subject to abuse, detained alongside adults, and forced to undergo daily strip searches, which a judge found violated the Constitution in 1988. After more than a decade of litigation over her case, the Clinton administration settled, entering into an agreement that specified standards for facilities for minors and required the government to quickly place minors in “the least restrictive setting appropriate to the minor’s age and special needs.” The Ninth Circuit in 2016 found that it “unambiguously applies both to minors who are accompanied and unaccompanied by their parents.”

Nothing in the Flores settlement or the Ninth Circuit decision mandates that children be separated from their parents—just the opposite: Flores requires that they be reunited with them if they happen into government custody alone. Minors are only to be separated from “unrelated adults.” The Trump administration argues that because Flores mandates the release of children within 20 days, it requires them to separate children from their parents who are still in custody. This is false. Flores does not prohibit the release of parents, which would keep the family unit together as long as their case is pending (argument #5 below shows how this can be workable).

In any case, Flores was not the origin of the family separation policy because it only governs DHS custody determinations. The separation of children and parents started up in earnest this year because DHS decided to transfer to DOJ—and DOJ decided to prosecute—parents who had crossed the border with children.

5. “Adults and children were simply being released in the country [when] we refused to prosecute these adults for illegal entry.” -Attorney General Jeff Sessions

  • Prosecution doesn’t prevent eventual release, and alternatives to detention work and save money.

Prosecutions for illegal entry do not prevent release into the United States. After the 9th Circuit clarified that Flores applied to all minors, the Obama administration did decide to release both parents and children pending determinations on their asylum claims, rather than separate the children from the parents. But prosecutions for illegal entry only delay deportation for those without a credible asylum claim and do not prevent release of asylum seekers by the DHS after DOJ is finished prosecuting them. In fact, the criminal prosecutions often only take a few days to process because defendants are prosecuted in mass, and most plead guilty as quickly as possible (particularly when they are separated from their children). After the prosecution, the parents are sent back to DHS custody—just not with their kids.

While families were released in 2015 and 2016, the Obama administration created alternatives to detention that included bonds, electronic monitoring, and community management. These programs resulted in high levels of compliance among asylum seekers pursuing their claims in immigration court. In 2016, 83 percent of those released on bonds showed up in court. The Intensive Supervision Appearance Program (ISAP) resulted in appearance rates of 99.6 percent. The Family Case Management Program (FCMP) uses caseworkers to help immigrants comply, and 100 percent of the immigrants in the program showed up for their court hearings. Nonetheless, the Trump administration terminated this program in June 2017. The Family Placement Alternatives program which relies on community monitoring achieved a 97 percent appearance rate, at a cost of just $50 per day per family, compared to the estimated detention cost of $798 per family. In other words, there are cheaper alternatives to detention.  

6. “It would be a tough deterrent.” -White House Chief of Staff John Kelly

  • Family separation has failed to deter people from coming, and it is cruel and illegal to deter asylum seekers from seeking safety in the United States.

No evidence has emerged that family separation has done much to deter illegal immigration. DHS experimented with family separation in a single border sector around El Paso from July to November 2017. As Dara Lind at Vox first reported, the number of families coming through that sector actually increased 64 percent during the experiment from 231 to 379. May was the first month that saw the policy applied across the entire border, and the number of families stayed virtually the same from April through the end of May. In general, the number of families has increased from a monthly average of 6,301 in 2017 to 7,389 in 2018, despite increasingly harsh enforcement.

In any case, it is entirely legal to seek asylum at or between ports of entry, and prosecuting asylum seekers in order to deter them from fleeing violence is illegal and cruel. Kelly has said that he wants to deter them because the journey is so dangerous. But the migrants are aware of the risks. A UNICEF report from 2016 highlights stories of Central Americans who are planning to travel or have attempted to travel to the United States, including a boy who lost his leg falling from a train on the way. Still, he predicts that his siblings will eventually make their own attempts to get to the United States. As UNICEF concludes, “Anyone who fled from a gang or other criminal organizations is at high risk of being attacked, raped or killed upon returning home.” Dozens of deported Central Americans, including some children, have already been murdered. The repeated attempts of people who were deported further highlights that they consider the dangerous journey a risk worth taking.

7. “The kids are being used as pawns by the smugglers and the traffickers.” -DHS Sec. Kirstjen Nielsen

  • False. DHS statistics show that 99.8 percent of all families were not alleged smugglers.

DHS alleges that 237 individuals of the 106,724 who entered as a family unit from October 2016 to February 2018 pretended to be the parent of a unrelated child—that is 0.2 percent of all family members. It is important to remember that this is just what DHS alleges, not what it has proven in court. Some of these parents dispute DHS’s findings, claiming that they are the parents of the children, and have now been wrongfully separated from them.

8. “Our issue is strong borders, no crime; their issue is open borders, let MS-13 all over our country.” -President Trump

  • False. Latin American immigrants, including illegal immigrants, are less likely to commit crimes.

In 2016, immigrants from Latin America were about half as likely to end up committing crimes and being incarcerated in the United States as native-born Americans. Even illegal immigrants from Latin America—who can be incarcerated in detention and prisons purely for immigration offenses (as the administration is doing)—are significantly less likely to be incarcerated in the United States than people born in the United States. A substantial body of research now shows that immigration has reduced crime rates in general across the United States.

9. “Such a difference in the media coverage of the same immigration policies between the Obama Administration and ours.” President Trump

  • Obama’s flawed policies don’t justify Trump’s, and while Obama did occasionally separate some families, Trump not only increased the practice dramatically—he made it mandatory.

President Obama never had an explicit policy of separating families. Nonetheless, the Obama administration’s activities should not be downplayed. Virtually all the actions that the Trump administration has taken are ramped up versions of policies and practices of the prior administration. American Immigration Council filed a complaint on behalf of five asylum seekers denied access to ports of entry in early January 2017 before President Trump took office and called the practice “systematic.” Lutheran Immigration and Refugee Service, Women’s Refugee Commission, and Kids in Need of Defense published a report the same month describing numerous reports of family separation as a consequence of criminal prosecutions.

But DHS turned the problematic procedures under the Obama administration into official policy—indeed, appearing to even intentionally target parents with children as a deterrent. Under Obama, DOJ’s policy was generally not to prosecute parents traveling with children (though it is clear that DHS did not always refrain from referring parents to DOJ for criminal prosecution). In any case, under Trump, the share of border crossers that were prosecuted shot up from 30 percent to 60 percent (not quite “zero tolerance,” but moving in that direction). DHS has not published statistics on the number of separated families over time, but in May through June 2018, the policy separated between 2,300 and 3,000 children from their parents. The number of cases before the policy is unknown, but likely in the dozens per month or fewer.

President Trump recently said, “Our issue is strong borders, no crime; their issue is open borders, let MS-13 all over our country.” But according to statistics from Border Patrol, the government made arrests of just 275 MS-13 gang members at the border so far in 2018—that’s just 0.11 percent of the 252,187 apprehensions in this year. That’s hardly any different from prior years. Apprehensions of individuals in any gang made up just 0.2 percent of all Border Patrol arrests in 2018, meaning that 99.8 percent of all arrests were not gang members.

The figure below shows the trends in these apprehension figures. 2015 saw the highest share of gang members arrested. However, 2014 saw the highest number at 1,034. MS-13 arrests as a share of all arrests were highest in 2018, but still lower in absolute terms than in 2014.

Gangs as a share of all border patrol apprehensions

This picture of enforcement mainly targeting nonviolent people fits with the statistics on enforcement against immigrants inside the United States as well.  Other Cato research has demonstrated that illegal immigrants commit fewer crimes than native-born Americans.

I’ve written before about the worrisome gap between the American people and foreign policy elites (see e.g. here and here). Whereas most Americans believe that the U.S. military exists chiefly to defend the United States and its economic and security interests, the intelligentsia is committed to a broader set of objectives, including defending the security of others, shaping the international system, and advancing the cause of democracy and human rights. These slightly differing impulses often worked hand in hand. A large and active U.S. military that was focused mostly on U.S. security and prosperity typically helped others.

But that wasn’t always the case. And military interventions initiated with lukewarm public support (e.g. Somalia 1993), or sold on phony pretenses (e.g. Iraq 2003), eventually subjected the men and women responsible for these debacles to closer scrutiny. As I explain over at The National Interest:

Trump exploited the gap between the elites and the public at large with ruthless efficiency on his path to the GOP nomination, and then in his general election win over Hillary Clinton. As president, his rhetoric has continued to shine the light on the public vs. elite divide, though his actions have largely conformed with the primacist consensus

Increasingly, however, we see not merely a disconnect between the public and elites, but also among different age groups within the American electorate. And the age cohort most skeptical of American global leadership, at least as it has been practiced for the last several decades, is the Millennial Generation, those men and women born between 1981 and 1996. These individuals did not arrive at their views because of Donald Trump; a majority of voters under 45 voted for Hillary Clinton.

Earlier this week, Cato hosted a policy forum exploring the generational divide and centering on a new report by the Chicago Council on Global Affairs. The event featured three of the authors of this report: the Chicago Council’s Dina Smeltz, Cato Senior Fellow and GMU Professor Trevor Thrall, and William Ruger of the Charles Koch Institute, and also included a lively and wide-ranging discussion.

Going back to 1947, the Chicago Council has asked Americans “Do you think it will be best for the future of the country if we take an active part in world affairs or if we stay out of world affairs?” The percentage of those answering “active part” has averaged in the high 60s/low 70s.


When one separates respondents by their age cohorts, however, the generational divide becomes clear. The Silent Generation, those men and women born between 1928 and 1945, are most supportive of an active role (78 percent in the latest survey). Baby Boomers (born between 1946 and 1964) are slightly less supportive (72 percent), and Generation X (1965-1980) less “active” still (62 percent). Barely a majority of Millennials (51 percent) embrace the “active” over “stay out” approach.


But, as I explained in my introductory remarks, and then expanded upon at TNI, Millennials don’t want to disengage from the world – rather, they want to engage differently:

they appear to be in relative agreement with older Americans regarding the need to share global leadership with others. Additionally, Millennials are somewhat more supportive of free trade, and have more positive attitudes toward the effects of globalization upon the U.S. economy, than men and women born in earlier eras. 

In that sense, we should consider moving beyond euphemistic terms such as global leadership and global engagement, and cast the generational divide as one between hawkish engagement and militarism versus generally peaceful engagement through commerce and cultural exchange (i.e. leading by example).


 And, once the Millennial generation is firmly in control, we might see U.S. leadership practiced less through costly and counterproductive wars, and more through mutually beneficial trade and diplomacy.


You can read my complete commentary here.

To watch or listen visit the event page here, and if you would like to learn more, please check out the report.

Monday of this week marked the Day of the Seafarer, an occasion meant to recognize the critical role played by mariners in the global economy. American seafarers, however, increasingly find little to celebrate. A large source of their travails is the Jones Act. Signed into law 98 years ago this month, the law mandates that cargo transported between two domestic ports be carried on ships that are U.S.-built, U.S.-owned, U.S.-flagged, and U.S.-crewed.

The harm caused by this law is well documented. By reducing competition from foreign shipping options and mandating the use of domestically built ships that are vastly more expensive than those constructed elsewhere, the Jones Act has raised transportation costs and served as a de facto tax on the economy.

Too often overlooked is that the Jones Act has also presided over the decimation of the U.S. maritime sector, the very industry whose fortunes it was meant to promote (an age-old story in the annals of protectionism). The numbers speak for themselves. Since 2000 the number of oceangoing vessels of at least 1,000 tons which meet the Jones Act’s requirements has shrunk from 193 to 99. A mere three U.S. shipyards are capable of producing oceangoing vessels for commercial shipping, and one of them, the Philly Shipyard, is facing a possible shutdown. Europe, in contrast, has roughly 60 major shipyards capable of building vessels of at least 150 meters in length, while the United States has a total of seven such shipyards when those producing military vessels are included.

Both the declining number of Jones Act ships and the struggles of the shipyards that build them are in large part explained by the vastly inflated cost of ships constructed in the United States. According to the Congressional Research Service, American-built coastal and feeder ships—the types of ships commonly used in domestic sea transport—cost between $190 and $250 million, whereas similar vessels constructed in a foreign shipyard cost about $30 million.

One unsurprising consequence of such stratospheric costs is a reluctance on the part of domestic shipping firms to invest in new ships, with U.S. seafarers forced to work aboard vessels that are significantly older than those found in other countries. Excluding tankers (these vessels were subject to a requirement in the wake of the Exxon Valdez oil spill that they be double-hulled by 2015, thus encouraging the purchase of new ships and decreasing their average age), the Jones Act fleet averages 30 years of age—fully 11 years older than the average age of a ship in the merchant fleet of other developed countries. For context, the maximum economic life of a ship in the world market is typically 20 years

International comparisons of specific ship types are even more eye-opening. Jones Act containerships, for example, average more than 30 years old. The international average is 11.5. The only two bulk ships in the Jones Act fleet average 38 years old, while the international average is 8.8. General cargo ships average 34 years of age compared to an international average of 25.2.

Struggling shipyards, a dwindling fleet of old ships, and fewer jobs are now the order of the day in the maritime sector. As Mark H. Buzby, head of the U.S. Maritime Administration, testified before Congress earlier this year, “over the last few decades, the U.S. maritime industry has suffered losses as companies, ships, and jobs moved overseas.” Also addressing members of Congress, one senior union official admitted that “the pool of licensed and unlicensed mariners has shrunk to a critical level.”

This is not a new story. During Operations Desert Shield and Desert Storm, the United States was so desperate for civilian mariners to crew transport vessels that it enlisted the services of two octogenarians and one 92-year-old. Its search for ships was equally frantic, resulting in two requests to borrow a ship from the Soviet Union—and two rejections. Notably, during this conflict a much larger share of U.S. military equipment and supplies was carried by foreign-flagged vessels (26.6 percent) than U.S.-flagged commercial vessels (12.7 percent).

Supporters of the Jones Act often claim the law is vital to assure a strong merchant marine capable of answering the country’s call in times of war or national emergency. Should the Jones Act be repealed, they warn that the maritime industry will enter a dangerous downward spiral. But the record clearly shows that their nightmare scenario, in fact, describes the status quo. It’s time for this law to go, or be significantly reformed.

Toward that end the Cato Institute has unveiled its Project on Jones Act Reform, which will feature a series of policy papers exposing the fallacies and realities of this archaic law. This first of these policy analyses, The Jones Act: A Burden America Can No Longer Bear, is now available and provides an overview of the law, its history, and myriad shortcomings. More such policy analyses will follow both this year and next, along with other commentary pieces about this failed law, so be sure to check back for the latest updates. 


On closer inspection of yesterday’s Janus v. AFSCME decision, the Supreme Court looks to have updated and clarified its decisional framework for addressing the age-old matter of stare decisis – deference to old precedents – a framework that largely mirrored Cato’s amicus brief in this landmark case. Properly understood, stare decisis doesn’t demand that courts blindly follow decisions that are no longer viable, but instead imposes a special duty to overturn faulty precedents in constitutional cases. The Janus majority both recognized and embraced this weighty responsibility.

Justice Samuel Alito’s decision set forth five important factors to consider when deciding whether to follow precedent: 1) “the quality of Abood’s reasoning”; 2) “the workability of the rule it established”; 3) “its consistency with other related decisions”; 4) “developments since the decision was handed down”; and 5) “reliance on the decision.” Although both owe much to Chief Justice John Roberts’s pithy concurrence in Citizens United, the similarities between the Janus factors and those laid out in Cato’s brief are striking.

Abood v. Detroit Board of Education (1977) was so poorly reasoned that, as the Court observed, proponents of upholding the case “implicitly acknowledge[d] its weaknesses by forwarding alternative justifications.” Chief among these justifications was the attempt to borrow legal rationales from Pickering, a case completely unrelated to Abood’s original reasoning. The Court found there to be “no good reason, at this late date, to try to shoehorn Abood into the Pickering framework,” and that “[e]ven if that were attempted, the shoe would be a painful fit.” But defenders of agency fees had little choice but to make this argument, since the two cases that Abood was actually supposed to be based on (Hanson and Street) both managed to avoid rendering a decision on First Amendment grounds. Cato’s brief conspicuously made these points, and the Court detected these same inherent flaws when deciding the case.

The Abood standard has also proven to be unworkable, with the distinction between chargeable and nonchargeable expenditures presenting the thorniest issue. Chargeable expenditures are those supposedly nonpolitical expenses that nonmembers could be validly forced to pay for under Abood, but in the context of public-sector unions, collective bargaining and political action are practically indistinguishable. Again the proponents of state-union compulsions advanced a self-defeating argument, with the Court observing that “[n]ot even the parties defending agency fees support the line that it has taken this Court over 40 years to draw.”

Next, what Cato’s brief recognized as one consideration the Court’s decision split into two, first considering the factual developments since Abood and then moving onto the case’s legal inconsistency with the overall body of First Amendment jurisprudence. As for the former, the Court took notice that Abood was decided “against a very different legal and economic backdrop” when “[p]ublic-sector unionism was a relatively new phenomenon.” Such considerations were again advanced by Cato, arguing that the Court should “look back on the period of time since the precedent was established and inquire ‘whether facts have so changed … as to have robbed the old rule of significant application or justification.’”

And regarding Abood’s place within the First Amendment canon, the Court once again found the decision to be “an anomaly,” commenting that it “particularly sticks out when viewed against our cases holding that public employees generally may not be required to support a political party.” While Cato’s brief instead chose to focus on the weakness of the labor peace rationale in justifying an infringement on individual’s free speech rights, the overall conclusion remained the same; as the great legal thinker Big Bird would have observed, “one of these things is not like the others.”

Finally, the Court paralleled Cato’s brief in adjudging that any reliance interests in Abood were insufficient to prevent the case from being overturned. While Cato argued both that there could be no valid reliance interests in the deprivation of First Amendment rights and that overruling Abood would impose no special hardship on labor contracts, the Court went even farther. It summarized the litany of holes in the counterargument thus: “the uncertain status of Abood, the lack of clarity it provides, the short-term nature of collective-bargaining agreements, and the ability of unions to protect themselves if an agency-fee provision was crucial to its bargain all work to undermine the force of reliance as a factor supporting Abood.”

As the Court has recognized for decades, stare decisis – at least in principle – “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Far from constituting a hindrance, the newly elucidated Janus framework has the potential to advance these noble objectives by providing both judges and practitioners with a stable, logical system for determining when adherence to the Constitution mandates abandoning erroneous precedent.

This was the first full term with the Court back at its “full strength” of nine justices, so all eyes were on Justice Neil Gorsuch to see how he would fit in – and how the Court’s internal dynamic and voting patterns would shift from what they were before Justice Antonin Scalia’s death in February 2016. While early reports, based on what turns out now to be unsubstantiated speculation, spoke of tensions between the newest justice and several of his colleagues, he quickly settled in and ended up writing many thoughtful opinions, including being assigned to write for the majority in several important cases (a rarity for a junior justice).

Cato filed in 15 merits cases on important issues ranging from free speech to separation of powers to criminal procedure. One of those got dismissed along the way because of legislative developments (United States v. Microsoft), leaving 14 opinions. (I’m including in that count two briefs filed by our project on criminal justice but not counting the one filed in Trump v. Hawaii because it was an immigration-policy brief which no Cato lawyers signed.) 

Improving on last year’s 9-4 performance, Cato achieved an 11-3 showing. Perhaps most importantly, we handily beat our biggest rivals, the federal government, which amassed an 11-15 record. (It’s an apples-and-oranges comparison, i know, because the government typically appears as a party, not simply amicus, and always participates in oral argument.)

Cato also effectively drew votes from across the judicial spectrum, winning 13 votes from Chief Justice John Roberts, 12 from Justice Elena Kagan, 11 from Justices Anthony Kennedy and Gorsuch, 9 from Justices Clarence Thomas, Stephen Breyer, Samuel Alito, and 7 each from Justices Ruth Bader Ginsburg and Sonia Sotomayor.

Here’s the breakdown, in the order the opinions arrived:

Winning side (11)Masterpiece Cakeshop v. Colorado Civil Rights CommissionCarpenter v. United StatesMurphy v. NCAACollins v. VirginiaNIFLA v. BecerraDigital Realty Trust v. SomersMinnesota Voters Alliance v. ManskyJanus v. AFSCME Council 31McCoy v. LouisianaLozman v. City of Riviera Beach; and Lucia v. SEC.

Losing side (3): Oil States Energy Services v. Greene’s Energy Group; Currier v. Virginia; and South Dakota v. Wayfair.

Next term doesn’t yet look like as exciting as this one was – though recall that several high-profile cases, including Masterpiece Cakeshop and the partisan-gerrymandering lawsuits – ended in fizzles. But still, come this fall we’ll see important cases on property rights, separation of powers, the nondelegation doctrine (!), and more. But of course before we get to next term, the summer will be occupied with the battle over the successor to Justice Kennedy, who announced his retirement hours after the Court announced its final opinions. 

I’ll have more to say on all this in future commentary, but if you’d like to learn more about these cases/trends and the views of Cato-friendly scholars and lawyers, register for our 17th Annual Constitution Day Symposium, which will be held September 17. That’s also when we’ll be releasing the latest volume of the Cato Supreme Court Review, the editing of which will consume the parts of the summer not spent analyzing Kennedy, his possible successors, and the eventual nominee.

The Supreme Court upheld the legality and constitutionality of President Trump’s travel ban this week, but it had already allowed the ban to go fully into effect on December 4, pending its final decision. We now have five full months of data from the State Department to see how the ban has affected immigration and travel from the countries that the ban targeted. Overall, we have seen a dramatic decline in visa approvals, affecting most notably Iranians and Yemenis.

Figure 1 shows the difference in the average monthly visa issuances for temporary visitors (i.e. nonimmigrants) and immigrants (i.e. permanent residents) for the seven countries affected by the final travel ban order for fiscal year 2016 compared to the first five months of calendar year 2018 (after the ban took effect). Figure 1 doesn’t include Venezuela because the order exempted all Venezuelans except for a few government officials. Chadians are included, although their restrictions were lifted on April 11, 2018. There was an 86 percent decline in the average monthly approvals for temporary visitors from the seven countries, and a 93 percent decline in the average monthly approvals for new permanent residents.

Figure 1: Average Monthly Visa Issuances For Nationals of Travel Ban Countries

86% Fewer Visas for Temporary Workers, Tourists, and Students

Figure 2 shows the monthly issuances for temporary (i.e. “nonimmigrant”) visas for the seven nationalities singled out by the final order from March 2017 through May 2018, with the monthly averages for the first five months of fiscal year 2017 and the average monthly issuances for fiscal year 2016 (monthly figures are unavailable prior to March 2017). As it shows, the Supreme Court’s decision to lift the injunction in December led to a massive decline in visas, particularly for Iranians.

Figure 2: Monthly Nonimmigrant Visa Issuances For Nationals of Travel Ban Countries*

Table 1 shows the monthly averages for each nationality covered under the final travel ban. All nationalities saw visa issuances decline 86 percent. Iranians saw the biggest decline of 91 percent. There were 1,631 fewer temporary visas issued for Iranians on average during the months in 2018 than during 2016. This accounted for 62.7 percent of the total decline in temporary visas for all of the travel ban countries.

Table 1

93 Percent Fewer Visas for Permanent Immigrants

Figure 3 shows the monthly issuances for immigrant (i.e. permanent) visas for the seven countries singled out in the final travel ban order. Like Figure 2, it shows sharp declines following the Supreme Court decision in December 2017 to allow the ban to go into full effect before its final decision this week.

Figure 3: Monthly Immigrant Visa Issuances For Nationals of Travel Ban Countries*

Table 2 provides the monthly averages for each nationality covered under the final travel ban. All nationalities saw immigrant visa issuances decline 93 percent. Yemenis saw the biggest percentage decline of 98 percent, and the largest absolute decline of more than 1,000 fewer visas per month in 2018. Yemenis accounted for more than half the decline in immigrant visas issued to nationals of the travel ban from 2016 to 2018.

Table 2

Overall, the travel ban has had significant effects on immigration and travel from the affected countries. As I’ve noted before, however, the travel ban fits into a larger swathe of policies intended to reduce Muslim immigration and travel to the United States. These policies have worked. Muslim immigration, travel, and refugee admissions to the United States have plummeted under this administration. With the Supreme Court having approved this policy approach, it is likely that similar policies will appear in the future.

Today’s big win at the Supreme Court for free speech in the public-sector union context, which Ilya summarizes below and Wally expands on, has implications beyond protecting public employees from having to pay “agency fees” to support union activities they may oppose. Writing for the Court in Janus v. AFSCME, Justice Alito touches on that when he notes that the ascendance of public-sector unions, which originated in Wisconsin in 1959, “has been marked by a parallel increase in public spending.” While “not all of that increase can be attributed to public-sector unions,” he continues, “the mounting costs of public-employee wages, benefits, and pensions undoubtedly played a substantial role.” And he adds, citing the brief for the state of Michigan, that “unsustainable collective-bargaining agreements have also been blamed for multiple municipal bankruptcies.” Detroit comes to mind, of course.

The connection, such as it has been, between public-sector unionization and increased public spending is nicely summarized by Cato adjunct scholar Richard Epstein in a piece he wrote just before oral argument in the Janus case. Unlike private-sector unions, he writes, pubic-sector unions operate in a context free from market discipline. For the services those unions offer state and municipal employees,

the state usually operates as the sole supplier. Hence the corresponding power of the union is extraordinary, and it is made even more powerful because legislators elected with strong union support let powerful union forces sit on both sides of the bargaining table. The effort to limit union power by forbidding strikes and compulsory arbitration offers no solution to the problem: Unions can still demand top dollar and unsustainably large pensions, which helps explain why so many state and local pension funds are in such desperate shape. A decision that lets dissident workers out from under the union thumb is an important counterweight to these dangerous manifestations of union power.

It’s no accident, therefore, that a state like Illinois, from which Janus came to the Court, has a bond rating just above junk status—with no way in sight to address the parlous state of its finances. It’s too early to tell just how today’s decision will impact public-sector unions—Justice Alito notes that they continue to thrive in the 28 states that now prohibit union fees. But as recent experience in a state like Wisconsin suggests, union membership will drop, along with union funds. And the need to attract dues-paying members may discipline union demands.

Justice Anthony Kennedy’s retirement announcement was not unexpected but is still major news in the direction and leadership of the country.

Kennedy spent more than 30 years on the Court and for much of that time, particularly the last decade, has been the deciding or “swing” vote on so many controversies, ranging from campaign finance to gay marriage, the Second Amendment to abortion. Throughout that time, his judicial philosophy couldn’t be pigeonholed as “conservative” or “liberal,” and indeed is hard to describe in conventional terms. Most terms he agreed with Cato’s position more than any other justice and so he’s also sometimes known as the Court’s “libertarian” justice. There’s some truth to that, even though he often reached results that libertarians liked for reasons that sounded in dignity and civility rather than classical-liberal or natural-rights theory.

Kennedy was the strongest defender of the First Amendment that the Court has probably ever seen, whether in the context of political or artistic expression made by students, workers, or any citizens. He was also a careful guarantor of the Constitution’s structural protections for liberty. Whether federalism, the separation of powers, or any of the other “less sexy” parts of constitutional design, he recognized that they were there as a means to protect and secure our liberties, not as a dry technical exercise.

By retiring now, Kennedy hands President Trump a golden opportunity to put his stamp on the Court. All of the people on the White House list of 25 potentials could be considered more reliably conservative than he has been—which means that Chief Justice John Roberts will become the median justice. Given that the Democrats pushed the Republicans to eliminate the filibuster, any Trump nominee should be able to be confirmed without too much fuss (assuming the most moderate GOP senators approve). That will have a significant impact on all the sorts of cases where Kennedy joined the more liberal justices to form a 5-4 majority—of which there were actually none this term.

In short, it was a momentous term that was made all the more momentous by this announcement.

In her dissent on behalf of the four liberals in today’s Janus v. AFSCME Council 31, Justice Elena Kagan outlined the so-called free-rider problem that has been said to justify requiring public employees to pay union fees [citation to 1991 paper omitted]:

Employees (including those who love the union) realize that they can get the same benefits even if they let their memberships expire. And as more and more stop paying dues, those left must take up the financial slack (and anyway, begin to feel like suckers)—so they too quit the union. And when the vicious cycle finally ends, chances are that the union will lack the resources to effectively perform the responsibilities of an exclusive representative—or, in the worst case, to perform them at all. The result is to frustrate the interests of every government entity that thinks a strong exclusive-representation scheme will promote stable labor relations. 

The free-rider argument is a weak one on its own terms, even if you leave aside Justice Samuel Alito’s observation for the majority that free-rider economic arguments are ordinarily not expected to override First Amendment concerns. To begin with, unions not only still exist in the U.S. states (a majority) that have enacted “right to work” laws curbing agency fees, but sometimes wield much political clout. Janus does not spell a death knell for public unions that provide their members with value. 

Moreover, as Cato scholars Trevor Burrus and Reilly Stephens have pointed out, European unions have developed along somewhat different institutional lines: they rely less on models of exclusive bargaining representation and more on collective social representation and solidarity (often linked to direct involvement in provision of fringe benefits and other valued services).  Far from being weakened by their departure from the “American” model of exclusive collective representation, they seem to be in many ways more formidable than are American unions.

Expect state and local governments that are closely allied with the political interests of unions to scramble now to enact measures meant to evade Janus. Here is a description of what just happened in California, from Joel Fox at the political site Fox and Hounds:  

SB 866 would cement union control over access to individual employee decisions on whether to continue paying union dues, should mandatory agency fees be deemed unconstitutional. …Key elements of the bill include:

  • Requiring for any school teacher, state firefighter, college professor, prison guard, environmental regulator, or any of the hundreds of other classes of state and school employees who may wish to reduce or eliminate their mandatory union dues, that they make this request exclusively to the union rather than to their employer.
  • Unions would not be required to provide the actual authorizations for dues deduction to the school board or State Controller, but instead would merely certify to the public agency’s payroll department as to who is or is not paying union dues. Public employers must rely on the unions’ representations regarding dues deductions.
  • Unions would indemnify public employers over claims made by individual employees for deductions made in reliance on union representations.
  • Employees would be prohibited from contacting their employer directly regarding union dues deductions.
  • A public employer may not send mail or email to its employees, or provide an oral presentation, about their right to join or refrain from joining a union, unless the employer facilitates delivery of similar messages from the union.
  • Government employee unions currently have access to orientation sessions for new employees. This bill would limit disclosure of the date, time and place of these sessions to the employees and unions only. Members of the public and taxpayers would be kept in the dark about meetings of public officials.

If signed by Governor Brown, the measure would take effect immediately.

The California bill was rushed through both houses in quickstep fashion as a budget trailer bill and was enrolled June 19.

In a victory for the First Amendment rights of public-sector workers across the country, the Supreme Court today found that requiring nonmembers to subsidize public-sector union activities violates the Constitution. This ruling of course follows the 4-4 split in a similar case two terms ago, where Justice Scalia would have cast the Court’s deciding vote. The addition of Justice Gorsuch thus made this outcome almost inevitable, and as expected he joined Justice Alito’s opinion recognizing the inherent unworkability of Abood v. Detroit Board of Education (1977). Today’s decision rejects that precedent’s arbitrary line-drawing between public-sector unions’ collective-bargaining and political activities, recognizing instead that efforts in both areas are inherently political because each directly influences government policy. While the Court generally avoids disturbing precedent, it has a duty to correct its own errors, particularly in cases where the difficulty of amending the Constitution leaves no other way to reinstate bedrock principles. The Abood decision was manifestly mistaken. Today’s decision at long last remedies this violation of all workers’ rights to the freedom of speech and association.

Sen. Dianne Feinstein has introduced the Bot Disclosure and Accountability Act, a proposal to regulate social media bots in a roundabout fashion. The bill has several shortcomings.

Automation of social media use exists on a continuum, from simple software that allows users to schedule posts throughout the day, to programs that scrape and share information about concert ticket availability, or automatically respond to climate change skeptics. Bots may provide useful services, or flood popular topics with nonsense statements in an effort to derail debate. They often behave differently across different social media platforms; Reddit bots serve different functions than Twitter bots.  

What level of automation renders a social media account a bot? Sen. Feinstein isn’t sure, so she’s relinquishing that responsibility to the Federal Trade Commission:

The term ‘‘automated software program or process intended to impersonate or replicate human activity online’’ has the meaning given the term by the [Federal Trade] Commission

If Congress wants to attempt to regulate Americans’ use of social media management software, they should do so themselves. Instead, they would hand the hard and controversial work of defining a bot to the FTC, dodging democratic accountability in the process. Moreover, the bill demands that the FTC define bots “broadly enough so that the definition is not limited to current technology”, virtually guaranteeing initial overbreadth.

While the responsibility of defining bots is improperly passed to the FTC, the enforcement of Feinstein’s proposed bot disclosure regulations is accomplished through a further, even less desirable delegation. The Bot Disclosure and Accountability Act compels social media firms to adopt policies requiring the operators of automated accounts to “provide clear and conspicuous notice of the automated program.” Platforms would need to continually “identify, assess, and verify whether the activity of any user of the social media website is conducted by an automated software program”, and “remove posts, images, or any other online activity” of users that fail to disclose their use of automated account management software. Failure to reasonably follow this rubric is to be considered an unfair or deceptive trade practice.

This grossly infringes on the ability of private firms, from social media giants like Facebook to local newspapers that solicit readers’ comments, to manage their digital real-estate as they see fit, while tipping the balance of private content moderation against free expression. Social media firms already work to limit the malicious use of bots on their platforms, but no method of bot-identification is foolproof. If failure to flag or remove automated accounts is met with FTC censure, social media firms will be artificially incentivized to remove more than necessary.  

The bill also separately, and more stringently, regulates automation in social media use by political campaigns, PACs, and labor unions. No candidate or political party may make any use of bots, however the FTC defines the term, while political action committees and labor unions are prohibited from using or purchasing automated posting software to disseminate messages advocating for the election of any specific candidate. It is as if Congress banned parties and groups from using megaphones at rallies. Would that prohibition reduce political speech? No doubt it would. How then can the prohibitions in this bill comport with the constitutional demand to make no law abridging the freedom of speech? They cannot.

Feinstein’s bill attempts to automate the process of regulating social media bots. In doing so, it dodges the difficult questions that attend regulation, like what, exactly, should be regulated, and foists the burden of enforcement on a collection of private firms ill-equipped to integrate congressional mandates into their content moderation processes. Automation may provide for the efficient delivery of many services, but regulation is not among them. Most importantly, the bill does not simply limit spending on bots. It prohibits political (and only political) speech by banning the use of an instrument for speaking to the public. Online bots may worry Americans, but this blanket prohibition of speech should worry us more.

Yesterday, the Supreme Court ruled that credit card provider American Express’ long-standing policy of including anti-“steering” clauses in its contracts with merchants was not anti-competitive.

Steering is the practice whereby merchants discourage customers from paying with comparably high-cost cards like Amex and to use Visa or Mastercard instead. Importantly, anti-steering agreements do not limit merchants’ ability to favor debit cards or cash in their dealings with customers. The majority opinion, drafted by Justice Clarence Thomas, argues that there was no evidence of consumer harm in the form of higher prices or reduced output as a result of Amex’ anti-steering requirements.

The Court notes that the credit-card market is a market for transaction services and is two-sided, involving two distinct and interdependent sets of customers: merchants (who sell goods and pay fees to credit-card providers) and buyers (who use credit cards to pay for merchants’ goods).

Two-sided markets require a somewhat more sophisticated analysis in antitrust cases because of the interdependence of each side. For example, in a one-sided market, increasing merchant fees might be regarded as evidence of an abuse of monopoly power. In a two-sided market, such a fee increase can in fact be pro-competitive if it leads credit-card providers to offer better service to the other side of the market (buyers) thus increasing their purchases from merchants.

The peculiarities of two-sided markets have been noted by a long line of economists, including the 2014 Nobel Prize laureate Jean Tirole. His analysis, among others, was cited by Justice Thomas in his opinion.

Indeed, the evidence suggests that competition in the credit-card market is thriving. Take-up of cards has boomed since the 1970s. There is an endless variety of offerings among the various providers, with different (or no) annual charges, a diverse menu of rewards programs, and of course a range of interest rates on outstanding balances. In March, Amex in fact announced that it would cut its merchant fees to better compete with lower-cost providers. Since 2004, Amex fees have dropped by 10 percent.

However, even allowing that anti-steering agreements are not anti-competitive, could it be true nonetheless that anti-steering agreements hurt particular groups of consumers? Brookings’ Aaron Klein thinks so. In a piece published in the wake of yesterday’s ruling, he argues that “[the U.S.] payment system […] rewards the wealthy while penalizing the poor” and “functions as a hidden method of increasing income inequality.”

Klein’s argument is that anti-steering agreements lead merchants to increase prices. But because only Amex cardholders secure the countervailing benefits –  in the form of rewards programs and an increased ability to use their cards in daily purchases – and because Amex cardholder incomes tend to be higher than average, there is a regressive impact on lower-income households. They get the higher prices induced by Amex fees but cannot share in the benefits.

Leave aside for a moment that anti-steering agreements, as Justice Thomas observed, only apply to credit cards and not to other forms of payment, which means that merchants can in fact price-discriminate by setting minimum purchase thresholds and surcharges for using credit cards (as many do). Even ignoring this possibility, which Klein leaves unacknowledged, his claim of regressivity is not as straightforward as might at first be apparent, for several reasons.

1. Merchants’ decision to sign anti-steering agreements is voluntary.

Merchants do not forcibly sign anti-steering agreements with Amex. They only do so if they believe it is in their benefit to accept Amex cardholders, which is a function, first, of the fees charged by Amex compared to other card networks, and, second, of the share of purchases paid for with Amex cards which would not happen if the merchants refused to take Amex.

The emphasis is important because many cardholders multi-home, meaning that they hold Visa or Mastercard as well as Amex for instances in which one might not be accepted. My dry cleaner does not take Amex but that has not yet deprived her of my custom.

Thus, merchants will only agree to the anti-steering conditions if the income earned from Amex purchases which could not otherwise be earned exceeds the cost of higher Amex fees. Many merchants will find accepting Amex worthwhile, but some will not. Indeed, there are still many outlets where all credit cards but Amex (and possibly Discover) are accepted.

In a competitive market with many providers and low switching and search costs (all of which broadly characterize most American retail markets), merchants will ask for the same price, adjusted for convenience factors such as the acceptance of Amex cards. Those who buy at Amex-positive outlets will pay a premium for it, while those who forgo the opportunity to buy with Amex can opt for other providers, who – other things being equal – will offer lower prices.

2. Amex cardholders and non-cardholders are different people, buying different things.

As Klein’s piece notes, lower-income households tend to have fewer credit card options, if any, than higher-income households. But to infer that the worse-off are therefore subsidizing the better-off because all pay the same price, but only cardholders get the rewards, is one simplification too many.

Households with different incomes differ not only in their likelihood of holding an Amex card, but also in the kinds of stores they patronize and the kinds of products they buy. This means that merchants have some means to make Amex cardholders internalize the price externality they would otherwise impose on non-cardholders, by passing on the Amex fees mainly, or exclusively, to those products that Amex cardholders buy.

Any pass-through will be crude because there is always overlap between the products bought by each of the two groups, but the homogeneous price increase for all customers posited by Klein is unlikely to reflect merchants’ reaction in practice.

3. There may be progressive redistribution among Amex cardholders.

Klein objects to the supposedly regressive impact of anti-steering agreements on those who do not hold Amex cards. But the existence of Amex rewards programs made possible by the anti-steering rules may be progressive, that is, it may redistribute benefits from higher-income to lower-income cardholders.

To see how this can be the case, consider that Amex cards tend to come with a “welcome bonus” involving, usually, a disproportionate amount of rewards (air miles, or gas points, or something else) for the first $1,000 spent on the card. These rewards are presumably as costly for Amex to give as any other rewards, so that the welcome gift must be subsidized from Amex’ ongoing business. The more households spend on their card above and beyond the first $1,000, the more they are subsidizing other cardholders. Furthermore, because card expenditure is broadly correlated with income, it is plausible that higher-income cardholders subsidize lower-income cardholders, for whom the first $1,000 are a bigger share of lifetime card expenditure.

This redistribution would offset the regressivity of steering restrictions on other buyers, to the extent there is any.

4. Innovation depends on a share of initial customers’ paying higher prices.

Innovations are always costlier at first. F.A. Hayek noted in The Constitution of Liberty that, without intending it, the rich who can afford new innovations help to make them progressively more accessible by encouraging investment and competition in the provision of the innovative good or service. From the personal computer to the smartphone to the transatlantic passenger flight, modern life is rich with examples of such gradual expansion in people’s access to new goods and services.

Credit cards are no exception. Justice Thomas noted that, since the 1950s when credit cards were first introduced, merchant fees have dropped by more than half. Because of the network effects characteristic of two-sided markets, every decrease in fees has likely disproportionately increased the amount of merchants accepting cards and the number of cardholders. The result is higher welfare for all and more widely shared affluence.

But this virtuous cycle depends on the ability of competitors to offer different price and quality options to prospective customers. Amex’ business model of higher merchant fees in exchange for more generous rewards programs is one form that such competition can take.

Klein concludes his piece by noting that financial technology can resolve the “inefficiencies of the current payment system [which] cry out for new financial technological solutions.” In this he is doubtless correct, if the history of financial innovation is anything to go by. Yet, to blame American Express for the remaining imperfections in the payment system would not just be wrong — it would be counterproductive.

[Cross-posted from]

In a decision that many First Amendment faithful might find too good to be true, in NIFLA v. Becerra, the Court delivered a solid victory for freedom of speech and against government agents who would force people to speak state-approved messages. Despite the hype to the contrary – and activists from both sides on the courthouse steps – this was NOT an abortion case.  The Court was able to separate the First Amendment principles at stake from that fraught subject.

Reiterating its previous rulings on similar provisions controlling speech based on its content, the Court held that any content-based speech regulation – in this case a California law that compels delivery of particular scripts regarding the availability of abortion services (but that could equally be applied to speech about adoption and prenatal services) – is presumptively unconstitutional. To regulate the content of speech, the government must show that it has the most important of reasons for regulating the speech in question, and that it is only prohibiting or mandating speech to the extent necessary to achieve that highly important and specific purpose. California failed to show that “compelling” interest, namely why it was necessary to single out pro-life pregnancy centers and conscript them into delivering the state’s message about low-cost abortion services.

Curiously, instead of showing why its law might be able to survive strict judicial scrutiny, California argued for an almost nonexistent level of scrutiny based on the clinic employees’ status as “professionals.” It also argued that the script the pro-life centers were forced to recite conveyed merely “factual” information. Justice Clarence Thomas, in his majority opinion, explained that there is no separate category of “professional speech” that deserves lesser First Amendment protection – and attempts by the U.S. Court of Appeals for the Ninth Circuit to create and enshrine such a category were misplaced and wrong.

As we argued in our brief, if government had a freer hand to commandeer “professional speech,” then a vast amount of speech could be compelled based on nothing more than an unsupported whim that the information might be “helpful” to those who hear it. Just like describing the California law as a regulation of “professional speech” couldn’t save it, neither could arguing that the disclosures were merely factual and uncontroversial, instituted to combat consumer misinformation. Even under that deferential standard, Justice Thomas wrote that compelled speech cannot be “unjustified or unduly burdensome.” California offered nothing more than hypotheticals to justify the need for its law, but the font size and number of languages it requires are not just burdensome, but threaten to drown out any message the crisis-pregnancy centers may want to convey.

This was an absolute win for the First Amendment. Not only did the Court refuse to create a new category of speech and designate it to receive less than full constitutional protection, it also repudiated the idea that the deferential standard the Court established in Zauderer v. Office of Disciplinary Counsel (1985) – to allow certain compulsions of purely factual information in a commercial context – can save compelled disclosures that impose a burden on the speaker and are anything less than uncontroversial.

In his brief concurrence to the Court’s opinion today in Trump v. Hawaii, the decision Ilya discusses just below, Justice Kennedy adds an important point about limits on presidential power, even where the president has wide discretion, as here. Thus, he writes:

There are numerous instances in which the statements and actions of Government officials are not subject to judicial scrutiny or intervention. That does not mean those officials are free to disregard the Constitution and the rights it proclaims and protects.

And he adds:

Indeed, the very fact that an official may have broad discretion, discretion free from judicial scrutiny, makes it all the more imperative for him or her to adhere to the Constitution and to its meaning and its promise.

Put plainly, broad discretion does not afford the president access to any means toward the ends for which discretion is given. Kennedy illustrates the point with First Amendment religion and speech guarantees. He could also have invoked the Korematsu case the Court raised, as Ilya mentions. There the president enjoyed wide discretion to conduct the nation’s foreign affairs during World War II, but the means he employed in that case—incarcerating innocent Japanese-Americans—ran afoul of the Constitution’s due process guarantees, thus properly requiring judicial intervention in an area otherwise beyond the Court’s authority.

The Supreme Court upheld President Trump’s travel ban in a 5-4 decision. The travel ban undermines a core principle of the U.S. immigration system since 1965: that the law will not discriminate against immigrants based on nationality or place of birth. The president has rewritten our immigration laws as he sees fit based on the thinnest national security pretext, setting a dangerous precedent for the future.

The ban entirely lacks any reasonable basis in the facts. Nationals of the targeted countries have not carried out any deadly terrorist attacks in the United States, and they are also much less likely to commit other crimes in the United States. Nor are their governments less able or willing than others to share information or adopt certain identity management protocols. 

We now know that the report that supposedly provided the detailed, “extensive,” and “thorough” analysis of every country in the world was just 17 pages, giving barely a tenth of a page to summarize facts relating to 200 countries. It was great to see Justice Sotomayor raise this fact in her dissent (p. 19), possibly as a result of a letter that Cato adjunct Ilya Somin sent to the court summarizing a post that I wrote on the subject.

As a matter of policy, no president should be given such broad power to determine immigration law. While the travel ban currently affects only a small share of immigrants and foreign travelers, all legal immigrants should be concerned that the president will wield this power against them next. Congress should immediately intervene to preserve its power to determine immigration policy.

It’s no surprise that the Supreme Court allowed Travel Ban 3.0 to remain in place, particularly given that the justices allowed Ban 2.0 to go into effect a year ago and this one last fall. This third version specifically carves out those with green cards, provides for waivers for those with special cases (family, medical emergencies, business ties, etc.), and also was tailored based on national-security considerations, to which the Court typically defers. One can disagree, as I do, with some of the policy judgments inherent in this executive action, but as a matter of law, the president – any president – gets a wide berth here.

The Court considered the president’s statements regarding this policy but ultimately had to apply a deferential standard; given the legitimate justifications explicitly set out in the “proclamation” announcing Travel Ban 3.0, the Court could not preference campaign rhetoric and tweets over legal documents in this context. “While we of course ‘do not defer to the Government’s reading of the First Amendment,’” Chief Justice John Roberts’s majority opinion says, citing Holder v. Humanitarian Law Project (2010), “the Executive’s evaluation of the underlying facts is entitled to appropriate weight, particularly in the context of litigation involving ‘sensitive and weighty interests of national security and foreign affairs.’”

Moreover, Congress set out a very deferential statutory regime. The majority opinion explains:

By its plain language, §1182(f) grants the President broad discretion to suspend the entry of aliens into the United States. The President lawfully exercised that discretion based on his findings—following a worldwide, multi-agency review—that entry of the covered aliens would be detrimental to the national interest. And plaintiffs’ attempts to identify a conflict with other provisions in the INA, and their appeal to the statute’s purposes and legislative history, fail to overcome the clear statutory language.

As the chief justice goes on to say, the dissenting justices don’t even try to make a case on that score.

In short, we can and should debate this or any other aspect of the Trump administration’s immigration policy, but not all political disputes can or should be resolved in the courts.

One final note: the majority opinion’s penultimate page takes issue with Justice Sonia Sotomayor’s invocation of Korematsu v. United States in her dissenting opinion:

Whatever rhetorical advantage the dissent may see in doing so, Korematsu has nothing to do with this case. The forcible relocation of U. S. citizens to concentration camps, solely and explicitly on the basis of race, is objectively unlawful and outside the scope of Presidential authority. But it is wholly inapt to liken that morally repugnant order to a facially neutral policy denying certain foreign nationals the privilege of admission.

Most importantly, “Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and—to be clear—’has no place in law under the Constitution.’” (citing Justice Robert Jackson’s dissent). This isn’t technically an overrule because that question wasn’t presented, but I would still advise lawyers not to cite Korematsu as good law in their briefing.