For the first time in a long time, we have a president who respects Congress’s lawmaking primacy. The problem is that Congress doesn’t respect itself.

Somewhat surprisingly given his role in the pen-and-phone Obama administration, Joe Biden has repeatedly signaled the constitutional limits of his office. As president-elect, he told civil rights leaders that progressive calls for unilateral executive action are “way beyond the bounds” of the Constitution. And while signing a spate of orders during his first days in office, the president emphasized “there’s nothing new that we’re doing here”—his point being that he was simply rolling back Trump’s executive initiatives, not usurping congressional authority.

Biden’s evident reluctance to make law is a refreshing break from modern presidential practice. Obama famously resorted to expansive interpretations of executive discretion to bypass lawmakers, while Trump adopted all the trappings of an imperial president, including the declaration of a bogus emergency to fund a border wall beyond what Congress was willing to provide.

The reason for Biden’s restraint is obvious: He spent his adult professional career in Congress. Given that personal history, it’s no wonder he’s sensitive to presidential overreach, which invariably diminishes the legislature.

What is far less obvious is why Congress has rejected the president’s message of congressional empowerment. Indeed, leading lawmakers are more gung-ho on presidential authority than the president!

In late January on The Rachel Maddow Show, for example, Senate Majority Leader Chuck Schumer urged Biden to “call a climate emergency,” because “he could do many, many things under the emergency powers of the president that he can do without legislation.”

On multiple levels, Schumer’s request is bizarre. For starters, his statement defies constitutional logic. He is the Senate Majority Leader. If Schumer wants climate policy, wouldn’t passing legislation make more sense? Instead, he’s emphasizing what the president can do “without legislation.”

More broadly, Schumer is being transparently hypocritical. Back when Trump abused the president’s emergency powers to bypass Congress, Schumer’s floor speech channeled the Founding Fathers in expressing his outrage. Now, he’s a cheerleader for the same constitutional harm. He had it right the first time.

Economist Bob Lawson writes:

I have yet to see an argument for wearing masks (and distancing) now that doesn’t apply literally at all times. If you accept that masks have some effectiveness against spreading diseases, which seems reasonable, why should they not always be required? COVID-19 maybe 10x worse than say the flu and maybe 100x worse than other infectious diseases (even common colds can kill) but these diseases kill too. If masks are morally required now, why not before, and why not forever more?

Probably lots of people are wondering the same thing.

There is an argument for wearing/​requiring masks now that does not apply at all times. It is that COVID-19 may have increased the benefits of masking to the point where the benefits of broader masking now exceed the costs. That rationale may apply now but may fail to apply at some point in the future if the benefits of masking falls.

We don’t usually think about masking and other infection‐​control measures in terms of supply and demand curves, because these activities do not involve economic exchanges. But that framework provides the clearest way to think about when people should adopt such measures. It doesn’t provide a specific answer. But it tells us the optimal quantity of masking is the point at which marginal cost equals marginal benefit.

Masking is a service with both costs and benefits. Some person‐​minutes of masking are low‐​cost. Other person‐​minutes of masking are very costly. When we assemble these person‐​minutes in order of cost, they form a marginal‐​cost/​supply curve.

The tricky part is the benefits. Since masking involves positive externalities, the demand curve (which reflects willingness to pay) is not the same as the marginal‐​value curve (which reflects total social benefit). The marginal‐​value curve is (much) higher than the demand curve, which is another way of saying the value of each person‐​minute of masking is greater than what anyone is willing to pay you to do it. That’s a pity, because the total‐​social‐​value/​marginal‐​value curve is much harder to observe than the demand curve.

An attorney recounts how her client, the victim of a shooting, had his smartphone taken while he was unconscious in the hospital. An activist describes how his smartphone “vanished” during the Occupy Wall Street protests.

The perpetrator in these cases? The New York City Police Department.

The NYPD seized 55,511 cellphones last year, according to a disclosure report released yesterday. Most likely due to the pandemic, this number is actually markedly lower than the roughly 92,000 phones they seized in 2019. But another apparent consequence of the COVID era is that far fewer people jumped through the regulatory hoops necessary to get their phones back, meaning police kept nearly 40 percent of the phones taken in 2020.

What’s going on? Well, many police can legally take your personal belongings during the course of an interaction, and they don’t have to return them. I don’t mean “police can take your belongings if you are charged with a crime.” In New York, 85 percent of seizures aren’t related to any criminal charge at all. The NYPD is required to cite one of five justifications for taking your property, and, predictably, civil forfeiture and contraband are among the most common. But New York police also have the authority to take property under the pretense of seizing evidence pursuant to an investigation or arrest, and that property stays in the city’s possession even if no charges are ever brought. This is the pretext the NYPD has used to take phones from shooting victims, activists, and thousands of others within their jurisdiction.

Of course, this practice isn’t just limited to New York. For example, during the height of the Black Lives Matter movement last year, police in Richmond, VA conducted targeted seizures of smartphones from activists. But what makes New York’s system so interesting is that, following a class action lawsuit from the Bronx Defenders settled in 2018, we now know more about how the NYPD’s convoluted process of property seizures works—and how, ostensibly, people are supposed to get their property returned.

While the settlement agreement didn’t end the NYPD’s practice of seizing smartphones, it did curb a few of its worst excesses. For instance, the city previously required claimants to present two forms of ID in order to get their property back—even if police had seized the owner’s driver’s license. The settlement agreement puts strict limitations on seizure of driver’s licenses and cuts the ID requirement down to one.

Despite these changes, the process to get your property back once it’s been seized as evidence is still maddeningly difficult. First, you’ll need to hang on to the property voucher the NYPD is now required to provide you when they take your property. Then you’ll need to obtain a letter from the District Attorney authorizing the release of your items. And getting this letter isn’t easy: you’ll have to fill out a form from the DA’s office, which then has 15 days to respond. It’s only at this point that the DA has to identify some corresponding investigation or criminal proceeding in order to continue holding your property – but this still doesn’t require an actual charge. If the DA says no, you can request a review of the decision from another DA, or try again later. But if the DA says yes, then you can reclaim your property by presenting your voucher, the release form, and a valid ID to the NYPD property clerk.

The ease with which police can take your smartphone and the difficulties imposed to get it back are emblematic of why people are so mad at police: it’s one more way in which the state can inflict disproportionate harm on citizens while making a mockery of due process. As political philosophers from Locke to Rawls have recognized, citizens of a free society don’t willingly submit themselves to institutions that are inherently unfair and unjust. Allowing police to take people’s personal property subject only to the barest of restrictions undermines faith in a central pillar of government at a time when it’s already in decline.

Contrast our system to Germany’s, where evidentiary seizures are governed by the “principle of proportionality.” The more serious the offense, the more leverage German police have to seize a person’s property. But such seizures always require weighing the worth of property as evidence against its worth to the owner. Some items, like medical records or family correspondence, can almost never be seized. Germany also has a streamlined process for returning seized property. Unless the item in question was used to commit the crime itself, it’s the responsibility of the public prosecutor’s office to ensure its return to the last person in custody at the end of the relevant criminal proceedings.

Yet appallingly, the 21,660 unclaimed phones that New York City took from citizens last year will wind up being auctioned. It’s not like the NYPD needs that money: those proceeds wouldn’t even put a dent in the 10.9 billion dollars the city spent that year to fund their police force.

But police require little motivation to take smartphones when there’s little consequence for doing so, and the rampant seizures appear to be yet another symptom of America’s near‐​zero‐​accountability policy for law enforcement. In Germany, the state bears the burden of ensuring seized items are returned undamaged. But New York places the responsibility for property returns on the person whose items were taken, and of course, any lawsuit against individual officers for unlawfully seized property faces the high hurdle of qualified immunity.

If we are going to allow police to seize personal property at all, we should insist that the government be fully responsible for its safekeeping and return. Taking someone’s property without the intent to return it is usually called theft—isn’t that what we pay police to prevent?

Lachlan Mersky contributed to the development of this article. Lachlan is a student at the University of Pennsylvania, where he is President of Penn for Liberty. He is currently interning with the Cato Institute’s Project on Criminal Justice.

The Washington Post reported last month on the early demise of the EPA scientific data transparency rule from procedural irregularities. The rule was less than three years old.

The rule sounds perfectly reasonable. It would have required the Environmental Protection Agency to use scientific research when setting pollution exposure standards only if the original data were publicly available, allowing other researchers to examine and replicate findings.

Increased transparency in data used in empirical research and the facilitation of replication of studies are like mom and apple pie. In an ideal world, such practices are the very essence of the scientific method. In practice, academic journals in many disciplines already require that data used in empirical and experimental work be available for replication.

The EPA data in question, studies on the health impacts of pollution, do include confidential health information. But researchers across a wide swath of disciplines have found ways to release similar data while still shielding the identities of people included in their studies. The International Committee of Medical Journal Editors, no strangers to the limitations of data that include personal information, affirmed their commitment to responsible data sharing.

But the struggle over transparency in environmental research used by the EPA isn’t really about transparency. It is the latest battle in a decades-long war over the appropriate level of clean air exposure standards. On one side, environmental and public health advocates argue that pollution standards should be lowered, primarily based on the results of two studies. On the other side, Republicans and the Trump administration contended that the two studies are flawed and that EPA standards should be maintained at their current level.

The staggering cost of child‐​care – especially in high cost of living areas such as the District of Columbia – is well known. Well‐​intentioned regulations often drive up these costs without materially improving the quality of care, but new legislation proposed by Rep. Nancy Mace (R-SC) in the House of Representatives and Senator Mike Lee (R-UT) seeks to undo one of the most ham‐​fisted requirements in the District: that child‐​care providers must have a degree.

In December 2016 the DC City Council adopted new rules establishing minimum education requirements for the staff of child‐​care facilities. Councilmembers argued that a 2015 report from the National Academies showed child‐​care workers falling behind new developments in early childhood development and education. The new rules required directors of child‐​care facilities to have at least a bachelor’s degree in early childhood education, lead teachers to have at least an associate’s degree, and for home carers to have the Child Development Associate (CDA) Credential. The idea was that this would improve the quality of childcare in terms of child development.

A massive pushback from childcare workers and daycare centers against these onerous requirements led to Mayor Bowser’s administration extending the deadlines for acquiring the qualifications: home caregivers were given until December 2019, directors until 2022, and lead teachers until December 2023. Those who had continuously served in their roles for 10 years were also exempted from the requirements, giving favorable treatment to established providers against new market entrants.

But the major economic costs of the regulations remain. The time and money cost of acquiring the now‐​necessary credentials deters worker entry to the sector, or else encourages exit for those without the 10 years’ experience. The resultant lower supply of workers will raise childcare prices relative to where they would be without the regulations. Older Mercatus Center research has estimated, for example, that requiring “lead teachers to have at least a high school diploma is associated with an increase in child care costs for infants of between 25 and 46 percent, or between $2,370 and $4,350 per year, per child.” Given this is a much lower educational standard, we’d expect the price impacts of the DC legislation to be higher still.

These types of regulations are regressive. Data from Childcare Aware of America shows that already full‐​time care for a toddler in a childcare center in DC has an average cost of $23,017 per year, a massive 83 percent of the median income of a single parent. Such high costs reduce the payoff to returning to work for many individuals, or else result in substantial reductions in post‐​care disposable incomes, which could be used by families for other ends.

Proponents of the measures argue such requirements improve childcare quality. But what about the quality of care afforded to those priced out of formal childcare as a result, who then have to find more informal arrangements? And what about the quality of job opportunities afforded to the would‐​be workers?

To the extent “quality” is meaningful, it should surely be judged by parents anyway. Some families may just want a safe environment for their child while others may prioritize an environment that will stimulate cognitive development. Providers would be perfectly free to maintain and advertise that they only hire those with these qualifications absent the requirements, if that is something they believe parents demand. Let parents themselves judge the price‐​quality bundle of any given supplier, rather than enshrining a very technocratic conception of what good quality childcare looks like.

The new legislation proposed by Rep. Mace and Sen. Lee would, in effect, deliver this freer market. It simply says:

Any provision of Chapter 1 of Subtitle A of Title 5 of the District of Columbia Municipal Regulations, as added by the final rulemaking of the State Superintendent of Education of the District of Columbia issued on December 7, 2016, that requires a staff member of a child development facility to have a degree, a certificate, or a minimum number of credit hours from an institution of higher education, including sections 164.1, 165.1, 166.1(a), 170.2(a), 173.3, 174.2(a), and 174.2(b), shall have no force or effect.

H.R. 1, dubbed by its backers the For the People Act, passed the House Wednesday on a near‐​party‐​line vote, with not a single Republican in favor and only one Democrat voting against. Both the Washington Post and New York Times in recent days have seen fit to describe it as a “voting‐​rights bill.”

In fact H.R. 1 is a sprawling omnibus measure that would assert federal control over a broad array of areas of American life related not just to elections and campaigns but to the dissemination of opinion about politics and policy, as well as a range of matters yet further afield:

• Seeking to strike back against the Supreme Court’s Citizens United decision, the bill would require disclosure of the names of many persons who donate to organizations that engage in policy‐​oriented speech that falls far short of electioneering. Per a critical account by two ACLU lawyers, that would menace the confidentiality of a nonprofit that bought an ad “criticizing House Speaker Nancy Pelosi (D‐​Calif.) for supporting immigration reform or criticizing Sen. Ted Cruz (R‐​Tex.) for opposing the Equality Act.” That “could directly interfere with the ability of many to engage in political speech about causes that they care about and that impact their lives by imposing new and onerous disclosure requirements on nonprofits committed to advancing those causes.” (More about the speech implications here.) Whether that’s a good idea or a bad one, it’s not a voting rights issue.
• The bill would create a new public fund to finance congressional campaigns. Good idea or bad, that’s not a voting rights issue.
• The bill would tag more persons as lobbyists and create a new obligation for various persons connected with foreign states to say so before weighing in on social media discussions of American politics. Not a voting rights issue.
• Notwithstanding the status of the Article III judiciary as a separate and independent branch of government, the bill presumes to order the drawing up of a Supreme Court ethics code. Not a voting rights issue.
• Various provisions of the bill that do relate to voting procedure would require states to do things like adopt early in‐​person voting, liberally permit so‐​called ballot harvesting, and create independent redistricting commissions. Election Day would be made a public holiday. Whether good ideas or bad, these venture into areas of electoral reform that until recently were distinguished from voting rights as such, as well as being left to local option under our system of federalism. (Some are also very likely to be struck down as unconstitutional, whether because they repudiate the local control of elections envisaged in our constitutional design, because they “commandeer” state resources, or both.)

You can see why promoters of a grab‐​every‐​power‐​in‐​sight piece of omnibus legislation might wish to name the whole 100‐​car freight train after whichever segment of it is deemed most politically appealing. For one thing, it puts opponents in the corner as being “against the voting rights bill.” It’s not clear why others should agree to that terminology.

House Democrats introduced the American Dream and Promise Act (H.R. 6) yesterday. The primary focus on the legislation—like the Dream Act in the Senate—is to provide a path to citizenship for immigrants brought to the country as minors. Unlike the Dream Act and last Congress’s version of H.R. 6, however, this year’s version extends the path to citizenship to “legal dreamers,” foreign-born children of temporary workers who can grow up in this country in temporary status that they lose at age 21.

Along with many of the legal dreamers themselves, I've long advocated for this change, and it will have major implications not only for the kids, but for their parents and the entire employment-based system if this bill becomes law.

Previously, H.R. 6 had only allowed someone who was “inadmissible or deportable” to qualify unless they were in Temporary Protected Status (TPS), a temporary status mostly for immigrants without any other legal status. But the new American Dream and Promise Act greatly reduces this unfair discrimination against legal residents. The new language will allow anyone who “is the son or daughter of an alien admitted as a nonimmigrant” under the E-1, E-2, H-1B, and L-1 temporary work visa programs.

The H-1B program is for skilled employees of U.S. businesses working in specialty occupations. They must have college degrees. Their children are eligible to come with them and grow up in the United States in H-4 dependent status. Their employers can sponsor them for green cards. On their 21st birthday, however, they lose H-4 status and their place in the green card line and the have to self-deport or find another status such as a student visa.

The L-1 program is for skilled intracompany transfers by multinational companies, and they also may bring their minor children. L-1 and H-1B visa holders awaiting green cards are mainly from India. I have estimated that about 100,000 currently in line will age out and lose their chance to become citizens through their parent’s employer’s petition. Overall, there are more than 255,000 dependents awaiting employment-based green cards.

The E programs are for “treaty traders” who are engaging in business operations in the United States, and many are business owners. As Angelo Paparelli details in our "Deregulating Immigration" paper, the Department of Labor makes it very difficult or impossible for entrepreneurs to self-sponsor themselves for green cards, so they can spend decades here with no chance to become permanent residents or U.S. citizens. Their children also lose status at their 21st birthday.

Legal dreamers would still have to meet the other requirements in the bill: continuous presence in the United States since January 1, 2021, under the age of 18 when first coming to the United States and continuous presence since then, graduated from a U.S. high school or is enrolled in a U.S. high school or college, and has not committed certain crimes. While legal dreamers often travel internationally, the bill allows for breaks of up to 90 days and 180 days cumulatively. It also excludes any travel authorized by the Department of Homeland Security (DHS)—which, if the government adopts a reasonable interpretation, should include all travel under H-4 or other lawful status provided by DHS. Those who have already aged out and were forced to leave the country would also be allowed to apply for a green card from abroad if they departed the country on or after January 20, 2017 if they had been physically present for at least four years.

According to the plain text, the applicant's parent does not need to currently be in H-1B, L-1, or E statuses. Many legal dreamers’ parents have left the United States or received their green cards after the child aged out. The text only states that the applicants must currently be the son or daughter of someone “admitted” under those classifications, but the language doesn’t say either “who is” or “who was” admitted. Since it doesn't specify, it should include both groups (that is, anyone ever admitted under those classifications) since, in order to exclude one or the other, the language would need to explicitly state so.